News and notes from the legal frontier: Hunter’s retort to Fox, a new definition of revenge porn, and a Bryan Freedman twist.
Of course Hunter Biden has hired ubiquitous entertainment industry litigator Bryan Freedman—yes, the same attorney who has advised Chris Cuomo and Megyn Kelly and Tucker Carlson—to threaten Fox News with legal action over its unhealthy obsession with him. Having marshaled a legal team that also includes fellow heavy hitters Mark Geragos and TinaGlandian, Hunter is making it abundantly clear that he won’t tolerate being continually smeared with what he describes as baseless allegations linking him and his dad to a bribery scheme. His message to Fox News? Clean up your act, set the record straight, and ax The Trial of Hunter Biden from the Fox Nation streaming service.
While word of these demands is spreading like wildfire in the media, don’t hold your breath waiting for the letter itself to appear on mainstream news sites. That’s likely because the demand letter is NSFW. Yes, the notorious intimate snapshots from Hunter’s stolen laptop have found their way into The Trial of Hunter Biden, which his legal team argues is a breach of “revenge porn” statutes and constitutes a copyright infringement. But rather than simply, and chastely, asserting the illegality of publishing someone’s selfies sans consent (the Freedman letter nods to Ellen DeGeneres’ iconic Oscar photo a decade ago, where Bradley Cooper inadvertently became the “author” simply by holding the camera), Hunter’s legal squad has gone one step further by including the risqué images themselves. That’s highly unusual, in my experience, and likely a tactic to limit circulation of the letter. (I’ve gotten my hands on it, but I’ll spare you.)
As for the bribery allegations, Team Hunter points to the recent indictment of former F.B.I. informant Alexander Smirnov, who was charged with fabricating a story about Joe and Hunter Biden accepting $5 million each from Ukrainian energy company Burisma. They cite Fox’s “brazen” and “no remorse” coverage of Smirnov’s arrest, and demand that Sean Hannity, Jesse Watters, and Maria Bartiromo inform their viewers that they’ve been sharing a debunked allegation from an indicted source. (There’s no obligation under libel law for follow-up coverage of new facts, although Fox could mitigate damages for past defamatory statements.)
Then, there’s the alleged commercial use of Hunter’s name, image, and likeness in The Trial of Hunter Biden, a six-part dramatization of “how a possible Hunter Biden trial might look.” From a legal standpoint, this might be the most noteworthy claim in the entire letter, given that news organizations everywhere will soon be able to harness artificial intelligence to simulate this sort of stuff. (Sidebar: Anyone think of taking the transcripts of the Donald Trump hush money trial and using A.I. to take viewers inside the New York courtroom? How will the federal judiciary respond when technology is used to evade bans on the filming of court proceedings?)
Hunter’s lawyers argue that the newsworthiness exception to New York’s name-and-likeness protection laws don’t apply to The Trial of Hunter Biden because it’s essentially fiction, or at least an imagined portrait of future events. Potentially problematic for Hunter’s team, the fictionalization doesn’t necessarily render the series a commercial use of his name. Regardless, courts have scrutinized efforts to dress up a dramatization as “unalloyed truth.” And here, as the letter itself acknowledges, Judge Joe Brown, the TV magistrate who “presides” over this “trial,” tells viewers, “This is a mock trial. It is not a real proceeding. To be clear, Hunter Biden has not been implicated in or charged in any crimes arising from his activities, alleged activities.” Still, Fox News spokesperson tells me that out of an abundance of caution, it has removed the series from its streamer while they evaluate the concerns raised.
The series could come back—sans nudity, I’d guess. But regardless, I expect the larger topic of news organizations taking creative liberties will resurface, especially as lawmakers discuss broadening and federalizing name-and-likeness laws in reaction to deepfakes. (Read the testimony in Congress today.) Hey, wouldn’t it be something if that policy debate gets impacted by Fox News’ taste for graphic images?
Speaking of Bryan Freedman…
A few weeks ago, I highlighted a new lawsuit filed against Freedman, as well as a motion for recusal in another case, cautioning that sometimes lawyers can face consequences for overly relying on the media for strategic advantage. I drew parallels to Michael Avenatti, much to Freedman’s chagrin, as he understandably disliked being compared to the disgraced lawyer currently behind bars for extorting Nike. Well… now it seems Freedman finds himself confronting an accusation of extortion as well.
The case involves Christian Lanng, the former C.E.O. of a billion-dollar company called Tradeshift, who stands accused of coercing his executive assistant into a “slave contract” and then sexually abusing her. He responds that the two were consensually into BDSM. A lawsuit is now playing out like Fifty Shades of Grey gone horribly wrong, where the #MeToo movement reckons with the power dynamics of bondage in the workplace.
In 2022, Lanng’s assistant—called “Jane Doe” in her lawsuit—entered into a $10 million structured settlement that drew from money raised by Tradeshift. Afterward, she received “holding” payments totaling $675,000. However, disbursement of the rest of the $10 million faced delays due to unspecified complications with the company’s investors. It was then that Doe hired Freedman.
Freedman reached out by text to Lanng last September, warning that he could face media exposure unless $10 million was paid to Jane Doe. Freedman texted Lanng, in part, “I have been asked by a major media outlet if you would appear to explain your side of the story this week in conjunction with the claims being filed. They can have you appear by zoom.” Lanng replied, “Bryan, I will get back ASAP with new counsel, any kind of media will not help achieve any outcome I’m afraid.” Freedman responded, “Christian, I don’t control the media as you know but once filed cases take on lives of their own.”
That month, amid accusations from a second woman and other rumors of misconduct, Lanng was fired as C.E.O. of Tradeshift. He now blames Freedman for his ouster, accusing his firm of orchestrating the creation of “fake websites” and “fabricated” Twitter accounts to smear him. (Freedman vehemently denies these claims.) Lanng also has brought a counterclaim against him for extortion over the threats to go to the media.
While it wouldn’t be fair to equate Freedman’s present civil situation to Avenatti’s criminal situation (which, incidentally, also involved Geragos), Lanng’s counterclaim warrants a few words on what courts evaluate in such circumstances. For instance, a judge may assess whether any threats of exposure by Freedman were “inextricably tied” to a pending complaint to authorities, in which case they’re likely protected by the First Amendment, or whether the threats occurred independent of a legal action, in which case they might not be. A judge might also evaluate whether there was a threat to ruin someone’s reputation, and whether that had some “nexus to [a] claim of right.” Incidentally, in the Avenatti case, an appeals court noted in passing that threatening to disclose the sexual indiscretions of an executive lacks such a nexus—although the court wasn’t faced with this exact, totally bizarre situation. So who knows?
In any event, Freedman tells me, “For him to now try and play the victim and turn this around is transparently preposterous. It’s not legal or factual extortion to fight on behalf of your client to get them what they are rightfully entitled to. The cross complaint is nothing more than his desperate attempt to deflect from his own abuse as reflected in his own slave contracts.”
