Alameda County
Bar Association

Privileges and Protections: Anti-SLAPP Case Analysis 

Celeb Split Supports Anti-SLAPP: Dumped Hubby is a Limited-Purpose Public Figure


Craig L. Schelske, ex-husband of country singer Sara Evans, recently brought a lawsuit against celebrity gossip impresario Harvey Levin and his co-defendants (“TMZ”) alleging that they incorrectly stated that, during the Schelske-Evans marriage, Mr. Schelske maintained on his cell phone “hundreds” of images of himself involved in extramarital sex.

sara_evans_craig_schelske_getty_h_2016In June 2014, on TMZ’s television show and website, the TMZ defendants stated that Miss Evans instituted divorce proceedings against Mr. Schelske after she discovered the photo collection. The mention was background to a feature story on Mr. Schelske’s bankruptcy filing.


TMZ moved to strike the complaint based upon California’s anti-SLAPP statute (Cal.Code of Civ.Pro.425.16). A strategic lawsuit against public participation (SLAPP) is a lawsuit that is intended to censor, intimidate, and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition. California has made these lawsuits illegal on the grounds that they impede freedom of speech and clog up the already overburdened court system. Learn more about California’s Anti-SLAPP laws here.


The Court, in an unpublished decision, found the first prong of the Anti-SLAPP statute applied – Mr. Schelske’s lawsuit flowed from speech in furtherance of a public issue, namely, the celebrity Evans-Schelske divorce. The Court found that, contrary to Mr. Schelske’s assertion that his alleged cheating was purely personal, the public was intensely interested in the divorce. The Court held that Mr. Schelske in fact worked to insert the matter into the continuing public dialogue.

Regarding the second prong of the SLAPP statute, the Court found that Mr. Schelske was unable to establish a probability that he would prevail at trial.  Mr. Schelske, as a limited-purpose public figure, was required (but failed to show) “actual malice” by the TMZ parties in the underlying defamation action. Mr. Schelske tried to point to evidence to show that the TMZ parties either knew the statement was false, or acted in reckless disregard of the truth.


The Court rejected Mr. Schelske’s contention that he was a private, not a public, figure.  The Court found that Mr. Schelke placed himself into the public discourse on his divorce-related issues. He wrote a book about it, met with a producer and a production company, gave an interview on a widely read news portal, spoke for attribution with a divorce-centered website, and appeared on a nationally syndicated television news show. On these bases, the Court held that Mr. Schelske was a “public figure” for purposes of his underlying defamation action.

The Court held that although the TMZ reporter mangled the facts slightly, her reporting was accurate enough to repeat the general idea behind the divorce, as stated in the divorce filing. On this basis, the TMZ parties “could not have [acted] with malice.”


The trial court found Mr. Schelske’s defamation lawsuit against the TMZ parties a SLAPP action, dismissed the case, and awarded fees.  Mr. Schelske has appealed.

Schelske v. TMZ Productions, B262173 (August 2, 2016)  [Unpublished Opinions/”Non-Citable” Opinions are not certified for publication and may not be cited or relied on by other courts or parties in other actions (see, California Rules of Court, Rule 8.1115)]

Lisa Miller is a trial lawyer in California and New York.  She is the Hearing Examiner for the City of Oakland.  She frequently publishes and lectures in the US and EU on free speech concepts.  She can be reached at