New verse, same as the first in Sony/Michael Jackson case

Serova v. Sony Music Entertainment, 2018 WL 4356891, — Cal.Rptr.3d
—-, No. B280526 (Ct. App. 2018)
The court amends its opinion finding that Sony’s advertising
that Michael Jackson was the performer of all the songs on the posthumous
Jackson album Sony released wasn’t commercial speech, but the amendment doesn’t make things any
better.  This provides an interesting
contrast to the other day’s One A Day opinion. 
The court here adds a footnote arguing that it didn’t matter whether
consumers would have understood Sony’s advertising to make factual claims about
the singer’s identity. What mattered instead was Sony’s lack of personal
involvement in creating the recordings [pretending that “Sony” is the kind of
entity that can have personal involvement]. It’s not that Sony’s statement is
opinion (in which case consumer understanding of what claim was being made
would be relevant), it’s that Sony’s lack of personal knowledge of its own
business operations makes the speech noncommercial.
Obviously, this creates pretty bad incentives for
corporations, but I think it’s worth reiterating that this is also inconsistent
with Kasky, on which the court of appeals purportedly relies, since Nike was
making statements about its subcontractors’ practices that the California
Supreme Court concluded were commercial speech. [Nike’s defenders even argued
that, precisely because it was talking about its subcontractors, the argument
that commercial speech has greater verifiability than other kinds of speech
shouldn’t apply.]  Nike’s statements were
the kinds of factual claims, including claims about Nike’s outsourcing
practices and their results, that it was in a better position to verify than
consumers. Consumers were also likely to rely on Nike’s expertise and greater
relative access to knowledge, as the Bayer court observed with respect to
Bayer.  To the extent that Nike may have
lacked “actual” knowledge, that was (1) a creation of Nike’s own choices to
subcontract rather than to do the work itself, for which it was responsible
(the analogy between that and the situation here is fairly strong), and (2) a reason that
Nike should have verified its statements rather than just saying them. [In the
actual situation involved in Nike, Nike maintained that it took steps to
substantiate its advertising claims—it simply took the position in the
California and US Supreme Courts that it didn’t have to do so and should be
able to win dismissal even assuming it had made those claims without knowing if
they were true.]

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