Victoria Burke Reacts to Judge Liman's Final Ruling

[00:00:00]We welcome back Victoria Burke right now, the author of the legislation that became California Civil Code 47.1. Her intention was to protect survivors of sexual assault, harassment, and discrimination from retaliatory lawsuits after they spoke about their experiences. She was concerned that survivors were being silenced by the threat of expensive libel litigation.

[00:00:23]Uh Victoria, so good to see you again. Um hello there.

[00:00:29]>> Billy.

[00:00:29]>> Good to see you. So, Judge Lyman >> Yeah, you're back. But, you know, we we got to we got to speak about, you know, what this means and where it goes. The judge ruled that Blake is entitled to reclaim fees directly related to her defense against Justin's, you know, big uh defamation suit that he that he, you know, sort of his his countersuit, ultimately tossed by Judge Lyman and left unappealed by Justin. But, what is your reaction uh to the ruling?

[00:00:59]>> I was surprised. I thought he would need to have, you know, um go to trial to see if malice actually existed or not. So, I was surprised that he handled it almost like it was a pretrial motion, like it was an anti-slap claim of a defense of anti-slap, which is handled in a pretrial motion because when we put the law in California, we put it in defamation section, which is a trial motion section. So, usually there has to be, you um hear what the facts are, witnesses, you know, different different evidence presented more than just what you put in the pleadings.

[00:01:37]In pretrial motion, you have >> he assumed that there's no malice. He said there's no malice here, but he decided that on his own. That she he he said he gave her by saying this came from a good place uh from her you know, in her uh believed that maybe that that she believed that these were real experiences. And uh and so they didn't go any further. Do you feel like the judge just wanted out of this whole thing? And was that vindication for Blake beyond what she's going to you know, claim as um you know, money back is as some kind of win?

[00:02:10]>> Well, I thought it was very surprising because how do you have it like attorney fees but not actual damages? So, if you are saying there's no malice, when they go together, so it's kind of like he wanted to a little bit for you and a little bit for you and like maybe he's confused about how the law was and he just like okay, I'm going to see if I can split the baby here and figure out something because I would have presumed you need to hear the facts to see if there is malice there to at least have a more presentation because if it was an anti-slap, that's different. Anti-slap literally dismisses it based on like a face of pre-trial. And so, you have to put it all in and everything that you're like putting forth pre-trial. Whereas, if you had thought of it as going to to like actual trial and be heard as a defense, you might have put more in ahead of time.

[00:02:56]You might have presented it differently.

[00:02:57]Like Baldoni's attorneys might have presented it differently if they knew it wasn't going to be heard on the facts.

[00:03:02]>> Right. I mean, look, if Blake Lively in in my opinion, if she was you know, deeply outraged and and stood behind all of her claims, she would have said, "We're absolutely going to trial. Uh-uh.

[00:03:12]Let's do this." She is the one her legal team initiated, you know, settlement hearings in the final hour right before court. I think she played chicken, you know, you know, all the way up till the end and then they and then she pushed friend rather frantically. I remember it was a Friday afternoon, you know, phone call from her lawyers going, "We got to settle. We got to settle." And you know, Friedman and his team were like, "Okay.

[00:03:35]Here we go." You don't do that, you know, if you if you firmly believe and especially with allegations as serious as these and and ones with that have you know, great tentacles to them. They affect other people in the future. Do you think Judge Lyman's splitting of the baby here was basically like, >> [sighs] >> I don't want to listen to this anymore.

[00:04:00]I'm I'm I'm I'm going to say, fine, you did this, you know, without malice, and and therefore, you know, you'll be able to to recoup these fees, but really it's for, you know, the sanctity of of the law, so that other people in in the future, because it's one of the first testings of this the first major testing of your piece of litigation, that this is for, you know, future people, so it doesn't the whole thing doesn't get ruined. Do you see any positive thing in that?

