Leah Manzari v. Associated Newspapers

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LEAH MANZARI, PKA Danni Ashe, No. 14-55329

Plaintiff-Appellee,

D.C. No.

v. 2:13-cv-06830-

GW-PJW

ASSOCIATED NEWSPAPERS LTD.,

Defendant-Appellant. OPINION

Appeal from the United States District Court

for the Central District of California

George H. Wu, District Judge, Presiding

Argued and Submitted February 12, 2016

Pasadena, California

Filed July 25, 2016

Before: Andrew J. Kleinfeld, M. Margaret McKeown,

and Sandra S. Ikuta, Circuit Judges.

Opinion by Judge McKeown

2 MANZARI V. ASSOCIATED NEWSPAPERS

SUMMARY*

Defamation /California’s Anti-Strategic Lawsuit

Against Public Participation Statute

The panel affirmed the district court’s order denying the

Associated Newspapers Ltd.’s motion to strike a complaint

pursuant to California’s anti-Strategic Lawsuit Against Public

Participation statute, in an action alleging defamation by Leah

Manzari, a pioneer in the online adult entertainment industry

and famous under her professional name, Danni Ashe.

Manzari alleged that Associated News Ltd., in its online

tabloid newspaper, the Daily Mail Online, used a photograph

of her to convey the defamatory impression that she had

tested positive for HIV. The panel agreed with the district

court that, at this stage in the litigation, Manzari had

presented sufficient evidence to move forward with her claim

that Daily Mail Online employees acted with actual malice

when they published an article implying that Manzari was an

HIV-positive sex worker.

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

MANZARI V. ASSOCIATED NEWSPAPERS 3

COUNSEL

Katherine M. Bolger (argued), Levine Sullivan Koch &

Schulz, LLP, New York, New York; Louis P. Petrich,

Leopold, Petrich & Smith PC, Los Angeles, California; for

Defendant-Appellant.

Steven L. Weinberg (argued), Wein Law Group, LLP, Los

Angeles, California, for Plaintiff-Appellee.

4 MANZARI V. ASSOCIATED NEWSPAPERS

OPINION

MCKEOWN, Circuit Judge:

A picture is worth a thousand words. A photograph,

especially when coupled with text, can convey a powerful

message: in this case, a potentially defamatory one. Leah

Manzari, famous under her professional name, Danni Ashe,

for her groundbreaking work in monetizing online

pornography, claims that the Daily Mail Online, an online

news outlet, used a photograph of her to convey the

defamatory impression that she had tested positive for HIV.

Defamation claims, which arise out of state law, are

significantly cabined by the First Amendment, especially

when the plaintiff is a public figure, like Manzari. In order to

prevail, Manzari must show that the Daily Mail acted with

actual malice. Defamation by implication claims pose an

additional hurdle: Manzari must first show that the article is

reasonably understood to imply the defamatory statement,

and she must then show that the Daily Mail published the

article with knowledge of the false implication or reckless

disregard for the truth of what the article implied. This case

comes to us as an interlocutory appeal under California’s

anti-SLAPP statute. Cal. Civ. Proc. Code § 425.15. We

agree with the district court that, at this stage in the litigation,

Manzari has presented sufficient evidence to move forward

with her claim that the Daily Mail Online employees acted

with actual malice when they published the article implying

that Manzari was an HIV-positive sex worker.

MANZARI V. ASSOCIATED NEWSPAPERS 5

BACKGROUND

As we explain below, we state the facts, from the

pleadings and evidence presented, taken favorably to the

plaintiff. Manzari is a pioneer in the online adult

entertainment industry. Her website www.Danni.com, which

she designed and launched in 1995, began generating multi-

million dollar revenues in the early 2000s. During this time,

“Danni Ashe” was one of the most well-known and popular

soft-core porn actresses in the world, as well as a highly

successful entrepreneur, with one of the most visited websites

on the Web. She retired from the adult entertainment

industry in 2004 and sold www.Danni.com, but the website

remains active under that name.

