By Grayson O’Saile

With art comes controversy, and the movie Hustlers, starring Jennifer Lopez, is no exception.  Hustlers, released September 13, 2019, is a crime drama, focusing on a group of strippers who drug Wall Street clientele in order to steal and abscond with the clients’ money.[1]  While seemingly fantastical, the movie is based on a 2015 New York Magazine article, which detailed the very real actions of Samantha Barbash.[2]  Starting after the 2008 financial crisis, Barbash led a group of women that pulled off this exact hustle, ending with the group’s arrest in 2015.[3]  Now Barbash is threatening to sue STX Entertainment (“STX”), the production company behind the film, for failing to compensate her for the use of her likeness, personality, biography and identity in the film.[4]  Barbash’s attorney, Bruno Gioffre, sent a letter to STX on September 23, protesting the “flagrant violation of her rights,” and threatening to sue if a deal is not worked out within ten days.[5]  In response, an STX spokesperson denied any wrongdoing, stating, “We will defend our right to tell factually based stories based on the public record and look forward to resolving this matter before a judge.”[6]

This possible lawsuit acts as a vehicle to examine the general state of defamation lawsuits in relation to film and television, especially the notions of “public interest” or a “public issue.”  If Barbash were to take this matter to court, STX would most likely motion to strike under California’s anti-SLAPP law like most of the production companies that have faced such a suit.[7]  “A SLAPP lawsuit, a strategic lawsuit against public participation, seeks to chill or punish a party’s exercise of constitutional rights to free speech and to petition the government for redress of grievances.”[8]  California’s Legislature, noticing a “disturbing increase” of such SLAPP lawsuits, enacted Section 425.16 of the California Code of Civil Procedure in order to “encourage continued participation in matters of public significance.”[9]  This “anti-SLAPP” law established a two-part test to determine whether a lawsuit or cause of action should be disposed of as a SLAPP suit.[10]

Under the first part, the party bringing the anti-SLAPP motion has the initial burden of showing that the lawsuit, or a cause of action in the lawsuit, arises from an act in furtherance of the right of free speech or petition—i.e., that it arises from a protected activity.  Once the defendant has met its burden, the burden shifts to the plaintiff to demonstrate a probability of prevailing on the lawsuit or on the cause of action.  Only a cause of action that satisfies both parts of the anti-SLAPP statute—i.e., that arises from protected speech or petitioning and lacks even minimal merit—is a SLAPP, subject to being stricken under the statute.[11]

The anti-SLAPP provision, in the relevant part to this discussion, defines an “act in furtherance of a person’s right of petition or free speech” as “any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.”[12]

The answer as to whether a depiction of a real individual in a fictional film or television show is such protected conduct has evolved over time.  Originally, according to Dyer v. Childress,[13] the answer was “no.”[14]  In Dyer, the plaintiff, Troy Dyer, sued the defendant, Helen Childress, and others for defamation for the depiction of his persona in the movie Reality Bites.[15]  Childress had attended school with Dyer, and used him as inspiration for a character in the film, also named Troy Dyer, without Dyer’s permission.[16]  The court held that, while movies definitely involved free speech, “not all speech in a movie is of public significance and therefore entitled to protection under the anti-SLAPP statute.”[17]  Although the movie may have addressed topics of widespread public interest (Generation X), the representation of Dyer’s persona itself was not a matter of public interest.[18]  Thus, the first prong of the anti-SLAPP provision was not met.[19]

However, the court has seemingly reversed its position on this issue.[20]  In Tamkin v. CBS Broadcasting, Inc., a writer for the crime show CSI: Crime Scene Investigation used the names of the Tamkins, married real estate agents, as placeholder names for characters in a script for the show, who also were married real estate agents.[21]  The couple in the show were depicted as being in marital discord, and the husband was implicated in the murder of his wife, which was later ruled a suicide.[22]  A draft of the script was leaked, and the Tamkins sued for defamation.[23]  The Tamkins relied on Dyer as support for their position, but the court distinguished Dyer, essentially implicitly overruling the case.[24]  The court reasoned that the creation and broadcasting of the show was of public interest, so the underlying creative process for developing the show was an act connected to the public interest.[25]  An issue of public interest does not have to be significant to be protected by the statute.[26]  The issue just needs to be any issue in which the public is interested.[27]  The court also held that the statutory language of Section 425.16 had no requirement that “the plaintiff’s persona be a matter of public interest.”[28]  As such, as long as a film is about a matter of public interest, the public interest prong of Section 425.16 is met, even if the plaintiff’s persona is not of public interest.  If an episode of CSI is considered inherently public interest, then essentially all films or television shows are of public interest and will meet the first prong of the anti-SLAPP provision.