[00:04:32]>> I can see the positive is that you he believed in a {quote} survivor coming forward, and you know, if you cannot show whatever he was looking at, if he didn't see a demonstration of malice, then he felt according to the law, if there's no malice and it was based on good faith. Like that would be, let's say, she came forward with good faith, and she literally thought what she was saying was sexual harassment, but like he found it didn't add up to that, but she was confused. She thought this stuff was like, I don't like it, what's going on, that's sexual harassment, but like she came from a good place. That would have to be the judge's thought process on that, and that he couldn't see any laid out claims of like malice, of like she had other motivations behind it. So, if he saw it like that, I could understand his thinking, but it doesn't go with no actual like damages then, because one would go with the other. So, it's kind of like, well, wait, if you thought this, then shouldn't that also go with the same, cuz they kind of go hand in hand. So, I I was a little bit confused how that came down, but I feel that maybe he wanted to protect the integrity of what he felt the bill was about, without having to go through a whole like separate trial to hear it. But, just because it was put in in the defamation section, I would have thought we would have gone through a little bit of a motion trial to hear the facts to before deciding it.

[00:05:54]>> Yeah, I mean as the as the author of that bill, um would do you think it's you know, would you say are you mostly pleased, mostly disappointed, or are you splitting the baby like it's a little of this and a little of that. Where are you personally as the you know, woman who you know, I'll remind people and you say it so I'm not I'm not ahead of you, but actual sexual assault survivor who took her experiences, deeply painful experiences, and wrote legislation and made change and you know, in in in California and in other states now. Uh you know, so deeply personal for you.

[00:06:33]Are you mixed?

[00:06:35]>> I would have preferred that it went to to the stage where it was actually heard with the facts cuz I'm all about fairness.

[00:06:42]So, if there is like a actual showing of malice, then let's see it.

[00:06:47]Let's go through and let's take it to that next stage as well cuz I'm all about equity. About you know, see cuz if it like I said, if it was anti-SLAPP, it's like you would have presented it differently. You would put more evidence and more statements and more like uh stuff you want to present earlier on. If you thought you were just going to go to a trial motion, you would put less in there and maybe hold back until you're at trial and presenting.

[00:07:10]So, it was interesting how it went forward on that issue. I mean, I say some some states have actually chosen to put it in their anti-SLAPP section and what's interesting is the anti-SLAPP section protects like when someone's you know, claiming like defamation about something that's a first amendment speech. And like a lot of people say, well, shouldn't that be protected under public interest cuz anti-SLAPP protects on issues of public interest, but we have found there's been recent cases even in like New York where a judge has found, you know, sexual assault, sexual harassment to be a private matter.

[00:07:46]It goes back to the old-time thinking of like domestic violence that was within the home, marital rape was within the home. It wasn't like within the public interest. And so, our intention is to correct these little deficiencies that protect other people speaking out um about different issues having to do with First Amendment, but somehow leaves survivors out of this protection. So, we've been trying to protect along the way the different survivors, you being able to come forward and, you know, so long as it's not malicious.

[00:08:16]>> Right.

[00:08:17]So, it sounds like, I mean, if you wanted it to be heard, you wanted to know more I it sounds like, I mean, I think we >> Cuz I feel he would have his lawyers might have handled it differently if he knew his pretrial. They might have like how they presented their like showing of malice may have been different.

[00:08:34]If it was like a to be There's There's a lot of things >> you're suspecting malice?

[00:08:39]>> Well, >> It's hard to say that because you are for the legislation, but you're also a very savvy person and I >> I I would I would have been more comfortable had it had gone to be heard in front of like a jury and make that decision, that ruling, instead of just looking at the filings on their face.

[00:08:58]>> When you >> I think it's a very heavy.

[00:09:01]>> I I know what you're saying. When you first heard that Blake was going to road test, you know, your bill, you had to have been more than intrigued, perhaps a bit excited and, you know, who wouldn't be. Uh When did that uh turn?

[00:09:18]>> It initially I was because I had not been I had heard about the case, but I had not been following. So, I'm like, oh, this is interesting because my first thought, well, this will bring attention to the bill and people will know that these protections exist. And so, when it was like settled and it was like kind of dismissed, you for lack of being able to establish sexual harassment claims. And I'm like, "Oh, okay." And then it was settled like, "Yay, settled, gone." because the sexual harassment gone away. So, I I was kind of thrilled when the settlement came about like, "Okay, this is gone." I didn't know that 47.1 would still be invoked at that stage. Right. So, I was like, "Uh-oh."

[00:09:55]>> Now, it's only 7. She's got her whole whole machine riding on everything in her stable is now riding on 47.1.

[00:10:05]Um and I I wonder >> What?