Associated News Ltd. publishes the Daily Mail, a popular

United Kingdom-based tabloid newspaper, which also has an

online version known as the Daily Mail Online (collectively

the “Daily Mail”). In 2013, the Daily Mail Online ran an

article covering the shutdown of the Los Angeles-area porn

industry caused by a female performer testing positive for

HIV. The headline read: “PORN INDUSTRY SHUTS

DOWN WITH IMMEDIATE EFFECT AFTER ‘FEMALE

PERFORMER’ TESTS POSITIVE FOR HIV.” After a few

lines of text, the article contained a picture of Manzari lying

suggestively across a bed with “In Bed With Danni” written

in neon lights behind her. Under her photograph was the

caption: “Moratorium: The porn industry in California was

shocked on Wednesday by the announcement that a

performer had tested HIV positive.” The article stated that

the actress was “new to the industry” and that “the performer

was not immediately identified.” Later in the article were

two other photographs, but not of Manzari. One photograph

appears to show a naked woman, whose face is not visible,

6 MANZARI V. ASSOCIATED NEWSPAPERS

leaning against a stripper pole. The other picture shows an

unidentified couple being photographed while lying on a

couch.

The beginning of the article appeared as follows; we have

redacted Manzari’s face:

MANZARI V. ASSOCIATED NEWSPAPERS 7

Immediately after the story was published, Manzari’s

attorney sent the Daily Mail Online a cease and desist letter

insisting that it remove Manzari’s photograph from the

article. The Daily Mail complied. According to Manzari, by

then the damage was done—the article had been syndicated

and “quickly spread across the globe via the Internet and

within minutes, could be seen as far as East Africa and

India.” Manzari provided examples of Google searches and

other search results revealing thumbnails that show only the

headline coupled with her photograph, without any

explanatory text.

Manzari brought a libel and false light suit against the

Daily Mail under California law, which she filed in federal

court under diversity jurisdiction. 28 U.S.C. § 1332(a)(2).

The complaint sought three million dollars in damages to

Manzari’s business and reputation. Manzari contends that the

juxtaposition of her image with the explosive headline and

caption conveyed the impression that she is the performer

who tested positive for HIV. Manzari’s claim that she does

not and has never had HIV is not contested. Instead, the

Daily Mail responds that the article made no such implication

and that, in any event, it did not intend to convey the

impression that the article was about Manzari, but instead

simply chose a stock photo to illustrate the article.

The article’s author, Daily Mail Online journalist James

Nye, claims that the name of the performer who tested

positive for HIV was unknown. To illustrate the article, Nye

asked the Daily Mail Online’s photo desk to supply him with

“some pictures representative of the pornographic film

industry that . . . contained no nudity.” He selected three

“stock” photographs, including the one of Manzari, that

“clearly conveyed the concept of the pornographic film

8 MANZARI V. ASSOCIATED NEWSPAPERS

industry, showing a camera near a woman on a bed in

lingerie.” Jack Forbes, the assistant photo editor who initially

selected the photographs from the Corbis Images database,

stated that he included the photograph of Manzari because it

was a “good, non-obscene photograph to illustrate an article

about the pornographic film industry.” According to

Manzari, the Corbis database included the following

information with the photograph: “Soft porn actress Danni

Ashe, founder of Danni.com, poses in front of a video camera

connected to the Internet in one of her studios in Los Angeles

in 2000,” although this information was not included in the

article.

The Daily Mail moved to strike Manzari’s complaint

under the California anti-Strategic Lawsuit Against Public

Participation statute (“anti-SLAPP”), Cal. Civ. Proc. Code

§ 425.16, on the ground that the defamation suit targeted the

news outlet’s protected exercise of free speech and that

Manzari could not show a probability of prevailing on the

merits of her claim. The California anti-SLAPP statute was

passed to combat “a disturbing increase in lawsuits brought

primarily to chill the valid exercise of the constitutional rights

of freedom of speech and petition for the redress of

grievances.” Id. § 425.16(a); see also id. § 425.16(b)(1) (“A

cause of action against a person arising from any act of that

person in furtherance of the person’s right of petition or free

speech under the United States Constitution or the California

Constitution in connection with a public issue shall be subject

to a special motion to strike, unless the court determines that

the plaintiff has established that there is a probability that the

plaintiff will prevail on the claim.”).

