Recent Developments in Anti-SLAPP Cases for Determining Protected Activities

This article focuses on those decisions that concern whether a defendant's conduct arises from protected activity, particularly in the entertainment context and media. As the statute makes clear, protected acts are not restricted to speech but include conduct as well. The California Court of Appeal made it equally clear in Lieberman v. KCOP Television Inc., 110 Cal. App. 4th 156, 166 (2003), that “conduct is not limited to the exercise of [defendant's] right of free speech, but to all conduct in furtherance of the exercise of the right of free speech in connection with a public issue.” In Lieberman, the court held that the gathering of information for a television news broadcast fell under the protection of the anti-SLAPP statute. The court reached the same conclusion in Hall v. Time Warner, 153 Cal. App. 4th 1337, 1346-47 (2007), holding that the conduct of a reporter who entered a private room at a nursing home to interview Marlon Brando's former housekeeper, and who videotaped the interview for the television program Celebrity Justice, had engaged in “conduct in furtherance of [Time Warner's] right of free speech 'in connection with a public issue or an issue of public interest.'”

In keeping with Lieberman and Hall, the California Court of Appeal held last year in Dieu v. McGraw, B223117 (Cal. App. 2011), that conduct in preparation for the broadcast of an episode of Dr. Phil fell within the ambit of the anti-SLAPP statute. In Dieu, the plaintiffs claimed that in connection with their stay in “The Dr. Phil House,” a sort of live-in group therapy session featured in special episodes of Dr. Phil, they were lied to about Dr. Phil's qualifications, were confronted by a naked man in the house and were not permitted to leave, among other things. The court of appeal concluded that all of this conduct was in aid of, or in furtherance of, the episode, and was thus protected conduct.

Two months later, the court of appeal held in Tamkin v. CBS Broadcasting Inc., 193 Cal. App. 4th 133 (2011), that there was sufficient public interest in the writing, casting and broadcasting of the television program CSI that this conduct fell within the scope of anti-SLAPP protection. Scott and Melinda Tamkin sued CBS for defamation and false light invasion of privacy after an episode of CSI aired that included characters that the Tamkins claimed were them, but which were depicted as engaged in a lifestyle of “sexual bondage, pornography, drunkenness, marital discord,” etc. The last name of the characters in the program was “Tucker,” but the name “Tamkin” had been used to identify the characters in early drafts of the script and in casting synopses that were ultimately leaked to various websites.

In making its determination that the production of CSI satisfied the first prong of the anti-SLAPP analysis, the court of appeal expressly distinguished the 2007 decision in Dyer v. Childress, 147 Cal. App. 4th 1273 (2007), which had held that a lack of “discernable public interest” in the fictional character Troy Dyer in the film Reality Bites took the work out from under anti-SLAPP protection. The court made it clear in Tamkin that the relevant inquiry is whether the conduct at issue furthered the defendant(s) exercise of free speech rights regarding a matter of public interest, not whether the plaintiffs personae (i.e., the Tamkins themselves) were a matter of public interest. The fact that Tamkin concerned the production and broadcast of a fictional television program did not change the outcome of this analysis. If there was any question that Dyer v. Childress limited the ability to seek anti-SLAPP protection for the production and distribution of an entertainment work, as opposed to news and documentary works, Tamkin put that issue to rest.

Indeed, a month before it issued the opinion in Tamkin, the California Court of Appeal issued an unpublished opinion in Cammarata v. Bright Imperial Limited, B218226, (Cal. App. 2011), which echoed the sentiments expressed in Tamkin. In Cammarata, the former proprietor of several subscription-based adult entertainment websites sued the owner of an adult website called “Redtube,” a so-called “tube-based” website that did not charge its visitors a fee but instead earned its revenues through advertising. The plaintiff, Kevin Cammarata, alleged that Redtube was selling goods below cost to injure Cammarata's business, using unlawful loss leaders and otherwise engaging in unfair business practices under California Business and Professions Code '17200.

Redtube's proprietor filed an anti-SLAPP motion, which the trial court granted in part and denied in part, leaving Cammarata's unfair business practices claim intact. Neither party disputed on appeal that Redtube's content was protected speech, nor that it was speech on a matter of substantial public interest. Instead, Cammarata argued (akin to the plaintiffs in Tamkin) that Redtube's business practices were not protectable under the anti-SLAPP statute because they would be actionable in any context, media or non-media. The California Court of Appeal disagreed. In reversing the trial court's decision, the court reaffirmed the notion that context was, indeed, everything. In particular, the court held that: 1) the publication of video on the Internet (the dissemination of speech) is conduct protected by the anti-SLAPP statute; and 2) the predatory pricing allegations were aimed directly at that conduct.