[00:10:08]>> is this is where we we're going collide because I'm moving the bill forward nationally.

[00:10:12]And you know, I kind of would like it not to be associated with her necessarily in the spotlight because it was a dismissed sexual harassment claim.

[00:10:21]So, if I had my preference, it would be maybe some other survivors I've come across would be the ones to perhaps be the ones to go forward with the bill and highlight it and their stories. Let's put them forward.

[00:10:33]>> Blake Lively has always said, you know, I'm standing up for my fellow survivors.

[00:10:38]She didn't She always put little language in there that was like uh survivors of sexual assault and all survivors. I remember that in the statement, you know, after the settlement uh when she was trying to save face.

[00:10:50]And of course, the end all survivors was a nod to herself. Uh but you, the author of the bill going forward on a national front, will not be picking up the phone and and asking for Blake's participation. In fact, will you have to you do you imagine a situation where you'll have to explain around her, explain around this?

[00:11:11]>> Potentially. Potentially, yes. I do see having to clarify around this. Yes, exactly. I mean, you have to realize I was going for the bill Right. I was >> Has she ever called you? Has she ever spoken to you, especially since since all of her marbles and all of her chips ended up on 47.1, your legislation coming from your personal experience, did has she still at this point since Friday or any at any point called you, spoken to you, have you had any words with her?

[00:11:41]>> No, I I believe it was either Did she know who you are?

[00:11:45]Well, the day before, I know that um like her attorney had uh texted.

[00:11:51]>> Texted you?

[00:11:52]>> Yes, so I was like and I did not reply at that time.

[00:11:55]>> [laughter] >> I have never replied.

[00:11:56]>> New phone, who dis?

[00:12:00]>> No No, there has not been any >> text you? Like, "Hey, what's up? Can we talk? Can we catch up?" Or "How are you?" Or >> It was something "Can we meet and talk?"

[00:12:10]And I >> Was it God lead? Was it uh who was it?

[00:12:15]Uh >> Ezra.

[00:12:16]>> Ezra.

[00:12:18]>> Yeah, I I declined. I did not reply actually. I've been quite busy. I have haven't had time to return.

[00:12:24]>> And what how give me give me a sense of Ezra's uh stick-to-itiveness. Did he follow up again with the second text or let it go?

[00:12:31]>> No, let it go.

[00:12:32]>> In case he was just checking a box.

[00:12:34]>> just after the first day I think I had spoken to Megan Kelly then my phone just lit up, so >> I I I yeah, I I just yeah. I I'd like to end up uh sitting at a bar next to Ezra and Mike, you know, in their postmortem after a few drinks and they get loose lips and to hear exactly what they're thinking cuz the fact that he didn't follow up on a second text is it it is is interesting. So, um Yeah, I mean >> Going forward it's going to be interesting how, you know, but I will just continue on saying that I preferred that all the facts have been heard in front of a jury because this bill was in the defamation section and I feel like you would have, you know, pleaded differently if it was in the anti-slap section. So, going forward, I will clarify that and how like I wish it would be a little bit different when you're presenting the facts and how it's heard.

[00:13:28]And I'll put some distance there.

[00:13:30]>> Yeah. You know, I my I think about the law that you, you know, that you wrote. And as like as the Was this law um designed for Blake or someone like her as the aggrieved party? No. Is the specific power dynamic in each situation missing from the bill? Not that you should have included it or didn't, but the power dynamic involved here with Blake and Baldoni, most often you have a underling of some kind in a in a work type situation where the big boss is, you know, hitting on them or whatever. Blake Lively by all means had the upper hand on this set. She was the more powerful, the more influential. She was an executive producer as well as the star of the film. She even wrote about how I, you know, I deserve a producer's credit because I I did craft services, I did wardrobe, I had to fix every scene, I had to do rewrites cuz this guy was so incompetent. She was the 800-lb gorilla on the set.

[00:14:39]And then she turns around and says my director put me in in this type of situation. Does the How does the power dynamic play in this?