The Daily Mail argued that, as a public figure, Manzari

would be unable to prove that the news outlet had acted with

MANZARI V. ASSOCIATED NEWSPAPERS 9

actual malice when it published the article. The district court

denied the anti-SLAPP motion to strike, concluding that even

if Manzari were a public figure, “having considered the

totality of the choices and admissions made by the Mail

Online’s staff, . . . a jury could reasonably conclude that those

who created the Article intended to convey the

impression—known by them to be false—that Plaintiff tested

positive for HIV.”

ANALYSIS

This case arises from an interlocutory appeal of the

district court’s denial of the Daily Mail’s motion to strike.

Denials of California anti-SLAPP motions are appealable

orders because the statute operates as an immunity from suit,

rather than as a defense. DC Comics v. Pac. Pictures Corp.,

706 F.3d 1009, 1015 (9th Cir. 2013). Through the lense of

California’s anti-SLAPP statute, we review de novo

Manzari’s defamation claim. See Makaeff v. Trump Univ.,

LLC, 715 F.3d 254, 261 (9th Cir. 2013).

I. ANTI-SLAPP

California’s anti-SLAPP statute provides a burden-

shifting mechanism to weed out “lawsuits that ‘masquerade

as ordinary lawsuits’ but are brought to deter common

citizens from exercising their political or legal rights or to

punish them for doing so.” Batzel v. Smith, 333 F.3d 1018,

1024 (9th Cir. 2003) (quoting Wilcox v. Superior Court,

27 Cal. App. 4th 809, 816 (1994)). In Makaeff, we explained:

To prevail on an anti-SLAPP motion, the

moving defendant must make a prima facie

showing that the plaintiff’s suit arises from an

10 MANZARI V. ASSOCIATED NEWSPAPERS

act in furtherance of the defendant's

constitutional right to free speech. . . . The

burden then shifts to the plaintiff, . . . to

establish a reasonable probability that it will

prevail on its claim in order for that claim to

survive dismissal. Cal. Civ. Proc. Code

§ 425.16(b)(1); . . . . Under this standard, the

claim should be dismissed if the plaintiff

presents an insufficient legal basis for it, or if,

on the basis of the facts shown by the

plaintiff, “no reasonable jury could find for

the plaintiff.” Metabolife Int’l, Inc. v.

Wornick, 264 F.3d 832, 840 (9th Cir. 2001)

(citation and internal quotation marks

omitted).

715 F.3d at 261 (first citation omitted).

Having published an article on a topic of public interest

(i.e. the public health aspects and safety of a large California

industry), the Daily Mail easily satisfied its initial burden.

There is no serious dispute that the libel and false light suit

targeted speech protected by the anti-SLAPP statute. Cal.

Civ. Proc. Code § 425.16(e)(3) (including “any written or oral

statement or writing made in a place open to the public or a

public forum in connection with an issue of public interest”).

The burden thus shifts to Manzari to show a reasonable

probability of prevailing on the merits.1 “Reasonable

1

Because Manzari’s libel and false light claims rely on the same set of

facts and require her to prove the same elements relevant to this appeal,

we consider the two claims collectively. See Solano v. Playgirl, Inc.,

MANZARI V. ASSOCIATED NEWSPAPERS 11

probability in the anti-SLAPP statute has a specialized

meaning. The statute requires only a minimum level of legal

sufficiency and triability. Indeed, the second step of the anti-

SLAPP inquiry is often called the minimal merit prong.”

Mindys Cosmetics, Inc. v. Dakar, 611 F.3d 590, 598 (9th Cir.

2010) (internal quotation marks and citations omitted). See

Metabolife Int’l, Inc., 264 F.3d at 840 (“[A] defendant’s anti-

SLAPP motion should be granted when a plaintiff presents an

insufficient legal basis for the claims or ‘when no evidence of

sufficient substantiality exists to support a judgment for the

plaintiff.’” (citations omitted)).

