Would Baldoni win his case against The New York Times? I’d say it’s about as likely as an Oscar nod—long odds, indeed. What, exactly, is the filmmaker-actor accusing the Times of getting wrong? It’s murky. Yes, he’s ticked off that Megan Twohey, who famously exposed Harvey Weinstein’s history of sexual crimes while reporting alongside Jodi Kantor, presented a lopsided narrative of his alleged misdeeds. But let’s be clear: Bias isn’t illegal. Only demonstrable falsehoods can qualify as defamation, and complaints about vague character attacks don’t usually hold up in court, particularly in California, where anti-SLAPP laws encourage judges to quickly toss cases that interfere with free speech. The bulk of Baldoni’s 87-page complaint appears aimed more at the court of public opinion than the judiciary, emphasizing his side of the he-said, she-said beef. Take Lively’s accusation of Baldoni’s unwanted kissing and discussion of his sex life: He counters that she refused to meet with the production’s intimacy coordinator, and that the creative process involved collaboratively designing scenes, which he found appropriate. This alternate narrative, however, is just that—an alternate narrative. In other words, a different interpretation of the same facts. You have to look past long digressions, which have nothing to do with what the Times reported, to discern what Baldoni alleges that the paper factually misstated. Baldoni, for instance, says he did not agree to a 30-point list of Lively’s demands after she raised concerns about his behavior, stating he was never even presented with such a document. Yet the Times never mentioned such a list; rather, it noted that Baldoni’s company, Wayfarer, had agreed to terms to ensure a safe work environment. Even if the Times made an error, or insinuated that Baldoni was guilty of sexual harassment, how much responsibility does the paper bear in conveying Lively’s account? This question introduces some legal nuances. While publications can be liable even when quoting others, repetition of someone’s complaint to a government body like a court or administration agency typically receives protection under the “fair report privilege.” This legal shield is vital, allowing journalists extra latitude to cover issues in the public interest, such as how the government functions and how it handles disputes that require government intervention. There’s even a vetting process—lawyers confirm the veracity of what they submit in court, under the penalty of sanctions or even the loss of their licenses to practice law. Journalists, such as myself, often rely on their diligence. Still, when I first saw the Times story, I wasn’t clear whether this privilege would apply. Was Lively’s complaint actually filed with the California Civil Rights Department? Did anyone check—or was the story based on some embargoed copy and rushed once TMZ published its own version? And did Twohey and the other reporters expand their investigation beyond the complaint? The Times claimed its story was grounded in a thorough review of “thousands of pages of original documents.” Was that puffery? I’ve spent the last few days digging into the editorial process and speaking with insiders off the record, and I’m still not absolutely certain privilege will apply. Fortunately for the Times, there are probably other defenses at play, but it also wouldn’t be a surprise if things get messy before this saga is resolved.

One mystery in particular has captivated the legal community regarding Baldoni’s lawsuit: Why opt for a California state court? After all, not only is there an expansive state anti-SLAPP law that swiftly dismisses meritless cases, it also awards legal costs—meaning Baldoni could be forced to pay the Times’s legal fees. Plus, the Times can kick this to federal court and pursue an immediate appeal if its anti-SLAPP bid fails. In other words, don’t expect a trial anytime soon. When I contacted Freedman, he was uncharacteristically tight-lipped about his strategy. My guess? He’s more comfortable with the local legal arena, betting on the known quantities on the bench. However, I do wonder if it has anything to do with a notable ruling last year in former film financier Ryan Kavanaugh’s case against podcaster Ethan Klein, where a judge allowed a libel suit to proceed despite an anti-SLAPP challenge centered on the application of fair report privilege. The dispute is terribly complicated—see my prior report for details—but long story short: Klein failed in his attempt to invoke the shield because the judge didn’t think what he repeated about Kavanaugh operating a “Ponzi scheme” was particularly fair. (Incidentally, California’s 2nd appellate division will hold a hearing on this matter on Wednesday, delving into republication liability and the almost metaphysical nature of what constitutes a “filing” for privilege purposes.) Maybe Freedman has his eyes on a favorable precedent, or perhaps he likes his odds of setting his own. He’ll surely be arguing that the Times overstepped by coordinating with Lively’s team and taking their word about a filing with the California Civil Rights Department. Either way, the Hollywood attorney might want to tread carefully. A lawyer who so regularly texts reporters might not like how this one turns out.

Thanks, Eriq. Interesting stuff. If you want to send Eriq comments, story ideas, or well-wishes for the Rams in the playoffs, he’s at 646-729-4824. I’ll be back on Thursday. Matt