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Battle With the Bands: Rolling Stone's Anti-SLAPP Move Proves to Be a Hit
Media Law Bulletin
In an important application of free speech principles, the California Court of Appeal recently slapped down a class action lawsuit against the publishers of Rolling Stone magazine.
The case of Stewart v. Rolling Stone LLC, 181 Cal. App. 4th 664 (Cal. Ct. App. 2010), was brought on behalf of the members of the indie rock bands "Xiu Xiu" and "F***ed Up"—we will use asterisks just in case this report is read by any non-fans of the "hardcore punk" genre—after they were listed in a Rolling Stone feature article on the "Indie Rock Universe" in the magazine's November 15, 2007 issue. The musicians, claiming to act on behalf of a class of 186 other "independent music performers," sued Rolling Stone and R.J. Reynolds over the use of their names because the article was surrounded by a multipage ad announcing the sponsorship of an independent music website by R.J. Reynolds' Camel cigarettes brand. The musicians were not amused by their tragically unhip (and worse, uncompensated) proximity to a Camel advertising campaign. Their complaint therefore alleged that Rolling Stone had misappropriated their rights of publicity because the placement of the feature wrongly implied they had endorsed Camel cigarettes.
The feature at issue was a four-page foldout known as a "butterfly gatefold." This gatefold consisted of four advertising pages and five editorial pages laid out so that the title page of the feature appeared on a righthand page, with the subtitle "an alternate dimension where everyone wears black Converse." A Camel advertisement appeared on the facing lefthand page. When the page was turned, two more pages of Camel advertising appeared as a "gate." When the "gate" was opened, the two advertising pages ended up on the back of the main part of the editorial content—a four-page-long illustration filled with doodle-like cartoons and groupings of various indie bands into "whimsical" categories. If a reader was looking at the four main pages of the "Indie Rock Universe" illustration, no advertising was visible. Finally, once the gatefold was closed and the page turned, a final full-page Camel advertisement appeared. The Camel advertisements promoted a website that claimed to be "a collaboration between Camel and independent artists," and boasted that Camel was "COMMITTED TO SUPPORTING & PROMOTING INDEPENDENT RECORD LABELS." The Camel advertising pages were designed with a collage of photographic images in a different visual style than the Indie Rock Universe illustration.
Anti-SLAPP Move
Rolling Stone quickly moved to dismiss the wronged rockers' complaint under the California anti-SLAPP statute. Anti-SLAPP statutes have been enacted in a number of jurisdictions in response to legislative concerns that the costs and stresses of litigation were threatening legitimate efforts to petition the government or exercise free speech rights. California's version of the anti-SLAPP statute provides that: "A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim."
The trial court denied the anti-SLAPP motion on the grounds that Rolling Stone had transformed its feature article into less-protected commercial speech by making it "inextricably intertwined" with the surrounding Camel advertising. On appeal, however, the California Court of Appeal issued a detailed opinion reversing the lower court and tossing the musicians out of court.
To fall within the anti-SLAPP statute's protection, Rolling Stone was obligated to prove that its feature article concerns a matter of "public interest." The artists, predictably, refrained from arguing that their mention in the pages of Rolling Stone was not a matter of public interest, but instead argued that the anti-SLAPP statute simply didn't apply because the feature's proximity to the Camel advertising transformed it into unprotected commercial speech. While the California anti-SLAPP statue does contain an exception for speech about the goods or services sold by the defendant (or the defendant's competitors), the Court of Appeal pointed out that Rolling Stone sold magazines, not cigarettes, so the speech at issue did not involve Rolling Stone's good or services, thus making the exception inapplicable.
Having ruled that the rockers' complaint was potentially subject to the anti-SLAPP statute, the Court of Appeal next reviewed whether the plaintiffs could prove they had a reasonable probability of prevailing on the merits of their misappropriation claims. Here, in response to Rolling Stone's claim that there was no proof of "actual malice," the rockers argued that this standard applied only to defamation lawsuits. The Court of Appeal swiftly concluded that the actual malice standard applied to commercial misappropriation claims as well as defamation claims. Relying entirely on their legal argument on this point, the rockers could offer no proof of actual malice in connection with the feature.
The court next considered the claim that the feature was commercial speech because it was "inextricably intertwined" with the surrounding Camel ad. After thumbing through the issue at issue, the court rejected this argument, noting the differing graphic designs in the feature (hand-drawn cartoons) and the Camel advertising (collages of photos), and finding that: "The only nexus between the ad and the Feature is the mutual references to independent music. None of the band names in the Feature appear in the Camel ad, and none of the language or elements of the Camel ad appear in the Feature." The Court of Appeal concluded that "there is no legal precedent for converting noncommercial speech into commercial speech merely based on its proximity to the latter." Accordingly, the court found that the feature was noncommercial speech as a matter of law, meaning that the rockers' failure to offer proof of actual malice required the dismissal of their complaint.
Encore!
For an encore, the Court of Appeal then found that Rolling Stone's conduct was also privileged because its constitutional right to freedom of the press "extended to the content and placement of advertisements." Thus, the rockers' various claims, all predicated on the allegedly wrongful proximity of a feature article about independent music to advertising about independent music, effectively asked the courts to rule on how to arrange Rolling Stone's content. This level of micro-management, the court held, was forbidden under the First Amendment's guarantee of a free press.
Although the anti-SLAPP statute is frequently thought of as protecting the rights of individuals, the decision in this case underscores the statute's utility to a variety of defendants. Moreover, this decision firmly endorsed the rights of commercial speakers, such as Rolling Stone, to have their speech about matters of public interest recognized as noncommercial speech, potentially entitled to the full panoply of First Amendment and anti-SLAPP statute protection. This case (and this article) should not, however, be interpreted to endorse ticking off a hardcore punk band. That's just not wise.
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