Nonetheless, not all courts have been so expansive in their protection of the dissemination of media over the Internet. For example, earlier this year in Greater LA Agency on Deafness v. Cable News Network Inc., 11-03458 (N.D.Calif. 2012), the U.S. District Court for the Northern District of California declined to extend anti-SLAPP protection to CNN's decision not to provide closed captioning for videos posted on CNN.com. The district court recognized that it was facing the prospect of “a rule without limits” given the expansive interpretations applied to the anti-SLAPP statute with regard to the production of media works. In this instance, the district court concluded that CNN's decision regarding the use of closed captioning was not properly construed as “in furtherance of its broadcast activities.” The court held that requiring CNN to adopt closed captioning would not: a) impinge on CNN's broadcast or expressive content; b) interfere with its editorial discretion; or c) subject CNN to an unfair increase in costs, resulting in fewer videos being posted.

The outcomes have been the same in the movie context as they have for television production and distribution. In Towers v. David La Chappelle Studio Inc., B217526 (Cal. App. 2010), the California Court of Appeal held that the documentary Rize, based on a dance competition held at the Great Western Forum, was an issue of public interest. The competition was held at a public venue before a paying audience and the award-winning documentary based on the competition was distributed theatrically. The U.S. District Court for the Western District of Washington reached the same conclusion in Aronson v. Dog Eat Dog Films Inc., 738 F. Supp. 2d 1104 (W.D.Wash. 2010), a lawsuit regarding the documentary Sicko by Michael Moore. The district court held that: a) “[i]t is beyond dispute that documentary movies involve free speech”; and b) it was not necessary that the plaintiff (who appeared in the film for 16 seconds) be a public figure, so long as there was a direct connection between the plaintiff's appearance and a topic of widespread public interest.

Again, the opinions in Towers and Aronson may have seemed easy to reach given that they concerned documentaries as opposed to pure entertainment works. However, there were two additional opinions reached last year which, in keeping with Tamkin, above, continued to afford anti-SLAPP protection to hybrid and/or pure entertainment works. In the first, Olson v. Cohen, B221956 (Cal. App. Sep. 12, 2011), the Court of Appeal held that claims arising out of Sacha Baron Cohen's conduct during the making of the documentary-style film Bruno were subject to anti-SLAPP protection since it was intended to elicit strong homophobic reactions from those around him “for the purpose of entertainment and social satire.” In doing so, the court quoted from the U.S. Supreme Court opinion in Joseph Burstyn Inc. v. Wilson, 343 U.S. 495, 501 (1952), emphasizing that “'[t]he importance of motion pictures as an organ of public opinion is not lessened by the fact that they are designed to entertain as well as to inform.'”

The Supreme Court's opinion in Burstyn found its way into another decision last year, Sarver v. The Hurt Locker LLC, 2:10-cv-09034 (C.D.Calif. 2011), an action brought by Jeffrey Sarver alleging that the film The Hurt Locker was based on his real-life experiences. The district court, in concluding that the defendants had satisfied the first prong of the anti-SLAPP analysis, quoted Burstyn for the proposition that movies are both a “'significant medium for the communication of ideas'” and are a form of expression protected by the rights of free speech and free press guaranteed by the First and Fourteenth Amendments.

The opinions in the film, television and Internet contexts have been accompanied by a host of others in a myriad of contexts, including radio, magazine, book and video-game publishing. For example, in Nguyen v. KSJX-AM 1500, H032686 (Cal. App. 2009), the court of appeal concluded that statements made on public radio regarding a dispute between two prominent members of the Vietnamese-American community in Northern California were sufficiently connected to an issue of public interest to satisfy the first prong of the anti-SLAPP analysis. The court reached the same conclusion in Lufti v. Spears, B218211 (Cal. App. 2010), regarding statements made about Britney Spears ex-manager, Sam Lufti, in a memoir written by Spears' mother, Lynne Spears.

Of greater interest is the decision in No Doubt v. Activision Publishing Inc., 192 Cal. App. 4th 1018 (2011), an action brought against Activision by the rock band No Doubt in connection with the use of the band's music, and images of the band members, in the video game Band Hero. No Doubt had executed a character license agreement for the use, but alleged that Activision had exceeded its scope by allowing players to change the band members' voices, to have them play without the rest of the band or in other bands, and to play songs by other bands. No Doubt sued Activision for fraud, violation of the right of publicity, breach of contract, and unfair competition, among other things. Activision filed an anti-SLAPP motion as to the latter two claims, which was denied by the trial court.