California courts have repeatedly emphasized that “[o]nly

a cause of action that lacks even minimal merit constitutes a

SLAPP.” Overstock.com, Inc. v. Gradient Analytics, Inc.,

61 Cal. Rptr. 3d 29, 38 (Ct. App. 2007) (internal quotation

marks and citations omitted). “A plaintiff is not required ‘to

prove the specified claim to the trial court’; rather, so as to

not deprive the plaintiff of a jury trial, the appropriate inquiry

is whether the plaintiff has stated and substantiated a legally

sufficient claim.” Mann v. Quality Old Time Serv., Inc.,

15 Cal. Rptr. 3d 215, 223 (Ct. App. 2004) (citations omitted)

(emphasis in original). To determine whether a plaintiff has

substantiated a legally sufficient claim, courts look to the

pleadings and affidavits presented by both parties, but courts

“do not weigh credibility, nor do [they] evaluate the weight

of the evidence. Instead, [courts] accept as true all evidence

favorable to the plaintiff and assess the defendant’s evidence

only to determine if it defeats the plaintiff’s submission as a

matter of law.” Overstock.com, 61 Cal. Rptr. 3d at 38.

292 F.3d 1078, 1083 n.2 (9th Cir. 2002) (treating California libel and false

light claims as substantially equivalent).

12 MANZARI V. ASSOCIATED NEWSPAPERS

II. PUBLIC FIGURE

The threshold question that frames our defamation

analysis is a legal one. Whether an individual is a public

figure is a question of law that must be assessed through a

totality of the circumstances. See Reader’s Digest Ass’n v.

Superior Court, 690 P.2d 610, 614–15 (Cal. 1984). As the

Supreme Court articulated in Gertz v. Robert Welch, Inc.,

“[i]n some instances an individual may achieve such

pervasive fame or notoriety that he becomes a public figure

for all purposes and in all contexts. More commonly, an

individual voluntarily injects himself or is drawn into a

particular public controversy and thereby becomes a public

figure for a limited range of issues.” 418 U.S. 323, 351

(1974). Even before the Supreme Court’s public figure

analysis, we observed that public figures for defamation

purposes include, “artists, athletes, business people,

dilettantes, anyone who is famous or infamous because of

who he is or what he has done.” Cepeda v. Cowles

Magazines & Broad., Inc., 392 F.2d 417, 419 (9th Cir. 1968).

In earlier cases we have attributed public figure status to

individuals of comparable (or even less) fame than Manzari.

See Solano, 292 F.3d at 1081 (television actor on a popular

show was a public figure); Leidholdt v. L.F.P. Inc, 860 F.2d

890, 893 (9th Cir. 1988) (leader in the anti-pornography

movement, who had participated in numerous news article

and public debates on the topic of pornography, was a public

figure); Carafano v. Metrosplash.com Inc., 207 F. Supp. 2d

1055, 1071–72 (C.D. Cal. 2002) aff’d on other grounds,

339 F.3d 1119 (9th Cir. 2003) (television actress with a

popular fan website was a general purpose public figure).

MANZARI V. ASSOCIATED NEWSPAPERS 13

Manzari’s celebrity in the porn world might mean that she

is less of a household name than stars in other sectors of the

entertainment industry, but that does not make her fame any

less pervasive. The Daily Mail presented extensive support

for its position that Manzari is a public figure, including

interviews with Manzari (in her persona as “Danni Ashe”)

and news coverage related to her considerable success

performing in and marketing online soft-core porn. Among

many other new sources reporting on Manzari’s business and

career, The Boston Globe called Danni Ashe a poster girl for

the flourishing online pornography industry, The Observer

called her “the first cyberporn millionairess,” and The San

Francisco Chronicle noted that by 1999 Danni’s Hard Drive

had more than 27,000 paying subscribers. In an interview

Manzari gave to the Wall Street Journal, she stated that her

website was originally created as an extension of her “fan

club” and, as she told ABCNews.com, “[p]eople are interested

in adult entertainment. They always have and they always

will be.”

