Next Wednesday, producers of David O. Russell‘s 2013 film American Hustle will attempt to nuke a lawsuit brought by Paul Brodeur, an expert in the biological effects of electromagnetic fields.

The legal action filed in Los Angeles Superior Court has prompted what the plaintiff has termed the “Ditzy Defense.”

Brodeur made his $1 million libel claim last October against Columbia Pictures, Atlas Entertainment and Annapurna Pictures over a comment from Jennifer Lawrence‘s character Rosalyn in the film.

In a scene, Rosalyn tells her husband, played by Christian Bale, that microwaves take the nutrition out of food.

After Bale’s character responds, “That’s bullshit,” Rosalyn shows him a magazine and says, “It’s not bullshit. I read it in an article. Look, by Paul Brodeur.”

Brodeur happens to be a real-life science writer, who around the time when the movie is set, was giving interviews about the safety and dangers of microwaves.

In 1978, for instance, when People Magazine asked him if there was “any danger in eating food cooked by microwaves,” Brodeur answered, “None that is known.”

Brodeur asserts he’s been harmed by being named as the source of scare-mongering.

“If an expert in evolution, such as Stephen Jay Gould, was misquoted as saying that he now believes that God created the world six thousand years ago, his reputation as a scientist would be seriously damaged,” Brodeur’s lawyer Leon Friedman wrote in a March 16 memo. “If a noted astronomer, such as Carl Sagan, was misquoted as saying that he now believes that the Sun revolves around the Earth, that would certainly undermine his reputation as well. The same is true here.”

In reaction to the lawsuit, the production companies have filed a motion to strike based on California’s anti-SLAPP law, which is meant to deter frivolous litigation concerning First Amendment rights. The judge’s forthcoming analysis will depend on two factors.

First, the judge will consider whether the activity Brodeur names as harmful furthers the producers’ free speech on a matter of public interest? If not, the lawsuit proceeds.

Motion pictures like American Hustle are unquestionably expressive speech, so the judge will likely focus whether there was an issue of public interest implicated. The film loosely depicts the FBI’s late ’70s, early ’80s “Abscam” sting operation, which resulted in convictions of prominent politicians and gained media focus. But…

“Clearly, the statement attributed to Mr. Brodeur concerning microwave ovens has no relation whatever to the claimed protected activity of public interest,” argues Brodeur’s side, attempting to put the focus on part of the movie rather than the whole of the movie.

That might be true, though in his own March 24 memo, the defendants’ lawyer Louis Petrich spends some ink deconstructing the scene in question, writing how the film’s reference to Brodeur and microwaves “advanced the broader exploration and evocation of late 1970s culture,” how the scene “underscored the adversarial personal relationships between the main characters” and how those “relationships are part of the movie’s story and a focus of the public’s interest in it.”

Petrich also talks about the “current trend in Anti-SLAPP case law… to give broad protection to actions even very indirectly related to or supporting exercise of [free speech] rights in connection with a public interest.”

There’s probably a more direct path towards victory for the producers on this prong. Given that Brodeur is claiming his reputation was harmed in the community, the implication is the public cares about what this expert has to say about microwaves.

Thus, the judge will likely move onto an examination of the second SLAPP factor on whether Brodeur is likely to prevail on the merits of his claims. If so, the lawsuit proceeds. If not, the lawsuit dies (and Brodeur might have to pay the other side’s legal costs).

Here’s where the case gets very provocative because it’s not the typical type of defamation lawsuit against, say, a newspaper purporting to publish truthful statements. Nor is it exactly a libel-in-fiction lawsuit either. Those are rare, but they do happen, and at least a couple have been successful so long as plaintiffs can show that statements are “of and concerning” them.

In the zone of non-fiction and fiction, American Hustle is a hybrid — a fictional work that’s based on true events. Or as its opening title card intones, “Some of this actually happened.”

Yes, says the producers’ memo, but “as a matter of law, the statement made by ‘unhinged’ fictional character Rosalyn in the ‘screwball farce’ American Hustle is not reasonably understood as a statement of fact.”

The plaintiffs are calling this the “Ditzy Defense,” opining, “What the defense means is that any time a publisher or movie company wants to defame a living person, all they have to do is present a “ditzy” person who can say anything about that person without any concern for possible legal action in the future. The “ditzy” defense cannot be decided at this stage of the proceeding. It is up to a jury to make such a determination.”

Petrich disagrees, arguing that the judge can employ a “totality of circumstances” test to measure whether a statement is actionable. He claims that it’s appropriate for the judge to rule that a reasonable moviegoer would conclude that Jennifer Lawrence plays a character of “unreliable nature.” And he swings back to Brodeur’s comparisons to what would happen if someone misquoted Stephen Jay Gould on the genesis of the Earth or Carl Sagan on the sun revolving around the Earth.

“Even if Plaintiff’s comparison were legitimate, it would not matter what Rosalyn attributed to Stephen Jay Gould or Carl Sagan during a marital spat with ‘Irving,’” writes Petrich. “Reasonable persons would recognize that they are watching a ‘screwball comedy’ in which nothing the Rosalyn character says can be taken as fact.”

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Source: New York Post