On Friday, a California federal court will play host to an important hearing in actress Zhang Ziyi's defamation lawsuit against U.S.-based China Free Press and a journalist over published claims that she is a prostitute who has earned more than $100 million for having sexual relations with high-ranking Chinese officials.
The battle has enormous stakes.
Zhang, who has starred in such films as Crouching Tiger, Hidden Dragon, Hero and Rush Hour 2, is looking to force Weican Null Meng, who writes for the Chinese dissident news website Boxun, to give up the sources that led to his prostitution reports. Zhang says the scandal has cost her quite a bit of income in the entertainment industry and ruined potential endorsement deals with luxury designer brand Michael Kors, French automaker Citroen and others.
But this is hardly the typical defamation case.
The defendants are gearing up for the Friday hearing that will determine whether and how the lawsuit proceeds. Lives will be on the line.
The stories originally gained attention not only due to the inclusion of a famous actress but also Bo Xilai, a former member of China's Communist government who was ousted from his post and entangled in a political scandal that forced his house arrest on charges of playing a role in the murder of a British businessman. The scandal drew international news attention, and Meng reported an untold aspect of the story -- that Bo and other high-level Communist Party officials in China had hired Zhang as a prostitute.
The stories were picked up by a plethora of news outlets including CNN, The Huffington Post and Yahoo.
Zhang's libel lawsuit that followed said the prostitution story was based on anonymous stories and not true at all and that when Boxun News was contacted about the falsity of the allegations, the publication refused to run a retraction.
Meng's attorney Marc Randazza then stood up to challenge the lawsuit as a "SLAPP," meaning an alleged use of the legal process to interfere with his client's First Amendment rights. In this instance, Randazza said the actress' legal move "seemed like a clever Chinese government plan to flush out the source, or, as a consolation prize, to shut down a journalistic gadfly."
In bringing an anti-SLAPP motion to strike the claims, Randazza also says the suit was filed "solely to create a Hobson's choice for its defendants: Either divulge their anonymous sources inside the People's Republic of China so that they may be subject to cruel, unusual and inhumane persecution, or surrender their own rights to free expression under the United States Constitution."
During the course of the litigation, Meng testified that there were three sources that formed the basis of his reports. "Source A" was someone Meng had relied upon extensively in the past who had learned the information from a Chinese businessman who was arrested as part of the corruption case against Bo. This primary source is described by the journalist as having a track record of reliability. "Source B" was an entertainment industry insider or a researcher in the social science area who had familiarity with the entertainment business. "Source C" was a freelance reporter Zhao Yan, who formerly worked for The New York Times and was arrested in China for leaking info about the Chinese leadership to foreign media.
Meng's attorneys has submitted a declaration from David Ardia, a media law professor at the University of North Carolina, who met with Meng about her sources, reviewed materials and documents in the case and conducted a post-publication libel assessment. His conclusion? "There is no basis to correct or retract the stories at issue in this case," he says in court documents.
Meanwhile, Zhang's attorneys at the Glaser Weil Fink law firm call the information provided by these sources to be "nothing more than rumors, innuendo and hearsay -- several if not many times removed."
Additionally, they have submitted their own declarations attacking the journalism practices of the defendants. For example, Hollywood attorney Larry Stein has submitted his own opinion in which he states it to be remarkable and against industry practice that Meng never attempted to verify his story with Zhang's representatives. He says that at a minimum, this demonstrates a reckless disregard for the truth.
He also says that "if reporters are permitted to write false statements and then hide behind anonymous sources known only to them allegedly out of concern about what might happen to such sources if they are disclosed, they can say whatever they want with impunity."
Friday's hearing will get into all sorts of legally tricky issues.
One is jurisdiction. Should a North Carolina-based journalist who has written about a Chinese actress receiving $100 million from Chinese officials in exchange for sexual services be forced to defend litigation in California?
Another has to do with whether Zhang needs to post a $200,000 bond for the case to continue. If Zhang loses on the anti-SLAPP motion, California law provides the defendant with the possibility of recovering legal fees. Meng's attorneys say they don't want a situation where Zhang, a Chinese citizen, can skip out on paying; Zhang's attorneys say the bond motion is moot because the concurrently heard motion to strike the lawsuit will settle this money issue.
And finally, the hearing will resolve how the case proceeds.
In reaction to Meng's anti-SLAPP motion, the actress' attorneys say that their lawsuit isn't meritless -- that she has a right to her reputation and business interests. The plaintiff says Meng has failed to meet the burden of showing the alleged defamatory statements concern an issue of public interest, arguing that supposed "sex deals" don't have much to do with a "major political scandal." The plaintiff say they have alleged sufficient evidence to prevail on their claims that the defendants acted with actual malice by avoiding the truth in regards to libelous statements. And Zhang's attorneys say that at a minimum, their client is entitled to know more about these confidential sources.
"The identities of Defendants' sources are necessary to test their veracity and reliability and to determine whether such sources even exist," Zhang's legal papers say.
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