The complaint itself states that Danni Ashe is considered

“the most downloaded woman on the Internet” and that her

image has “graced the cover of the Wall Street Journal.” In

the late 1990s, Manzari competed against actress Cindy

Margolis to win the Guinness World Record for most

downloaded woman on the Internet and, according to both

ABC News and a press release from her own website, Manzari

attained the record with 841, 271, 545 downloads. In an

independent study conducted in 2000, Manzari was found to

have the most popular site run by and featuring women on the

Web, far surpassing the amount of Internet traffic for

websites of such ubiquitous celebrities as Martha Stewart and

Oprah Winfrey. She has starred in dozens of adult films, and,

in addition to giving numerous interviews, Manzari also

14 MANZARI V. ASSOCIATED NEWSPAPERS

testified before Congress during the passage of the Child

Online Protection Act in 2000. With millions of Internet

downloads, extensive publicity, and broad public exposure,

Manzari undoubtedly qualifies as a public figure.

III. REASONABLE PROBABILITY OF PREVAILING ON THE

MERITS

To prevail, Manzari will eventually need to present clear

and convincing evidence that the Daily Mail article contained

a defamatory implication and that the Daily Mail acted with

“actual malice” when it published the article with her

photograph. See Kaelin v. Globe Comm. Corp., 162 F.3d

1036, 1039 (9th Cir. 1998) (“A public figure in a defamation

case cannot recover unless he proves by clear and convincing

evidence that the defendant published the defamatory

statement with actual malice, i.e., with knowledge that it was

false or with reckless disregard of whether it was false or

not.” (internal quotation marks and citations omitted).2

However, at the anti-SLAPP stage, “[a] public figure who

sues for defamation must establish a probability that he or she

can produce such clear and convincing evidence.”

Overstock.com, 61 Cal. Rptr. 3d at 38 (emphasis added); see

also Burrill v. Nair, 158 Cal. Rptr. 3d 332, 357 (Ct. App.

2013) (“[W]e must determine [at the anti-SLAPP stage]

whether [the Plaintiff] has made a sufficient prima facie

showing of facts to sustain her burden of demonstrating a

high probability that [the Defendant] published the

defamatory statements with knowledge of their falsity or

while entertaining serious doubts as to their truth.”).

2

It is uncontested that Manzari was not the actual subject of the article

and the Daily Mail has not presented truth as a defense.

MANZARI V. ASSOCIATED NEWSPAPERS 15

At this juncture in the proceedings, Manzari is not

required to “to prove the specified claim,” Mann, 15 Cal.

Rptr. 3d at 223 (internal quotation marks omitted). She need

only convince us that her claim has “minimal merit,” and she

has done so. Overstock.com, 61 Cal. Rptr. 3d at 38. We

agree that Manzari has presented sufficient evidence—both

as to the article’s defamatory implication and the Daily

Mail’s actual malice—to survive the anti-SLAPP motion to

strike.

A. DEFAMATORY IMPLICATION

The Daily Mail did not affirmatively state that Manzari

was the performer with HIV, but the implication and the

conclusion were neither subtle nor difficult to divine. The

bold headline and its content, juxtaposed with her photograph

and yet another caption under her picture that said the

industry was “shocked” that a “performer had tested HIV

positive,” was sufficient for a reasonable reader to infer that

Manzari was the performer who had tested positive for HIV.

California law recognizes that a defamatory statement can

be either “expressly stated or implied.” Forsher v. Bugliosi,

608 P.2d 716, 721 (Cal. 1980) (internal quotation marks and

citations omitted). Thus:

“If the defendant juxtaposes a series of facts

so as to imply a defamatory connection

between them, or otherwise creates a

defamatory implication, he may be held

responsible for the defamatory implication,

even though the particular facts are correct.”

