From today's unanimous decision of the California Supreme Court in Serova v. Sony Music Entm't, written by Justice Martin Jenkins:
Plaintiff Vera Serova purchased Michael, an album of music billed as Michael Jackson's first posthumous release. The album's back promised "9 previously unreleased vocal tracks performed by" the pop superstar, but Serova now thinks some of these tracks, the so-called Cascio tracks, feature a Jackson imitator. She asserts Michael's marketers misled her and violated two California consumer protection laws, the unfair competition law and the Consumers Legal Remedies Act, by misrepresenting the vocalist on the Cascio tracks through the album's packaging and in a promotional video….
[The lower court held that, e]ven if the statements about Jackson's contributions were false, …. the First Amendment requires classifying them as noncommercial speech, a classification that would offer the statements greater protection from government regulation and, per the parties' agreement, put them beyond the reach of the consumer protection laws Serova invokes. The album marketers' statements were, in the court's view, noncommercial, because they "were directly connected to music that itself enjoyed full protection under the First Amendment" and "concerned a publicly disputed issue about which [the speaker] had no personal knowledge."
We disagree and reverse. The album-back statement and video were commercial advertising meant to sell a product, and generally there "can be no constitutional objection to the suppression of commercial messages that do not accurately inform the public." We recognize artistic works such as albums, in some instances, enjoy robust First Amendment protections, but that does not turn all marketing of such works into noncommercial speech, and it does not do so in this case. Additionally, a seller's purported lack of knowledge of falsity does not tell us whether that seller's speech is commercial or noncommercial, and commercial speech does not shed its commercial nature simply because a seller makes a statement without knowledge or that is hard to verify. The First Amendment has long coexisted with no-fault false advertising laws….
To be sure, sometimes commercial advertising for noncommercial speech—"noncommercial speech" here meaning speech such as books, films, or music, which isn't "commercial speech" for First Amendment purposes even though it's sold in commerce—is indeed assimilated to noncommercial speech. For instance, the First Amendment protects, notwithstanding state "right of publicity" laws, an author's right to publish and sell an unauthorized biography, and that includes the right to use the subject's name in ads or covers for the biography. But the court distinguished that situation thus:
