Michael Jackson’s estate will likely take HBO into an arbitration proceeding over a dispute about the broadcaster’s recent documentary, Leaving Neverland, in which two men accuse Jackson of molesting them when they were children. HBO had filed a motion to have the estate’s case dismissed as frivolous, but Judge George Wu issued a tentative ruling today denying that motion.
While a final ruling will not be released for several weeks, the tentative ruling comes as something of a surprise. As Variety reports, it was Judge Wu himself who suggested that HBO file the motion, called an anti-SLAPP motion, which he now seems likely to reject.
Anti-SLAPP motions are specifically designed to toss out lawsuits that appear to be filed specifically with the intent of “chilling speech on issues of public interest,” precisely what HBO contends is at issue in this case.
“It was filed to tell the world ‘Don’t talk about child sex abuse,’ HBO attorney Theodore Boutrous said in court on Thursday, adding that HBO felt a particular responsibility to use their position and resources to fight on First Amendment grounds. “A company like HBO might be able to fight back and move forward. Others might not be able to do that.”
The judge appears to be sympathetic to HBO’s position, but the tentative ruling indicates he intends to deny the motion on something of a technicality: The estate demanded an arbitration proceeding, not a court trial, and he was unconvinced the anti-SLAPP statute was intended to be used in cases of arbitration.
The basis of the estate’s lawsuit, which seeks $100 million in damages from HBO, is a 1992 agreement between HBO and Jackson. The then-new cable channel signed a deal with Jackson’s management to tape and air a concert special, Michael Jackson in Concert in Bucharest: The Dangerous Tour. In the contract to produce that special, there was a non-disparagement clause, which the estate asserts should still be enforced, and that Leaving Neverland constitutes disparagement.
“HBO profited off the Dangerous World Tour by airing a concert from the tour and promoting Michael Jackson’s talents,” the estate writes in the complaint, filed in March. “Now, HBO is profiting off the Dangerous World Tour by airing a ‘documentary’ that falsely claims Michael Jackson was abusing children on the same tour. It is hard to imagine a more direct violation of the non-disparagement clause.”
Lawyers for HBO contend that the 27-year-old concert special contract is both expired and irrelevant to Leaving Neverland, which was an entirely unrelated production.
The popular documentary faces another type of judging at this weekend’s Emmy awards; it’s nominated for achievement in five categories.