There appears to have been little dispute on appeal that videogames are expressive works subject to First Amendment protection and that the use of No Doubt in Band Hero was an issue of public interest given the band's popularity. However, No Doubt argued that the dispute between the parties arose out of a contract (the character license agreement), not Activision's exercise of its free speech rights. The court of appeal disagreed, noting that this was neither a bar to anti-SLAPP protection generally, nor a bar to its application to Activision's motion. The court then concluded that Activision had met its initial burden on the motion.

In doing so, the court appeared responsive, in part, to Activision's argument that it had a First Amendment right to exploit the likenesses of No Doubt's members with or without a license agreement. Nonetheless, after engaging in the second prong of the anti-SLAPP analysis, the court concluded that Activision did not have a First Amendment right to do so. The issue was perhaps more properly put by Justices Suzukawa and Epstein in their concurring opinion, which is that that Activision's claims arose from “First Amendment-protected activity,” meaning the production and distribution of video games, not the violation of No Doubt's right of publicity. Regardless, the opinion reaffirms the availability of an anti-SLAPP motion (although Activision's motion was ultimately denied), even where the plaintiff has sued under a contract theory, so long as a claim can fairly be described as arising out of the production of expressive content.

The last decision worth discussion in this context is Stewart v. Rolling Stone LLC, 181 Cal. App. 4th 664 (2010), filed by the members of independent rock bands who were touted in a special pullout section of Rolling Stone. The problem was that the special section included two full-page ads for Camel cigarettes, illustrated in the same style as the rest of the supplement. The bands sued under both statutory and common law privacy theories, specifically, the unauthorized use of their names for commercial advantage. Rolling Stone filed a motion to strike, which was denied by the trial court on the grounds that the supplement was effectively a “9-page advertisement for Camel cigarettes” and was thus commercial speech unprotected by the anti-SLAPP statute.

The California Court of Appeal reversed. Of note, the court held that there is no authority for the proposition that the anti-SLAPP statute contains a categorical exception for commercial speech. Instead, it does not apply to defendants “primarily engaged in the business of selling or leasing goods or services” and where the statement or conduct at issue “consists of representations of fact about the person's or a business competitor's business operations,” among other things. Cal. Civ. Proc. Code '425.17(c). Because the “goods” that Rolling Stone sells are magazines and the statements at issue did not concern Rolling Stone or its competitors, the limited exception did not apply. Equally as important, because the speech and conduct at issue arose out of the design and publication of an editorial supplement to Rolling Stone concerning a popular music genre, the court of appeal held that the defendants clearly qualified for anti-SLAPP protection.

Conclusion

It has been a banner couple of years for media and entertainment defendants in the anti-SLAPP context, both because courts have increasingly recognized that the first prong of the anti-SLAPP analysis extends to the production and distribution of entertainment works, and because courts have continued to afford anti-SLAPP protection to works in a wide variety of media. If the trend at the trial court level properly responds to the decisions of the court of appeal, fewer determinations on anti-SLAPP motions in the media and entertainment context will turn on the question of whether the conduct relevant to the complaint concerns an issue of public interest and instead will focus on the question of whether the plaintiff can make out a viable prima facie case.

In the last three years, there have been a number of decisions issued by California courts on anti-SLAPP motions filed in response to lawsuits arising out of the publication and/or distribution of entertainment works. Indeed, since July 2009 alone there have been decisions in lawsuits regarding works in virtually every medium, including television, film, radio, magazines, books, video games and Internet sites. In each one of these cases, the court was tasked with deciding whether the statements or conduct at issue in the lawsuit arose out of activity protected by California's anti-Strategic Lawsuits Against Public Participation (anti-SLAPP statute). In light of the burgeoning number of states that have adopted anti-SLAPP statutes since Washington state enacted the first modern anti-SLAPP statute in 1989, it is important to review the recent developments in this area.

