Kesha’s lawyers have said that new laws designed to strengthen free speech rights in New York State must be considered in her ongoing legal battle with producer Dr Luke. The musician’s legal team think so called anti-SLAPP legislation passed in the state last year could help their client defeat a defamation lawsuit being pursued against her by the producer.
That lawsuit is what remains of a long-running, multi-layered and quite complicated legal battle between the two former musical collaborators, which – along the way – has involved litigation in multiple American states.
At the heart of it all is Kesha’s allegation of rape against Luke. He denies that allegation, and in turn alleges that she only made that claim in a bid to force his hand in contract negotiations. This means, as far as he is concerned, Kesha defamed him, hence the defamation lawsuit.
In February last year, the judge overseeing the defamation action made some initial rulings. Not regarding Kesha’s core allegation of rape, but on whether the producer was a ‘public figure’ – which would impact on the case – and also in relation to a text message Kesha sent Lady Gaga in which she also claimed that the producer had raped Katy Perry. Both those rulings favoured Luke’s side.
At the time his lawyers said those initial rulings brought their client “closer to the justice that he seeks”, adding “the court has now ruled that Kesha made a false and defamatory accusation about Dr Luke when she baselessly claimed that he raped Katy Perry” and “the court rejected Kesha’s attempts to invoke legal technicalities to avoid responsibility for her statements”.
They then concluded: “Dr Luke looks forward to the trial of his case where he will prove that Kesha’s other false statements about him were equally false and defamatory”.
However, when that trial takes place in the New York courts – likely this autumn – the Kesha team will seek to use those new anti-SLAPP laws to their advantage. Such laws seek to stop parties from using litigation of one kind or another to primarily silence the defendants in those lawsuits, a practice that can breach free speech rights under the First Amendment of the US constitution.
The main possible impact of the new anti-SLAPP laws on the Kesha v Luke case is that they could require the producer to show that Kesha’s rape allegations were made “with actual malice” in order to prove defamation. Because the court previously deemed that Luke was not a public figure, that is not currently a requirement in this case. However, under the anti-SLAPP laws, that can become a requirement even when the person claiming defamation is not a public figure, if the allegedly defamatory statement relates to issues of public concern.
In addition to that, if the court rules that Kesha’s allegations have been proven in court, the new rules could also allow the musician to seek damages from the producer.
In a new legal filing with the court on the impact of the anti-SLAPP laws on the case, Kesha’s lawyers write: “Plaintiffs’ defamation claims obviously involve a matter of public concern, and if the jury finds that Kesha’s reporting of Dr Luke’s sexual assault is truthful, it necessarily follows that Dr Luke brought this lawsuit solely to harass and [intimidate] Kesha”.
Which means, they claim, there would be grounds for Kesha to seek damages, at least to cover any costs “incurred defending his baseless and malicious claims”.
It remains to be seen how Luke’s legal team respond to this latest filing from the Kesha side.