Lisa Ann v Nikki Benz – A Legal Analysis

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I was hesitant to get involved in legal drama that happens outside of Australia (in fact, I tend to stay out of drama in Australia as well) but some interesting things are occurring between Lisa Ann and Nikki Benz at the moment and I wanted to investigate the legal aspects of what is going down. I think it is important to remember that I am (1) not a US lawyer and therefore the legal information I am providing is that of a legal observer rather than a legal adviser; and (2) I am in no way affiliated with either Nikki Benz nor Lisa Ann (though I did happen to write a scathing report about Lisa Ann’s video clip about sex work here  —> https://kvalegal.wordpress.com/2015/01/25/open-letter-to-lisa-ann-porn-star/)

Earlier this morning, AVN went to the extraordinary length to publish this article – http://business.avn.com/articles/legal/Nikki-Benz-Files-Anti-SLAPP-Motion-Challenging-Lisa-Ann-TRO-589754.html.

Firstly, What Is A TRO?

a “TRO” is short for a Temporary Restraining Order which can be filed in the Californian courts by using this form —> http://www.courts.ca.gov/documents/dv110.pdf.

A Temporary Restraining Order is not the same as an Apprehended Violence Order in Australia. It has similarities but a Temporary Restraining Order does not need to have an element of violence or threat of violence in order to obtain it (And it is important for me to state that it does not in any way suggest that there has been violence between Lisa Ann and Nikki Benz. Unlike an Apprehended Violence Order in Australia, a Temporary Restraining Order can ask the Courts to do a few things:

  1. Prevent a person from harrassing, attacking, striking, threatening, assaulting (sexually or otherwise), hit, follow, stalk, molest, destroy personal property, disturb the police, keep under surveillance, impersonate or block movements;
  2. Prevent a person from communicating or contacting the other person (including by electronic means);
  3. Prevent a person from taking any action to obtain the location of the persons who has brought the application.

The Temporary Restraining Order can also ask the person who has the Order made against them to “stay away” from the person, any related persons named in the Order, the home, workplace, vehicle or school of any children.

The Temporary Restraining Order can also ask the person who has made the Order to “move out”, that is, take all personal belongings with them. It also can prevent someone from owning or possessing (or trying to possess) a gun, not record any unlawful communications and a few other things which I do not think are relevant to this matter.

How Easy Is It To Obtain A TRO?

Not very easily according to this source, John Corcoran of Smart Business Revolution –> http://smartbusinessrevolution.com/how-to-get-a-restraining-order-in-california/ states:

“Getting a restraining order is no easy process.

There’s a reason why it’s not easy:  a restraining order severely limits the ability of a person to move around as they choose.

Courts are naturally going to be cautious about issuing these orders so that they don’t go around issuing mistaken orders restraining people from going certain places or being around certain people.”

Not that the source is a non-legal one, but it certainly makes sense. Given a Temporary Restraining Order allows so many things to be done or stopped, it could easily be misused if easily obtained. However, if we look to an example of where a Temporary Restraining Order has been denied (here at —> http://www.documentcloud.org/documents/1311481-opposition-to-tro-application-cruz-v-california.html), we can see that the Court, when deciding whether to grant a Temporary Restraining Order, will take into account:

  • Whether the plaintiff would be likely to prevail on the merits of the case at trial; and
  • The balance of harm weighed against the plaintiff.

What Happens If A “TRO” Is Breached?

If a “TRO” is violated and a police officer “has probable cause to believe that the restrained person had notice of the order and has disobeyed the order”, the restrained person can be arrested.

What Has Nikki Benz Done In Response?

Today, at 1.23pm, AVN announced that Nikki Benz had filed an “anti-SLAPP” motion in the Los Angeles Superior Court. The hearing on the motion is scheduled for 26 March 2015. Nikki Benz tweeted, shortly after the AVN announcement, the following:

“Remember kids, if you’re going to bully me online, but then cry wolf and pull a publicity stunt, I will take every legal action.”

What Is An Anti-SLAPP Motion?

An “anti SLAPP” stands for “Strategic Lawsuit Against Public Participation” – in other words, it is a motion to stop a strategic lawsuit against public participation. In an academic article that looks into SLAPP (http://digitalcommons.lmu.edu/cgi/viewcontent.cgi?article=2214&context=llr) it states that the reason for the legislation which allows an “anti-SLAPP” motion is based on the following:

The Legislature finds and declares that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the Constitutional rights of freedom of speech and petition for the redress of grievances. The Legislature finds and declares that it in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process.

An “anti-SLAPP motion” is pursuant to California’s Code of Civil Procedure § 425.16. To cut an extraordinarily long legislative story short, this motion is essentially Nikki Benz’s way of stating that Lisa Ann’s actions against Nikki Benz is an abuse of process, that is it frivilous and vexatious and that it is stopping Nikki Benz from her Constitutional right to free speech. An anti-SLAPP order is more or less a “put up or shut up” to someone who is (as the person to the anti-SLAPP motion alleges) abusing court process to stop someone from “publicly participating”. An anti-SLAPP motion places a costs burden on Lisa Ann, stating that if the anti-SLAPP motion goes ahead, Lisa Ann should bear all of the legal costs that Nikki Benz has suffered as a result of the litigation that has ensued.

AVN, in their article refers to this article —> http://www.popehat.com/2012/06/07/why-yes-i-am-into-slapping/ which gives quite an interesting explanation of how someone has run an anti-SLAPP motion.

I guess it will now be for the Los Angeles Superier Court to decide the future of Lisa Ann and Nikki Benz’s current litigation but somehow I don’t quite think we’ve seen the end of this very public stoush between two big porn players.

(If you are a US lawyer or you have further comments you’d like to make about this matter, please don’t hesitate to leave comments – as I said, I’m not a US lawyer nor expert on US law so if I have misread something or haven’t quite got it right, don’t hesitate to make comment!)

KVA

@KVALEGAL

** Image from Nikki Benz @NikkiBenz Twitter

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