Weller v. Am. Broad. Co., 283 Cal. Rptr. 644,

652 n.10 (Ct. App. 1991) (quoting Prosser,

16 MANZARI V. ASSOCIATED NEWSPAPERS

The Law of Torts § 116 (5th ed. Supp. 1988))

(internal alterations omitted). To state a claim

for implied defamation, however, the

published statement must reasonably “be

understood as implying the alleged

defamatory content.” Id. at 651 n.8.

Price v. Stossel, 620 F.3d 992, 1003 (9th Cir. 2010).

Of course we “must examine the totality of the

circumstances of the publication.” Kaelin, 162 F.3d at 1041.

“[A] defamatory meaning must be found, if at all, in a reading

of the publication as a whole.” Id. at 1040. The Daily Mail

suggests this case is different from the classic defamation by

implication case because it did not make any statement by

including a stock photograph selected as a “good, non-

obscene photograph to illustrate the article.” This

disingenuous approach overlooks the fact that a photograph

itself can convey both an implicit and an explicit message and

that the headline, caption and photograph taken together are

also a statement. As the Supreme Court observed in a similar

context, “words and punctuation express meaning. Meaning

is the life of language.” Masson v. New Yorker Magazine,

Inc., 501 U.S. 496, 517 (1991); see also id. at 521

(concluding that misquotations of a public figure, implying he

had stated things he did not say, raised a triable jury

question). Likewise, a visual depiction can be the life of

expression.

Considering the article as a whole, we conclude that a

reasonable reader could infer that the article is about Manzari.

The headline begins “Porn industry shuts down after ‘female

performer’ tests positive for HIV,” which is followed by just

four sentences before her photograph. The picture includes

MANZARI V. ASSOCIATED NEWSPAPERS 17

her professional name “Danni” in neon lights behind her and

the bold caption below her reads “Moratorium: The porn

industry in California was shocked on Wednesday by the

announcement that a performer had tested HIV positive.”

The vague references to the unidentified “female performer”

do not clarify that the article is not about Manzari,

particularly given the size and placement of the photographs

and text.

The clarity of the implication is all the more apparent

given how news spreads across the Internet. As Daily Mail

Online—a leader and professional in online

publishing—would no doubt be aware, links to news articles

frequently appear in online search engines or other

compilations with only a headline and photograph connected

to that story. Publication of the first story was just a platform

for inevitable further online dissemination. Manzari

introduced multiple screen-shots from the Internet revealing

how the article appeared in a number of search engines and

other on-line news platforms. These images spread rapidly

across the Web once the Daily Mail Online published the

article, and, in example after example, the posting is

truncated with the headline followed directly by the “Danni”

photograph, sometimes including a caption, but without the

rest of the article to provide any further context for the image.

The Daily Mail contends that the text of the

article—specifically its assertion that the performer in

question was new to the industry and had not been

identified—is logically inconsistent with the inference that

the actress in question was Manzari. It underscores that the

explanatory text appears on the same page as the headline and

the photograph of Manzari, such that a reasonable reader

would realize that she was not the woman who had tested

18 MANZARI V. ASSOCIATED NEWSPAPERS

positive for HIV. In this regard, the Kaelin case is

instructive. There we held that: “headlines are not irrelevant,

extraneous, or liability-free zones[, t]hey are essential

elements of a publication,” and that false insinuations in a

headline on the cover page were not cured or negated by

explanatory language later in the magazine because “[a]

reasonable juror could conclude that the Kaelin article was

too far removed from the cover headline to have the salutary

effect that Globe claims.” 162 F.3d at 1040–41; see also

Davis v. Hearst, 160 Cal. 143, 187 (1911) (holding that an

article’s explanatory text did not negate the defamatory

nature of the headline).

The same is true here. A passing reference buried in the

article can hardly cure the obvious message conveyed by the

headline, photo and caption. Manzari has presented sufficient

evidence to carry her burden of showing a reasonable

probability of success on the merits regarding the first prong

of her defamation claim.

