Stalking Verdict Tossed Because Acts Constitutionally Protected

A $1.1 million damages award and a jury verdict holding foreign businessmen liable for stalking a business associate after a deal with him fell through was reversed by the Ninth Circuit.

After a multimillion-dollar deal with Roderick David soured, Charif, Adam, and Tony Kazal undertook an international campaign to tell their side of the story and inform people about the “despicable crimes” committed by David, the court said.

The Kazals sent hundred of emails to David and his employees, hired protesters to picket and distribute flyers near his residence and business—Thunder Studios Inc., in Los Angeles—and had vans emblazoned with their message driven around L.A., the court said.

A jury found the Kazals liable for committing the tort of stalking, which is defined as engaging in a pattern of conduct intended to harass the plaintiff and making him reasonably fear for his safety. The law proscribes only conduct that occurs in California and exempts constitutionally protected activities.

The Kazals’ conduct was speech protected by the First Amendment and therefore is exempt from the stalking law, the U.S. Court of Appeals for the Ninth Circuit said.

The court made clear that the First Amendment was applicable, saying, even though the Kazals directed their activities from Australia, the speech was intended for and received by California residents.

The appeals court also rejected the district court’s conclusion that the Kazals’ conduct was a true threat, which would have fallen under the stalking law. Although much of the discourse was rancorous, the Kazals asked listeners to read their story about David on their website and there was no evidence actual violence was threatened, the opinion by Judge William A. Fletcher said.

Judge Carol Bagley Amon, sitting by designation, joined the opinion.

Dissenting Judge Kenneth K. Lee said that the First Amendment doesn’t extend its protection “to foreigners who lack substantial voluntary connection to this country.” The Kazal brothers shouldn’t be able “to exploit the First Amendment as a shield and a sword against those who live here,” he said.

Deutsch Hunt PLLC and Benjamin Taylor of Los Angeles represented the Kazals. Werksman Jackson & Quinn LLP and Seth W. Wiener of San Ramon, Calif., represented David and Thunder Studios.

The case is Thunder Studios Inc. v. Kazal, 2021 BL 348384, 9th Cir., No. 19-55413, 9/15/21.