Judge Agrees Consumers Can Sue Over Misleading Movie Trailers

The weird judge-invented "commercial speech" exception to our right to free expression breeds strange results in suit against distributors of the 2019 movie Yesterday.

Feature films are works of art, and so, those who make them would argue, are film trailers. Some famously effective ones, like an early teaser for the classic Jurassic Park, are entirely separate mini-movies containing no actual footage from the film. Yet it is a general norm that a movie trailer consists of artfully edited scenes from a movie to give you a hint of what that movie has to deliver to its eventual consumer.

Two ridiculous fans of actress Ana de Armas think violating that norm means someone owes a ton of cash. Peter Michael Rosza and Conor Woulfe got so excited by the sight of that actress (having the protagonist sing "Something" to her on a TV talk show) in a trailer for the 2019 film Yesterday (about a singer/songwriter in a world where the Beatles never existed) that her being edited out of the final film as released was a huge blow to them.

So huge a blow that they insist in a lawsuit they deserve compensation and damages for it from the film's owner and distributor Universal after renting and watching the film streaming from Amazon. (She was in about 15 seconds of the 3 1/2–minute trailer, with no dialog. The trailer did properly flag Lily James as the starring female lead.) They are seeking, as Variety reports, at least $5 million as representatives of an alleged class of harmed trailer-watchers.

This week, U.S. District Judge Stephen V. Wilson for the Central District of California agreed that Woulfe et al. v. Universal can move forward at least in part after considering what Judge Wilson characterizes as a "blunderbuss of advertising, fraud, and misrepresentation claims."

Universal tried to use California's Anti-SLAPP laws (which, broadly speaking, provide certain legal relief against actions that would quash free expression) to throw out the suit, insisting its trailer "furthers Universal's free speech rights regarding the movie, and…the trailer itself is a protected expressive work."

In his ruling, Judge Wilson agrees the trailer was an act of free speech. But, alas, that wasn't the end of it, as it should have been.

Universal tried to argue that de Armas being in the trailer was not a sufficient reason to believe they had made a misleading "factual representation" that she'd be in the movie. Since the trailer did not explicitly state she'd be in it, there was no actionable misleading. Judge Wilson said no to that claim; by the reigning legal standards for misrepresentation, the trailer could be seen as something that would make "a significant portion of reasonable consumers" believe that "De Armas and the Segment would be in the movie." Judge Wilson pooh-poohs Universal's concern that future courts might absurdly litigate very niggling questions—like how long an actress appears in a film, what their significance in the film is, or whether they speak—if this suit goes forward.

Along with a surprisingly large number of legal complications that arise around this silly claim laid out in tedious detail in Judge Wilson's full ruling, including some claims the movie watchers had against the film studio for violating a long list of laws that were not allowed to proceed, ultimately Judge Wilson considers the plaintiffs deserve their day in court against Universal. He believes they "have sufficiently alleged that the trailer is false, commercial speech" and that sort of speech "enjoys a limited measure of protection, commensurate with its subordinate position in the scale of First Amendment values."

The notion of "commercial speech" that gets less legal protection and in some nontextual way has a "subordinate position" when it comes to the First Amendment was invented whole cloth by the Supreme Court in the 1942 case Valentine v. Chrestensen. Even in its overreach, it is meant to apply to speech that is "purely commercial advertising" (hardly true for a movie trailer, which has its own pleasures and uses independent of making people buy a ticket and whose distribution and use are generally very distinct from most commonly understood advertisements). The whole "commercial speech doctrine" on which Judge Wilson let this case proceed gives far too much leeway for clearly illegitimate intrusions on the rights to free speech and expression, leeway courts have far too often taken.

Beyond complicated legal parsings of what were meant to be clearly expressed rights, the lawsuit is just nonsensical on so many practical and reasonable grounds that I hope no judge or jury of sane Americans will grant the plaintiffs their demands after the case is finally heard in full.

Trailers are frequently made and released before the final locking of a finished feature, and it's unreasonable to insist they must, on risk of legal punishment via the courts, only contain things in the final cut. (Given that tort claims are made in and enforced by government court systems, they can unjustly punish expression even when Congress has not specifically passed a law punishing the expression.)

Film industry news site Deadline sums up the fears that arise from this decision to let the suit proceed:

Although Wilson also made a point of saying in his ruling that "the Court's holding is limited to representations as to whether an actress or scene is in the movie, and nothing else," his ruling could complicate things in the loosey-goosey galaxy of trailers. With this example far from the first time a Hollywood movie trailer has featured someone ultimately not in or barely in a film, or even footage not from the pitched picture, the big picture rub here is that the hyperbole visually, verbally and otherwise of trailers may have to be toned down or risk big bucks liability.

Feeling one has been misled by a film trailer should properly be seen as one of the small annoyances of life as a consumer of popular culture and expression; and even if one agrees a scene in a trailer not being in a film is an actionable tort requiring compensation, no sane jurist should countenance a reward or punishment any greater than say two or three times the person's hourly wage for the time it took to watch the movie. (And court costs? No, because you are a fool for choosing to rack up court costs over this highly tenuous "harm.")

In general, the U.S. legal system needs fewer areas where expression of any sort, even expression that can be connected to trying to sell someone something, can leave one open to punishment or costs imposed by the court system.