B. ACTUAL MALICE

The Supreme Court has provided a framework through

which we assess whether a public figure can move forward

with a defamation claim. In Masson, the Court explained that

“actual malice” presents a question of fact: “The

constitutional question we must consider here is whether, in

the framework of a summary judgment motion, the evidence

suffices to show that respondents acted with the requisite

knowledge of falsity or reckless disregard as to truth or

falsity.” 501 U.S. at 513. The Court concluded that “[t]he

record contains substantial . . . evidence, . . . which, in a light

most favorable to petitioner, would support a jury

determination under a clear and convincing standard that [the

MANZARI V. ASSOCIATED NEWSPAPERS 19

author acted] deliberately or recklessly.” Id. at 521.

Although the author “contests petitioner’s allegations, . . .

only a trial on the merits will resolve the factual dispute. . . .

[A]t this stage, the evidence creates a jury question whether

[the author] published the statements with knowledge or

reckless disregard of the alterations.” Id.

In implied defamation cases, “where a statement . . .

reasonably implies false and defamatory facts regarding

public figures or officials, those individuals must show that

such statements were made with knowledge of their false

implications or with reckless disregard of their truth.”

Milkovich v. Lorain Journal Co., 497 U.S. 1, 20 (1990).

“[R]eckless conduct is not measured by whether a reasonably

prudent man would have published, or would have

investigated before publishing. There must be sufficient

evidence to permit the conclusion that the defendant in fact

entertained serious doubts as to the truth of his publication.”

Time, Inc. v. Pape, 401 U.S. 279, 291–92 (1971). This

standard ensures that publishers are not held liable for

unintentional misstatements or implications, which public

figures later claim are defamatory. See Howard v. Antilla,

294 F.3d 244, 252 (1st Cir. 2002) (“[I]mplications perceived

in a statement but not intended by the speaker cannot be

actionable in public official or public figure cases.”) (quoting

Robert D. Sack, Libel, Slander, and Related Problems § 5.5.1,

at 5–64 (3d ed. 1999)).3

3

Our sister circuits have also adopted a standard of subjective awareness

of the implication. See Compuware Corp. v. Moody’s Inv’rs Servs., Inc.,

499 F.3d 520, 529 (6th Cir. 2007) (defendant must have intended or knew

of the implied meaning); Levan v. Capital Cities/ABC, Inc., 190 F.3d

1230, 1241 (11th Cir. 1999) (to show actual malice in an implied

defamation case, the plaintiff must show that the defendant “entertained

serious doubts” that the “underlying thrust” of the publication was true

20 MANZARI V. ASSOCIATED NEWSPAPERS

Defamation by implication against public figures is an

area of law “fraught with subtle complexities.” White,

909 F.2d at 518. We have not always charted a clear path

when applying the actual malice test to implied defamatory

content. Compare Hoffman v. Capital Cities/ABC, Inc.,

255 F.3d 1180, 1187 (9th Cir. 2001) (“evidence must clearly

and convincingly demonstrate that [the publisher] knew (or

purposefully avoided knowing) that the photograph would

mislead its readers”), with Newton v. Nat’l Broad. Co.,

930 F.2d 662, 680–81 (9th Cir. 1990) (holding that failure to

foresee the possible implications of a statement does not give

rise to liability against a public figure, rather the relevant

inquiry is one of subjective intent) and, Dodds v. Am. Broad.

Co., 145 F.3d 1053, 1063–64 (9th Cir. 1998) (“In order to

prevail on his claim that ABC’s direct statements impliedly

defamed him . . . [the plaintiff] must show . . . that ABC

intended to convey the defamatory impression.” (internal

quotation marks and citations omitted)). Although our cases

have referenced actual malice with some variation in

language, at its core our precedent mirrors the Supreme

Court’s requirements: knowledge of falsity or reckless

disregard for the truth.

(internal quotation marks omitted)); White v. Fraternal Order of Police,

909 F.2d 512, 520 (D.C. Cir. 1990) (defamation by implication possible

where “the communication, by the particular manner or language in which

the true facts are conveyed, supplies additional, affirmative evidence

suggesting that the defendant intends or endorses the defamatory

inference”); Saenz v. Playboy Enter., Inc., 841 F.2d 1309, 1318 (7th Cir.