In Barbash’s case, the Dyer distinction does not matter as much.  Since Barbash relayed her story to New York Magazine, she arguably inserted herself into the discussion of a public topic or debate, which made her a person in the public eye.[29]  However, even if there had never been an article about Barbash, her depiction in Hustlers satisfies the low bar for the public interest prong of the anti-SLAPP provision.  Her illicit scheme to swindle her Wall Street clientele is inherently of public interest, at least as much as an episode of CSI is inherently of public interest.  Thus, the creative process behind developing and producing the film, including Barbash’s depiction in the film, is an act related to a matter of public interest.  Whether her private persona is of public interest (which it arguably is) is of no consequence.  Thus, Barbash’s depiction in “Hustlers” meets the first prong of the anti-SLAPP provision’s test.  Therefore, the burden would shift to Barbash to show she has a probability of prevailing on the lawsuit.

This seems like the proper operation of the anti-SLAPP provision.  It seems evident that Barbash’s story is one of public interest, of public record, and Barbash inserted herself into the public eye.  Therefore, she should have the burden of proving a probability of prevailing in the lawsuit to ensure her lawsuit is not of a frivolous nature.  The issue, however, is with cases that may straddle the line between being able to prove a probability of prevailing and not.  An important feature of the anti-SLAAP motion to strike is that it automatically stays discovery.[30]  Since a film or television show almost automatically meets the public interest prong of the provision, a plaintiff suing for defamation regarding their portrayal in such a medium will likely never have the luxury of discovery.  In most cases, this will not be an issue, as a plaintiff with the burden of proving a probability of prevailing on the claim only has to show the claim has minimal merit.[31]  However, in those close cases, the anti-SLAPP provision may have the unintended consequence of ending claims that have merit before they begin.  The extra hurdle of having to defeat an anti-SLAPP motion to strike, along with the lack of discovery, may convince plaintiffs that a defamation suit, even with merit, is not worth the hustle to pursue.

[1] Hustlers (2019), (last visited Sept. 30, 2019); Laura M. Holson, ‘Hustlers’: The Story Behind the Headlines, N.Y. Times (Sept. 15, 2019),

[2] Jessica Pressler, The Hustlers at Scores, N.Y. Mag. (Dec. 28, 2018),

[3] Id.

[4] TMZ, ‘Hustlers’ Inspiration Samantha Barbash Threatens Lawsuit (Sept. 23, 2019),; Tyler McCarthy, Jennifer Lopez’s ‘Hustlers’ Inspiration Threatens Lawsuit for Use of Her Story in the Hit Film, Fox News (Sept. 24, 2019),

[5] Gene Maddaus, STX Defends Artistic Freedom as Inspiration for ‘Hustlers” Ramona Threatens Suit, Variety (Sept. 23, 2019),

[6] Id.

[7] See, e.g., Sarver v. Chartier, 813 F.3d 891 (9th Cir. 2016); Brodeur v. Atlas Entertainment, Inc., 204 Cal. Rptr. 3d 483 (Cal. Ct. App. 2016); Tamkin v. CBS Broadcasting, Inc., 122 Cal. Rptr. 3d 264 (Cal. Ct. App. 2011); Dyer v. Childress, 147 Cal. Rptr. 3d 544 (Cal Ct. App. 2007).

[8] Tamkin, 122 Cal. Rptr. 3d at 270 (quoting Rusheen v. Cohen, 128 P.3d 713, 717 (Cal. 2006).

[9] Cal. Civ. Proc. Code § 425.16(a) (West 2019).

[10] Tamkin, 122 Cal. Rptr. 3d at 270.

[11] Id. at 270–71.

[12] Civ. Proc. §425.16(e)

[13] 147 Cal. Rptr. 3d 544, 551 (Cal. Ct. App. 2007).

[14] Dyer, 147 Cal. Rptr. 3d at 551.

[15] Id. at 545.

[16] Id. at 545–46.

[17] Id. at 548.

[18] Id.

[19] Id.

[20] Tamkin, 122 Cal. Rptr. 3d at 272.

[21] Id. at 267.

[22] Id. at 268

[23] Id.

[24] Id. at 272. The Ninth Circuit has also distinguished Dyer in a similar fashion. See Sarver, 813 F.3d at 902 (holding that, regardless of the portrayal of plaintiff’s private persona in The Hurt Locker, the Iraq War, and plaintiff’s work during it, were of public concern, so the public interest prong was met).

[25] Id. at 271–72

[26] Id. (citing Nyg̥ard, Inc. v. Uusi–Kerttula, 72 Cal. Rptr. 3d 210, 220 (Cal. Ct. App. 2008)).

[27] Id.

[28] Id. at 272

[29] Brodeur, 204 Cal. Rptr. 3d at 491 (holding that since plaintiff was a well-known author in the environmental field, he had inserted himself into the public eye, meaning he met the first prong of the anti-SLAPP provision).

[30] Cal. Civ. Proc. Code § 425.16(g) (West 2019).

[31] Tamkin, 122 Cal. Rptr. 3d at 270–71.