The basics of anti-SLAPP procedure are well-known to most entertainment and media practitioners at this point. In California, a defendant carries the initial burden to prove that its conduct is covered by the anti-SLAPP statute by showing that the plaintiff's claim arises from “any act of [defendant] in furtherance of [its] right of petition or free speech under the United States or California Constitution in connection with a public issue.” Cal. Civ. Proc. Code '425.16(b)(1). If so, the burden shifts to the plaintiff to establish a probability that the plaintiff will prevail on his or her claims. Id. In order to do so, “the plaintiff must show that the complaint is legally sufficient and must present a prima facie showing of facts that, if believed by the trier of fact, would support a judgment in the plaintiff's favor.” Hall v. Time Warner, Inc. , 153 Cal. App. 4th 1337, 1346 (2007) (emphasis added). If the plaintiff meets this burden, “the moving defendant can defeat the plaintiff's evidentiary showing only if the defendant's evidence establishes as a matter of law that the plaintiff cannot prevail.” Id.

Section 425.16(e) of the California Code of Civil Procedure identifies the conduct that may satisfy the defendant's burden, including the following:

(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; (4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.

In order for the defendant to prevail on an anti-SLAPP motion, the claim at issue must satisfy both prongs of the analysis. The claim must arise from protected activity and be one as to which plaintiff cannot make out a prima facie case for liability or as to which the plaintiff cannot prevail as a matter of law.

This article focuses on those decisions that concern whether a defendant's conduct arises from protected activity, particularly in the entertainment context and media. As the statute makes clear, protected acts are not restricted to speech but include conduct as well. The California Court of Appeal made it equally clear in Lieberman v. KCOP Television Inc. , 110 Cal. App. 4th 156, 166 (2003), that “conduct is not limited to the exercise of [defendant's] right of free speech, but to all conduct in furtherance of the exercise of the right of free speech in connection with a public issue.” In Lieberman , the court held that the gathering of information for a television news broadcast fell under the protection of the anti-SLAPP statute. The court reached the same conclusion in Hall v. Time Warner , 153 Cal. App. 4th 1337, 1346-47 (2007), holding that the conduct of a reporter who entered a private room at a nursing home to interview Marlon Brando's former housekeeper, and who videotaped the interview for the television program Celebrity Justice , had engaged in “conduct in furtherance of [Time Warner's] right of free speech 'in connection with a public issue or an issue of public interest.'”

In keeping with Lieberman and Hall, the California Court of Appeal held last year in Dieu v. McGraw, B223117 (Cal. App. 2011), that conduct in preparation for the broadcast of an episode of Dr. Phil fell within the ambit of the anti-SLAPP statute. In Dieu, the plaintiffs claimed that in connection with their stay in “The Dr. Phil House,” a sort of live-in group therapy session featured in special episodes of Dr. Phil, they were lied to about Dr. Phil's qualifications, were confronted by a naked man in the house and were not permitted to leave, among other things. The court of appeal concluded that all of this conduct was in aid of, or in furtherance of, the episode, and was thus protected conduct.

Two months later, the court of appeal held in Tamkin v. CBS Broadcasting Inc. , 193 Cal. App. 4th 133 (2011), that there was sufficient public interest in the writing, casting and broadcasting of the television program CSI that this conduct fell within the scope of anti-SLAPP protection. Scott and Melinda Tamkin sued CBS for defamation and false light invasion of privacy after an episode of CSI aired that included characters that the Tamkins claimed were them, but which were depicted as engaged in a lifestyle of “sexual bondage, pornography, drunkenness, marital discord,” etc. The last name of the characters in the program was “Tucker,” but the name “Tamkin” had been used to identify the characters in early drafts of the script and in casting synopses that were ultimately leaked to various websites.

In making its determination that the production of CSI satisfied the first prong of the anti-SLAPP analysis, the court of appeal expressly distinguished the 2007 decision in Dyer v. Childress , 147 Cal. App. 4th 1273 (2007), which had held that a lack of “discernable public interest” in the fictional character Troy Dyer in the film Reality Bites took the work out from under anti-SLAPP protection. The court made it clear in Tamkin that the relevant inquiry is whether the conduct at issue furthered the defendant(s) exercise of free speech rights regarding a matter of public interest, not whether the plaintiffs personae (i.e., the Tamkins themselves) were a matter of public interest. The fact that Tamkin concerned the production and broadcast of a fictional television program did not change the outcome of this analysis. If there was any question that Dyer v. Childress limited the ability to seek anti-SLAPP protection for the production and distribution of an entertainment work, as opposed to news and documentary works, Tamkin put that issue to rest.