1988) (“[W]here the plaintiff is claiming defamation by innuendo, he also

must show with clear and convincing evidence that the defendants

intended or knew of the implications that the plaintiff is attempting to

draw from the allegedly defamatory material.”).

MANZARI V. ASSOCIATED NEWSPAPERS 21

This case rests on the “reckless disregard” prong of actual

malice. Recognizing that California law requires only

“minimal merit” to withstand initial dismissal under the anti-

SLAPP statute, we hold that Manzari has raised sufficient

factual questions for a jury to conclude that the Daily Mail

Online acted with reckless disregard for the defamatory

implication in its article on the Los Angeles porn industry

shut-down. Manzari’s evidence is sufficient to support her

claim that the Daily Mail Online placed her photograph in the

article, juxtaposed with the incendiary headline and caption,

“[knowing or acting] in reckless disregard of whether its

words would be interpreted by the average reader as a false

statement of fact.” Solano, 292 F.3d at 1084 (internal

citations, alterations, and quotation marks omitted).

The undisputed message that the article is about

Manzari—apparent from the headline, photograph, and

caption—supports the conclusion that the Daily Mail Online

acted with reckless disregard. Though it is not enough that

the defamatory implication “should have been foreseen” by

the Daily Mail when it juxtaposed the different elements of

the article, see Newton, 930 F.2d at 680, or that an “ordinary

viewer would have perceived the implication,” Dodds,

145 F.3d at 1064, here there is evidence that Daily Mail

employees actively removed key contextual information from

the “Danni Ashe” photograph as it was presented in the

Corbis database, which stated: “Soft porn actress Danni Ashe,

founder of Danni.com, poses in front of a video camera

connected to the Internet in one of her studios in Los Angeles

in 2000.” Instead, they replaced this information with the

caption: “Moratorium: The porn industry in California was

shocked on Wednesday by the announcement that a

performer had tested HIV positive.” The publishers also

failed to include any explanation or disclaimer adjacent to the

22 MANZARI V. ASSOCIATED NEWSPAPERS

“Danni” photograph, which would have informed readers that

she was not the subject of the article. See Eastwood,

123 F.3d at 1253, 1256 (observing that “[a]s we have yet to

see a defendant who admits to entertaining serious subjective

doubt about the authenticity of an article it published, we

must be guided by circumstantial evidence,” and concluding

that the “totality of the [editors’] choices” supported a finding

of actual malice).

It is no surprise that the Daily Mail employees deny that

they understood or intended to make any implication about

Manzari. While a finding that the publisher’s testimony lacks

credibility cannot on its own sustain a finding of subjective

intent, Newton, 930 F.2d at 680, the denial must be read in

the context of other evidence. If all a publisher needed to do

was to deny the allegation, all implied defamation suits would

be dead on arrival. If, for instance, a newspaper ran the

headline: “High Profile Figure Accused of Murder”

alongside a photograph of the Mayor of New York, or

“Industry Shocked that Grocery Sprayed Veggies with

Pesticide” alongside an image of a nationally-known grocery

chain, the publishers would be hard-pressed to plausibly

claim that they had simply selected a “stock” photograph.

The same holds true for a story about the pornography

industry, featuring a picture of a world-famous pornographic

actress with her name written in neon lights behind her.4 This

sort of willful blindness cannot immunize publishers where

they act with reckless disregard for the truth or falsity of the

implication they are making. Manzari meets the “minimal

merit” threshold to avoid outright dismissal of her complaint.

4

One need only look to the Daily Mail’s own evidence of Manzari’s

public figure status to confirm the ubiquity of her image and her identity.

Her image can hardly be relegated to the status of a “stock” photograph.

MANZARI V. ASSOCIATED NEWSPAPERS 23

CONCLUSION

At the anti-SLAPP stage, Manzari has carried her burden

of “stat[ing] and substantiat[ing] a legally sufficient claim.”

Mann, 15 Cal. Rptr. 3d at 223. The district court properly

denied the Daily Mail’s motion to strike Manzari’s complaint.

AFFIRMED.