A few years ago, a Sony Pictures employee came up with a neat idea for making movies seem great: invent a reviewer and plaster his nonexistent comments in advertisements! Allegedly, only the employee's immediate supervisor knew of this inventive bit of deception (which begs the question about self-deception, but that is not legally significant—at least not yet). This was later exposed. Naturally enough, somebody sued Sony for the deception under California Business and Professions Code § 17200 (California's consumer fraud statute). The interesting twist is Sony's response: an accusation that the lawsuit was merely a SLAPP action (California Code of Civil Procedure § 425.16).
SLAPP stands for "strategic lawsuit against public participation." In its "original" form, a SLAPP suit might be filed by a developer against an individual who criticized the environmental soundness of the development plan in public, particularly if that criticism resulted in an inquiry by a zoning board or other government agency. SLAPP suits often accuse a party of defamation, interference with contractual advantage, or another business tort. The key is that defending against a SLAPP suit is expensive and takes attention away from the underlying criticism, even when it does not succeed in outright silencing the critic. That Sony has resorted to calling this a SLAPP suit, while perhaps within the literal meaning of § 425.16, put the iron boot on the other foot: this is the equivalent of the environmentalist suing the developer to stop deceptive statements, with the developer responding that the environmentalist is unjustly trying to suppress the developer's free speech rights.
Yes, this is a bit like Nike v. Kasky. It turns on the distinction between the extremes of deceptive advertising and political speech. As the California Court of Appeals put it,
For purposes of the anti-SLAPP statute, if Sony’s film advertisements constitute commercial speech, the statute does not apply because the ads did not “further[]… [Sony’s] right of petition or free speech [arising] under the United States or California Constitution in connection with a public issue.” The trial court found that the ads were commercial speech. We agree.
Rezec v. Sony Pictures Entertainment, Inc., No. B160586 (Cal. Ct. App. 2d Dist., Jan. 27, 2004), slip op. at 5 (citations omitted) (PDF, 154kb).
There is a lot of room between the two extremes of pure commercial advertisement (on this analysis, not protected by the First Amendment) and pure political speech (which is). Consider, for example, a vendor who is trying to sell products through student representatives at a high school—perhaps T-shirts emblazoned "Fuck the Draft". This would be a difficult case, with multiple clashing rights. That is not Rezec (or, for that matter, Suziki Motors v. Consumer's Union or Nike v. Kasky), for a very simple reason. "Fuck the Draft" is an opinion that is directly related to political speech, and thus has a strong constitutional relationship to the First Amendment. Attributions of puffery to nonexistent reviewers, however, are not, except perhaps in a satire like This Is Spinal Tap. There is no such suggestion here; Sony's own conduct in firing the "responsible employee" and suspending his immediate supervisor prevents such an argument from passing the laugh test.
The point, then, is this: The right to sell does not include the right to deceive along with it, even when the means of selling involves something that might be characterized as "speech." It might include the right to include utterly ridiculous excerpts from sycophantic reviewers who would say anything for a few more shrimp at Spago—but to attribute those statements to those reviewers, those reviewers must actually have stated it. <SARCASM> It would also be a good idea if they even exist in the first place. </SARCASM> This issue has some interesting parallels in the McCain-Feingold requirement that political ads of certain natures at certain times must clearly state whether they originate with the candidate or a third party. But that is for another time. Under consumer protection law, there is a line between "mere puffery" and outright deception, and there is little question where the Sony ads fall. Thus, claiming that being held responsible for the results of such deception is an infringement on the First Amendment rights of the deceiving commercial party would mean that no lawsuit for fraud could ever succeed, and would remove fraud from the realm of civil or criminal wrongs in this country. The First Amendment does not reach that far.
None of this is to say that Sony will necessarily lose (I think they will); it is only to say that Sony's accusers may have their day in court to try to prove their case and obtain relief. Were I in charge of Sony's defense, I would seriously consider defending by positing that movie reviews are such incredible crap that even the unsophisticated consumer could not reasonably rely upon them; but that would be political suicide in Hollywood. Nonetheless, it has worked as a libel defense in England; more some other time.
I sure seem to have it in for reviewers today.