Serova v. Sony decided!

August 19, 2022

Spoiler alert: The consumers win.

The California Supreme Court has decided a significant case upholding the state’s consumer protection statutes against a First Amendment challenge, giving a boost to both advocates for honesty in advertising and Michael Jackson fans.

The case arose when one such fan filed a lawsuit against Sony alleging that three of the nine songs on the posthumous album Michael were not actually sung by the King of Pop. The court of appeal held that the plaintiff’s false advertising claims violated Sony’s free speech rights, a ruling that called into question the ability of consumers of entertainment to receive truthful information about the works they purchase. The California Supreme Court, however, reversed. The state’s highest court held that neither the First Amendment nor the state’s anti-SLAPP law prevented the plaintiff’s false advertising claims from going forward.

The Supreme Court’s reasoning closely matched the argument set out in an amicus brief that the Center filed on behalf of a broad coalition of consumer groups. The brief argued, and the Court held, that this was fundamentally a case about false advertising. Neither the product at issue – a record album – nor the niceties of the anti-SLAPP statute changed that basic fact.

An album is fully protected artistic expression. But marketing claims about the album are not. An “expressive work,” the Court held, is still “a product for sale.” In its most thorough treatment in two decades of the boundaries of so-called commercial speech, the Court reaffirmed that the category broadly includes commercial advertising of all types. It also confirmed that false or misleading commercial speech may be restricted. Even advertisements promoting works of art or music can mislead consumers, and consumers have a right not to be deceived about the origins of those works. That is true whether or not the advertiser knows that its statements are false. If the law were otherwise, unscrupulous sellers would be able to peddle fraudulent works of art, and would have less incentive to learn about the quality of their wares. The Court affirmed the well-established (but oft-challenged) principle that advertisers are responsible for the accuracy of their statements because they are in a better position than consumers to know the truth about their products.

In other words, false advertising is not protected speech. To quote The Man in the Mirror: “No message could’ve been any clearer.”

The Center was joined on the brief by Truth in Advertising, Inc., Public Counsel, the Legal Aid Society of San Diego, Housing & Economic Rights Advocates, the East Bay Community Law Center, Consumers for Auto Reliability & Safety, and Consumer Action. 

The decision was covered widely in the press, including stories featuring Center personnel in the LA Times, Bloomberg Law, and the San Francisco Chronicle.