Indeed, a month before it issued the opinion in Tamkin, the California Court of Appeal issued an unpublished opinion in Cammarata v. Bright Imperial Limited, B218226, (Cal. App. 2011), which echoed the sentiments expressed in Tamkin. In Cammarata, the former proprietor of several subscription-based adult entertainment websites sued the owner of an adult website called “Redtube,” a so-called “tube-based” website that did not charge its visitors a fee but instead earned its revenues through advertising. The plaintiff, Kevin Cammarata, alleged that Redtube was selling goods below cost to injure Cammarata's business, using unlawful loss leaders and otherwise engaging in unfair business practices under California Business and Professions Code '17200.

Redtube's proprietor filed an anti-SLAPP motion, which the trial court granted in part and denied in part, leaving Cammarata's unfair business practices claim intact. Neither party disputed on appeal that Redtube's content was protected speech, nor that it was speech on a matter of substantial public interest. Instead, Cammarata argued (akin to the plaintiffs in Tamkin) that Redtube's business practices were not protectable under the anti-SLAPP statute because they would be actionable in any context, media or non-media. The California Court of Appeal disagreed. In reversing the trial court's decision, the court reaffirmed the notion that context was, indeed, everything. In particular, the court held that: 1) the publication of video on the Internet (the dissemination of speech) is conduct protected by the anti-SLAPP statute; and 2) the predatory pricing allegations were aimed directly at that conduct.

Nonetheless, not all courts have been so expansive in their protection of the dissemination of media over the Internet. For example, earlier this year in Greater LA Agency on Deafness v. Cable News Network Inc., 11-03458 (N.D.Calif. 2012), the U.S. District Court for the Northern District of California declined to extend anti-SLAPP protection to CNN's decision not to provide closed captioning for videos posted on CNN.com. The district court recognized that it was facing the prospect of “a rule without limits” given the expansive interpretations applied to the anti-SLAPP statute with regard to the production of media works. In this instance, the district court concluded that CNN's decision regarding the use of closed captioning was not properly construed as “in furtherance of its broadcast activities.” The court held that requiring CNN to adopt closed captioning would not: a) impinge on CNN's broadcast or expressive content; b) interfere with its editorial discretion; or c) subject CNN to an unfair increase in costs, resulting in fewer videos being posted.

The outcomes have been the same in the movie context as they have for television production and distribution. In Towers v. David La Chappelle Studio Inc., B217526 (Cal. App. 2010), the California Court of Appeal held that the documentary Rize, based on a dance competition held at the Great Western Forum, was an issue of public interest. The competition was held at a public venue before a paying audience and the award-winning documentary based on the competition was distributed theatrically. The U.S. District Court for the Western District of Washington reached the same conclusion in Aronson v. Dog Eat Dog Films Inc. , 738 F. Supp. 2d 1104 (W.D.Wash. 2010), a lawsuit regarding the documentary Sicko by Michael Moore. The district court held that: a) “[i]t is beyond dispute that documentary movies involve free speech”; and b) it was not necessary that the plaintiff (who appeared in the film for 16 seconds) be a public figure, so long as there was a direct connection between the plaintiff's appearance and a topic of widespread public interest.

Again, the opinions in Towers and Aronson may have seemed easy to reach given that they concerned documentaries as opposed to pure entertainment works. However, there were two additional opinions reached last year which, in keeping with Tamkin, above, continued to afford anti-SLAPP protection to hybrid and/or pure entertainment works. In the first, Olson v. Cohen, B221956 (Cal. App. Sep. 12, 2011), the Court of Appeal held that claims arising out of Sacha Baron Cohen's conduct during the making of the documentary-style film Bruno were subject to anti-SLAPP protection since it was intended to elicit strong homophobic reactions from those around him “for the purpose of entertainment and social satire.” In doing so, the court quoted from the U.S. Supreme Court opinion in Joseph Burstyn Inc. v. Wilson , 343 U.S. 495, 501 (1952), emphasizing that “'[t]he importance of motion pictures as an organ of public opinion is not lessened by the fact that they are designed to entertain as well as to inform.'”

The Supreme Court's opinion in Burstyn found its way into another decision last year, Sarver v. The Hurt Locker LLC, 2:10-cv-09034 (C.D.Calif. 2011), an action brought by Jeffrey Sarver alleging that the film The Hurt Locker was based on his real-life experiences. The district court, in concluding that the defendants had satisfied the first prong of the anti-SLAPP analysis, quoted Burstyn for the proposition that movies are both a “'significant medium for the communication of ideas'” and are a form of expression protected by the rights of free speech and free press guaranteed by the First and Fourteenth Amendments.

