Court Should Reject Effort to Narrow Scope of Anti-SLAPP Protection in Commercial Speech Context

Vera Serova v. Sony Music Entertainment, No. S26073

Update Aug. 18, 2022: The California Supreme Court reversed the lower court, holding that the marketers of the album at issue were not entitled to anti-SLAPP protection. In a unanimous opinion, the justices said, “We recognize artistic works such as albums, in some instances, enjoy robust First Amendment protections, but that does not turn all marketing of such works into noncommercial speech, and it does not do so in this case.” The justices noted the parties had already agreed to settle the case, but they opted to decide the matter due to the importance of the issues. Read coverage in the San Francisco Chronicle.

Read the First Amendment Coalition’s amicus curiae brief

About the case: The California Supreme Court is being asked to weigh in on the scope of the state’s anti-SLAPP protections for commercial speech. The appeal arises out of a controversy over whether Michael Jackson actually sang certain songs on a posthumously released album. Fans accused Sony Music Entertainment of misleading consumers about Jackson’s role on certain tracks, citing, among other things, a statement on the album cover. “But content-based claims like the one in this case that target statements in advertisements about the content of expressive works of art, entertainment, or journalism raise unique First Amendment concerns,” FAC’s lawyers wrote in the brief, “and they are subject to the same First Amendment demands and limitations as claims based on the underlying expressive content.”

Our position: Affirm the Second District Court of Appeal

From the brief: “The appeal presents the Court with an opportunity to reinforce well-established anti-SLAPP and commercial speech principles in a clear and helpful manner” and reject positions asserted by amici aligned with the plaintiffs that “will do harm to the kind of expressive speech the anti-SLAPP Statute was adopted to protect.” 

FAC is represented by Thomas R. Burke, Rochelle L. Wilcox and Dan Laidman of Davis Wright Tremaine.

Date filed: March 10, 2021