In Closely Watched Case, Calif. Court Dismisses Indie Rockers’ Suit Over Magazine’s Cigarette Ads

Noncommercial speech doesn't lose its broad First Amendment protections even when it's tucked into a thicket of advertising, California's 1st District Court of Appeal held Thursday.

A unanimous three-justice panel dismissed a lawsuit against Rolling Stone magazine brought by a class of indie rockers. Led by bands Xiu Xiu and Fucked Up, the plaintiffs accused Rolling Stone of trading on the names of 186 groups listed in a five-page article to sell four pages of neighboring advertisements to R.J. Reynolds in the November 2007 edition.

The magazine's so-called gatefold layout was intricate. The editorial piece "Indie Rock Universe" included colored-pencil-like graphics and the printed names of leading bands in the musical genre. The article was ensconced in four pages of ads featuring photographic collages that touted Camel cigarettes and the brand's support of independent record labels.

The bands sued, arguing that the "integrated" layout implied that they endorsed Camels. In July 2008, Alameda County Superior Court Judge Bonnie Sabraw denied Rolling Stone 's motion to strike the suit on anti-SLAPP grounds, holding that a trier of fact could conclude that the feature had been "transformed" into commercial speech by its proximity to the Camel ads.

But the appellate panel in Rolling Stone v. Stewart, A122452, disagreed. The justices found no evidence that R.J. Reynolds, Camel's parent company, influenced Rolling Stone's editorial content or decisions. What's more, the justices wrote, Rolling Stone's main purpose is publishing a magazine -- noncommercial speech -- not selling cigarettes.

"Simply put, there is no legal precedent for converting noncommercial speech into commercial speech merely based on its proximity to the latter," Justice Robert Dondero wrote. "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 case was closely watched by a group of seven publishing houses and First Amendment groups, which filed an amicus curiae brief backing Rolling Stone.

"It was a very important reaffirmation of the First Amendment rights of media entities, especially to be able to print their editorial content without being subject to lawsuits because of mere proximity to commercial speech," said Jeremy Rosen, a partner with Encino, Calif.'s Horvitz & Levy who represented the media groups. "Otherwise, it would have had a chilling effect on newspaper or magazines or Web sites."

Bartko, Zankel, Tarrant & Miller's Christopher Hunt, who represented the bands, didn't return a call for comment.

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