[00:14:47]>> I can tell you, Billy, when I started out, the people I had in mind for the bill were the survivors who at the time, there's been so many where they've come forward and they don't have the funds and it's usually someone who has a huge power imbalance where someone is much more powerful than someone who, you know, is just coming forward and and has been used a lot of times, these defamation lawsuits have been weaponized to silence people knowing that, you know, they don't have the money to defend themselves and they're kind of stuck. And the intention was to incentivize attorneys to take on these tough cases knowing that they could recover attorney fees and the actual damages, you would think about let's say oh a single mom having to hire maybe a babysitter. You know, someone who had to take off work and they're paid per day and they lose all these hours going to deposition after deposition. And you know, what can they recover? That That was in my mind those survivors and these are the ones I've come across where they're being like financially wrecked.

[00:15:44]It's hurting, you know, how they like function in life and you know, they're losing so much money and sleep over this. That Those were the survivors that were in my mind.

[00:15:55]>> No kidding.

[00:15:57]Of course.

[00:15:57]>> Especially since he's like a lot of times the defendant are five, six, and seven figures to defend. So it was kind of scary when I've seen, you know, it's so much cheaper to be silent.

[00:16:08]And that's was my concern. Let's Let's put some protections in there so it kind of evens out the playing field so that, you know, if you're just bullying and you don't actually have any real malice to show, then you're, you know, you're going to have to be like, "Okay, if you just did this frivolously, just to like a to work the judicial system, then you'll have to pay the attorney fees and damages." And that was the intention is to if you don't have any anything to show and you're just doing this to bully, maybe you'll think twice.

[00:16:35]>> Well, I admit Look, you're you're you're exactly right. Um I think the last thing when you drafted this legislation and you worked so hard on it uh that you expected was that you would face the challenge of toxic femininity would come would come your way and I'm saying it not you, but uh you know, I mean, that's like the last thing you expected to be, you know, your first obstacle. But, you know, by speaking out here, um I think um >> Well, we all heard the promise that so much was going to come out in court.

[00:17:09]>> Yeah, we all heard the promise.

[00:17:11]>> we all heard this and you know, I was standing back to see the facts will play out.

[00:17:15]The judge will like make a decision, but then when it was like dismissed and there wasn't anything holding up the sexual harassment, she was like, "Okay, I'm going to take a step back here.

[00:17:24]Like, I'm concerned."

[00:17:26]Grateful when it was gone.

[00:17:28]>> [laughter] >> I was saying like, "It's done."

[00:17:31]Off the radar, you know? So, that was something I was like, "Oh." But then when it came back again, I'm like, "Wait, what's happening?" Oh, it was it was not expected.

[00:17:41]>> Shh. Yeah, she is Joan of Arc. Uh you know, it's just marching into battle, leading an army of survivors behind her, and then she notices, "Oh god, there's actually a cliff here." She jumps off the horse, the horse goes over, and uh you know, off she goes. Um this this But you I'm going to say something. You you what you have done to uh speaking out here uh with us and um I think people very well know what's going on here.

[00:18:08]And >> I I appreciate you highlighting this bill, too. I really do because the intention behind it was to protect the most vulnerable population.

[00:18:15]>> I'm the father of three girls. If something like that happened to one of them and they didn't have the courage or the backing or you know, um you know, and it didn't have this type of protection, uh well, you can sure bet that I would I would do it.

[00:18:29]I'd back But there aren't people that that are not able to do that. You And speaking out now, I think you uh I think everybody supports the bill. They know, you know, what's behind it, and they know who tried to hijack it. And by bailing out when she bailed out, you know, that's on her, not you.

[00:18:49]Thank you so much.

[00:18:51]>> Wish me luck as I keep moving it forward, Billy.

[00:18:52]>> Yeah, what's the next step for you?

[00:18:55]>> Um well, right now we had it introduced in um 14 or 15 states this year, and I've I have a few that might go across the finish line this year, and then next year try again cuz some take several years. So, hopefully we'll gain a few more states before the year's end.

[00:19:08]>> Well, you know what? Where Blake is bailing out on this, um we'll continue with you because the bill so like we you just let's you and I have each other's contact information. Let's stay up-to-date and and let's see. Okay, Blake, now that you're out, let's see where this legislation goes and and the people that it is affecting, the people that need it.

[00:19:28]>> The best case scenario is that now survivors know this is a protection that's there. That's the best I could say.

[00:19:33]>> Yeah.

[00:19:33]Well, thank you very much, Victoria Burke. She's the author of 471 and we'll stay in touch. Appreciate it so much.

[00:19:41]>> Blake.