The opinions in the film, television and Internet contexts have been accompanied by a host of others in a myriad of contexts, including radio, magazine, book and video-game publishing. For example, in Nguyen v. KSJX-AM 1500, H032686 (Cal. App. 2009), the court of appeal concluded that statements made on public radio regarding a dispute between two prominent members of the Vietnamese-American community in Northern California were sufficiently connected to an issue of public interest to satisfy the first prong of the anti-SLAPP analysis. The court reached the same conclusion in Lufti v. Spears, B218211 (Cal. App. 2010), regarding statements made about Britney Spears ex-manager, Sam Lufti, in a memoir written by Spears' mother, Lynne Spears.

Of greater interest is the decision in No Doubt v. Activision Publishing Inc. , 192 Cal. App. 4th 1018 (2011), an action brought against Activision by the rock band No Doubt in connection with the use of the band's music, and images of the band members, in the video game Band Hero . No Doubt had executed a character license agreement for the use, but alleged that Activision had exceeded its scope by allowing players to change the band members' voices, to have them play without the rest of the band or in other bands, and to play songs by other bands. No Doubt sued Activision for fraud, violation of the right of publicity, breach of contract, and unfair competition, among other things. Activision filed an anti-SLAPP motion as to the latter two claims, which was denied by the trial court.

There appears to have been little dispute on appeal that videogames are expressive works subject to First Amendment protection and that the use of No Doubt in Band Hero was an issue of public interest given the band's popularity. However, No Doubt argued that the dispute between the parties arose out of a contract (the character license agreement), not Activision's exercise of its free speech rights. The court of appeal disagreed, noting that this was neither a bar to anti-SLAPP protection generally, nor a bar to its application to Activision's motion. The court then concluded that Activision had met its initial burden on the motion.

In doing so, the court appeared responsive, in part, to Activision's argument that it had a First Amendment right to exploit the likenesses of No Doubt's members with or without a license agreement. Nonetheless, after engaging in the second prong of the anti-SLAPP analysis, the court concluded that Activision did not have a First Amendment right to do so. The issue was perhaps more properly put by Justices Suzukawa and Epstein in their concurring opinion, which is that that Activision's claims arose from “First Amendment-protected activity,” meaning the production and distribution of video games, not the violation of No Doubt's right of publicity. Regardless, the opinion reaffirms the availability of an anti-SLAPP motion (although Activision's motion was ultimately denied), even where the plaintiff has sued under a contract theory, so long as a claim can fairly be described as arising out of the production of expressive content.

The last decision worth discussion in this context is Stewart v. Rolling Stone LLC , 181 Cal. App. 4th 664 (2010), filed by the members of independent rock bands who were touted in a special pullout section of Rolling Stone . The problem was that the special section included two full-page ads for Camel cigarettes, illustrated in the same style as the rest of the supplement. The bands sued under both statutory and common law privacy theories, specifically, the unauthorized use of their names for commercial advantage. Rolling Stone filed a motion to strike, which was denied by the trial court on the grounds that the supplement was effectively a “9-page advertisement for Camel cigarettes” and was thus commercial speech unprotected by the anti-SLAPP statute.

The California Court of Appeal reversed. Of note, the court held that there is no authority for the proposition that the anti-SLAPP statute contains a categorical exception for commercial speech. Instead, it does not apply to defendants “primarily engaged in the business of selling or leasing goods or services” and where the statement or conduct at issue “consists of representations of fact about the person's or a business competitor's business operations,” among other things. Cal. Civ. Proc. Code '425.17(c). Because the “goods” that Rolling Stone sells are magazines and the statements at issue did not concern Rolling Stone or its competitors, the limited exception did not apply. Equally as important, because the speech and conduct at issue arose out of the design and publication of an editorial supplement to Rolling Stone concerning a popular music genre, the court of appeal held that the defendants clearly qualified for anti-SLAPP protection.

Conclusion

It has been a banner couple of years for media and entertainment defendants in the anti-SLAPP context, both because courts have increasingly recognized that the first prong of the anti-SLAPP analysis extends to the production and distribution of entertainment works, and because courts have continued to afford anti-SLAPP protection to works in a wide variety of media. If the trend at the trial court level properly responds to the decisions of the court of appeal, fewer determinations on anti-SLAPP motions in the media and entertainment context will turn on the question of whether the conduct relevant to the complaint concerns an issue of public interest and instead will focus on the question of whether the plaintiff can make out a viable prima facie case.