Serova v. Sony Music Entm’t, B280526A (D2d2 Jan. 8, 2020)
This is an anti-SLAPP case that I wrote about when the original opinion came out in 2018. The key question is whether Sony’s claims that Michael Jackson is the singer on three vocal tracks on an album issued after his demise are “in connection with a public issue.” If so, the claims are properly subject to a motion to strike under Code of Civil Procedure § 425.16(e)(3) or (4). The Court of Appeal held they were, but then the case got granted and held pending the Supreme Court’s decision in FilmOn, which definitively interpreted the public interest requirement.
Now on remand, the Court of Appeal says it would reach the same result, even in light of FilmOn. It is true that in the FilmOn analysis, a commercial context can weigh against speech being addressed to an issue a public interest. But it’s not necessarily dispositive. Here, the speech at issue addressed whether Michael Jackson was really the singer of those songs. Given Michael Jackson’s prominence as an artist, discussions about whether his final work was really his work are address an issue of public interest, even if they are made in connection with selling the album. This seems reasonable.
But the Court goes on, in an analysis that’s basically identical to the prior appeal, to find that Plaintiff can’t prevail on the merits because the statements are non-commercial speech that is absolutely protected by the First Amendment. As I said in my prior post, I’m a bit skeptical on this point. But we’re already only a hairs breadth from giving First Amendment protection to stone cold bribery, and it seems like fraud is just next in the hopper.
Reversed.
In any event, I implore you, again, to listen to this.
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