California Supreme Court rules seller’s promotional statements regarding controversial album are commercial speech not subject to full First Amendment protection

August 19, 2022

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Decided on August 18, 2022

Serova vs. Sony Music EntertainmentS260736

The California Supreme Court yesterday ruled that a seller’s promotional statements about an artistic work of public interest amounted to commercial speech, whether or not the seller was aware of the falsehood of the statements.

Background: Plaintiff sued Sony under the Unfair Competition Act (UCL) and Consumer Legal Remedies Act (CLRA) over the theory that promotional material for a posthumous album by Michael Jackson misrepresented the fact that Jackson was the lead singer. Sony filed a motion to strike under California’s anti-SLAPP law, arguing that plaintiff’s UCL and CLRA claims were unlikely to succeed because those laws only target commercial speech, not non-commercial speech. on art protected by the First Amendment.

The Court of Appeal ruled that the motion should succeed because the plaintiff’s claims were directed to protected speech which was immune from action under the UCL and the CLRA. He felt that the promotional statements about the album were related to a public issue – the controversy over whether Jackson was the album’s lead singer – and were more than mere commercial speech as they related to the music. . Plaintiff’s allegation that the statements were false did not deprive them of First Amendment protection, the Court of Appeals found, because Sony did not know the statements were false.

Problems: Were Sony’s depictions that Michael Jackson was the lead singer of Michael’s non-commercial speech subject to First Amendment protection (in which case California’s anti-SLAPP law would apply) or commercial speech (in which case the plaintiff could pursue the claims of UCL and CLRA against Sony)?

Court attire:

Sony’s depictions on the album constituted commercial speech, which may be prohibited entirely if the speech is false or misleading. And these representations have not lost their commercial character simply because Sony made them without knowing their falsity or on matters difficult to verify.

“[C]Commercial speech does not lose its commercial character simply because a salesperson makes a statement without his knowledge or that is difficult to verify.

Judge Jenkins, writing for the Court

What does that mean :

  1. Although artistic works often benefit from strong First Amendment protections, the marketing of such works can constitute commercial speech regulated by consumer protection laws.
  2. It does not matter whether or not a seller knows that his statements are false, or whether or not he can know whether his statements are false. If the seller’s speech is commercial, it will not enjoy full First Amendment protection in California.
  3. In adjudicating strike claims under the anti-SLAPP law, courts have the discretion to skip over whether a claim arises from the exercise of free speech rights and to analyze first if the mobile has demonstrated a probability of success.

The opinion of the Court is available here.

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