It's tough to figure out who to root for when Paris Hilton sues Hallmark Cards.
Does Paris Hilton get money for Hallmark putting her face and catchphrase ("It's hot") on a birthday card mimicking "The Simple Life"? Does Hallmark get to file an anti-SLAPP motion, and is it entitled to prevail?
Justice O'Scannlain gets the result right, and affirms the district court's denial of Hallmark's anti-SLAPP motion (and dismisses Hilton's interlocutory appeal of the denial of its 12(b)(6) motion). He also gets in some light comedy, which is nice. (Typical example: "[Hilton] is also famous for starring in “The Simple Life,” a so-called reality television program. The show places her and fellow heiress Nicole Ritchie in situations for which, the audience is to assume, their privileged upbringings have not prepared them. For example, work.")
But while there are parts of the opinion I like, as well as agree with, there are other parts I find less compelling. On the merits, for example, I'm not at all sure that I agree that Hallmark's conduct even properly gives rise to an anti-SLAPP motion. Sure, what Hallmark did entailed free speech, but to be protected, it's gotta be free speech in connection with a matter of public interest. Putting Hilton's face and catch phrase on a birthday card doesn't qualify in my mind, either as a matter of first principles or precedent. This is just regular old commercial conduct, and the fact that it's a celebrity doesn't change things. Misappropriation of someone's likeness doesn't -- and shouldn't -- get anti-SLAPP protection; instead, you just litigate these things out like any other case. Judge O'Scannlain's contrary analysis doesn't persuade me otherwise.
More broadly, I think this opinion may demonstrate something that I hadn't really considered before; namely, how difficult it may be for out-of-state appellate judges to grasp an area of state law that's non-routine yet fairly detailed. As I was reading Judge O'Scannlain's analaysis of California law, there were quite a few places where I said to myself: "No, that's not really right" or "That's a bit off." Moreover, the entire opinion sounds like it's written by a person who, prior to authoring the thing, has never even heard of an anti-SLAPP motion, and who's doing their best to articulate the relevant doctrines and resolve the appeal based upon a fairly superficial, first-level reading of the cases cited in the briefs.
Which, quite frankly, may in fact be the case. We know the bench memo and draft are written by a law clerk, after all, most of whom went to a national law school. How much do you learn about anti-SLAPP motions in your first -- or any other -- year? Almost invariably nothing. So you really do often start these things knowing nothing at all about the subject, and I'd not be at all surprised if the opinion reflects that fact.
That's not a slam. Or at least I don't intend it as one. When I was clerking, for example, I recall writing a trademark opinion -- one that continues to be quite relevant in the field -- even though I knew nothing at all about the subject area and felt like I was (of necessity) just skimming the surface of an in-depth body of law. Did I do a tolerable job? I hope so. Could someone with a great deal of expertise and experience in trademark law have done better? I'm sure they could. That's the nature of the beast.
What this opinion nonetheless highlighted for me is the importance -- or at least benefit -- of having appellate judges who are not only smart, but who also have a particularly broad level of background knowledge and expertise. That's hard to achieve. For example, here, I have no doubt that Judge O'Scannlain and his clerks are smart, and hardworking as well. Nonetheless, on a state-law topic like this -- one with a lot of cases, and a lot of detail, but which you don't see on the federal level every day -- the end product is an opinion that's often superficial as well as (in my opinion) materially wrong. Does it reach the wrong result? No, thankfully. But it does make for some dubious precedent. And were the facts of the tort itself different, it would have reached an erroneous result. Which would have been even worse.
You've got a lot of federal appellate judges who are good at, say, criminal cases, in part because they were former prosecutors and/or district court judges who spent most of their days on such matters. When you get to civil cases, however, and particularly state-law issues, sometimes you see opinions that are not so great. Even if written by perfectly decent chambers.
In my mind, this is one of them.