Hilton v. Hallmark Presents Interesting Free Speech Questions
In September, Hallmark Cards requested an en banc hearing of the Ninth Circuit to review its decision affirming the district court’s denial of Hallmark’s anti-SLAPP motion to dismiss a lawsuit against it by Paris Hilton.
Hilton brought suit against Hallmark in 2007 for a greeting card that pictured Hilton uttering her famous, and trademarked, phrase, “That’s hot.” She alleged trademark infringement, violation of the common law right of publicity, and infringement of privacy. Hallmark brought a motion to strike the state claims under California’s anti-SLAPP law, arguing that the greeting card is protected speech under the statute. Hilton argued in turn that she had asserted merited claims, and so the anti-SLAPP motion must be denied.
Judge O’Scannlain affirmed the district court’s denial of Hallmark’s anti-SLAPP motion. The court found that, while Hallmark had satisfied its burden of showing that the lawsuit arose from Hallmark’s protected free speech in connection with an issue of public interest, Hilton had met her burden in establishing that her suit has a limited level of merit, and so denied the anti-SLAPP motion, allowing the suit to proceed.
Hallmark is now appealing the denial by petitioning for an en banc review of the decision. Hallmark argues that the greeting card is unquestionably transformative fair use under U.S. trademark laws, and therefore that Hilton cannot have shown the merit needed to survive the anti-SLAPP motion.
The suit has raised questions of whether Hallmarks’s greeting card-speech should give rise to an anti-SLAPP motion, and has also raised important questions of what constitutes protected speech. Hallmark’s attorneys have indicated a willingness to take the case to the U.S. Supreme Court if necessary, and said that the current ruling flies in the face of Ninth Circuit Judge Alex Kozinski’s concern that courts too frequently prevent celebrities from being “mocked.”