Stewart, et al. v. Rolling Stone, L.L.C., et al.

Plaintiffs, 186 musical artists, claimed that Rolling Stone Magazine and R.J. Reynolds Tobacco Company knowingly and deliberately associated their names with an advertisement for Camel brand cigarettes without the artists' prior authorization by placing their names within the same five-page "feature" in the magazine's issue. The defendant magazine and the producer of Camel brand cigarettes, R.J. Reynolds Tobacco Company, defended the advertisement as falling within non-commercial speech protected under the Constitution. The trial court found that the defendants had included the plaintiffs "inextricably" in the advertisement and that it had constituted commercial speech. The trial court therefore refused to dismiss the case at the request of the defendants. The Court of Appeals of California, First District, Division One, reversed the trial court's decision, finding that the advertisement was non-commercial as a matter of law, in part, because the magazine did not directly benefit from the sale of the advertised cigarettes and the cigarette company played no role in designing the advertisement. Moreover, there was no evidence of actual malice on the part of the defendants. Therefore, the Court of Appeals found that the advertisement was fully protected under the right to free speech under the Constitution.

Stewart, et al. v. Rolling Stone, L.L.C., et al., 181 Cal.App.4th 664, Court of Appeals of California, First District, Division One (2010).

  • United States
  • Jan 28, 2010
  • Court of Appeals of California, First District, Division One
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Parties

Plaintiff

  • Caralee McElroy
  • Damian Abraham
  • Devin Hoff
  • James Stewart
  • Michael Haliechuk
  • Sandy Miranda

Defendant

  • R.J. Reynolds Tobacco Company
  • Rolling Stone, L.L.C.

Legislation Cited

Related Documents

Type of Litigation

Tobacco Control Topics

Substantive Issues

Type of Tobacco Product

None

"There can be no question that the Feature is expressive. Even if we assume that it is somehow incorporated into the Camel ad by virtue of its placement in the magazine, its supposed "commercial purpose" would be "inextricably entwined" with its expressive elements, namely, the fanciful depiction of this genre of music as a universe, complete with planets and constellations that define the various styles and artists whose music has contributed to this genre. The employment by Rolling Stone of whimsical expression in designing informational pages of its magazine should not necessarily be curbed. The union between artistic graphics and written commentary can be a welcome change to the columnar presentation of many current publications. We thus find this case to be analogous to Hoffman, and conclude that the Feature is entitled to full First Amendment protection. Our conclusion is supported by the evidence in the record. It is undisputed that the cigarette company had no role in the design of the Feature itself. A declaration from Will Dana, Rolling Stone's managing editor, states that R.J. Reynolds had no input into the content, design or look of the Feature, and did not review or approve it. Mr. Dana's declaration further explains that, consistent with industry practice, Rolling Stone maintains a "wall" between its editorial and advertising staff to insure "that there is no advertiser influence or pressure on editorial independence." He verified that the Feature was created by graphic artist Benjamin Marra and the magazine's editorial staff, who, at the time, were unaware that R.J. Reynolds had even bought the surrounding advertising space. Mr. Dana further stated that with respect to editorial gatefolds, "the advertiser may generally know the general topic of the gatefold (for example, that the gatefold will be about rock and roll trivia), but not specific content."