Commercial advertising for fully protected speech is treated as "commercial speech," and can be restricted on a strict liability basis if it misleads consumers (at least in this sort of situation).

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...

Read Full Story: https://reason.com/volokh/2022/08/18/false-advertising-claim-over-allegations...