- Step Two – Probability of Prevailing on the Merits
Even if the court accepts that West’s statements fall under the protection of CCP § 425.16, Swift’s team would then need to show a “probability” of prevailing on a defamation claim under Civil Code §§44, 45, and 46.
The defamation elements are:
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- A false and unprivileged statement of fact,
- Publication to a third party,
- Fault (negligence or actual malice),
- And reputational harm.
As a public figure, Swift must prove actual malice—that West knew the statements were false or recklessly disregarded the truth (New York Times Co. v. Sullivan, 376 U.S. 254 [1964]).
Given the specificity and lack of evidence supporting West’s claims, along with his past history of public antagonism toward Swift, a strong argument can be made for malice.
Under Khawar v. Globe Int’l, Inc. (1998) 19 Cal.4th 254, the California Supreme Court upheld a defamation verdict against a tabloid for outrageous, false accusations, reinforcing that celebrity speech isn’t immune.
