Stewart v. Rolling Stone LLC (2010)

February 1, 2010

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The November 15, 2007 issue of Rolling Stone Magazine included a four-page “butterfly gatefold”—an insert to the magazine that had both advertising and editorial pages. The editorial pages within the gatefold were entitled “Indie Rock Universe” and discussed more than 180 rock bands. The rest of the gatefold was a tobacco advertisement that focused on R.J. Reynolds’ commitment to and support for independent record labels. Certain performing artists filed a class action against Rolling Stone on behalf of all the rock bands mentioned in the editorial portion of the gatefold, alleging that Rolling Stone used their names without consent for the commercial purpose of advertising tobacco. Rolling Stone filed an anti-SLAPP motion. The trial court denied the motion, ruling that Rolling Stone’s layout decision in publishing “an allegedly integrated 9-page advertisement” for cigarettes could lead a trier of fact to conclude that the editorial feature was “inextricably entwined” with the surrounding advertisement, transforming the editorial feature into commercial speech.

The California Court of Appeal (First District, Division One) reversed, holding that the editorial feature was noncommercial speech as a matter of law: “Simply put, there is no legal precedent for converting noncommercial speech into commercial speech merely based on its proximity to the latter. There is also no precedent for converting a noncommercial speaker into a commercial speaker in the absence of any direct interest in the product or service being sold.”  The court also independently grounded its holding in Rolling Stone’s freedom of the press. The court noted that “‘the First Amendment protects the newspaper itself, and grants it a virtually unfettered right to choose what to print and what not to.’ This right has been extended to the content and placement of advertisements.”

Horvitz & Levy LLP represented American Media, Inc., Association of Alternative Newsweeklies, California First Amendment Coalition, California Newspaper Publishers Association, Magazine Publishers of America, Inc., The Reporters Committee for Freedom of the Press, and Time Inc. as amici curiae in support of Rolling Stone.