Fri Jan 29, 2010 @ 11:02AM PST
By Eriq Gardner
An appeals court has just handed down a victory for news organizations, affirming that the First Amendment gives publications wide latitude to publish feature spreads next to advertisements that may be distasteful to those being profiled.
The case involves 186 indie musicians who sued Rolling Stone magazine after being spotlighted in an "Indie Rock Universe" feature within a Camel cigarettes advertising spread. A very entertaining lawsuit
was filed in 2007 that alleged that the publication made an "unauthorized use of artist names for commercial advantage."
Last year, a trial court reached the surprising conclusion that Rolling Stone had "inextricably entwined" the Indie Rock Universe feature with the Camel ad. The decision threatened to classify some magazine, newspaper and Web content as commercial speech with diminished First Amendment protection.
But on Thursday, the First District Court of Appeals reversed the decision, ruling that while Rolling Stone is engaged in commerce, it is not engaged in the production, distribution or sale of cigarettes. The decision notes: "Rolling Stone magazine is merely the medium through which commercial messages are delivered by the actual commercial speakers, namely, the advertisers themselves."
The appeals court went on to say that contrary to the claims by the plaintiffs, it isn't hard to tell where the advertisement begins and ends. The ruling also made clear that plaintiffs are required to provide clear and convincing evidence that the defendants acted with actual malice and that they suffered an injury, and that in this case, a lack of evidence presented itself for plaintiffs to meet their burden.
Perhaps most importantly, in dismissing this case, the appeals court points to broad constitutional protections for speech and the press. This decision can be appealed, but for now news subjects will have a tougher time claiming that an unauthorized use of a name and likeness constitutes an unfair commercial advantage.