The Volokh Conspiracy
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From the Eleventh Circuit's decision yesterday in Anderson v. Coupons in the News (before Judges Wilson, Jordan & Newsom):
Accepting the factual allegations in the second amended complaint as true, Ms. Anderson alleged that she was arrested at a Best Buy store following a dispute over coupons. The store manager told police that Ms. Anderson had dropped her pants and was showing her buttocks.
Ten days later, Coupons published an article on its website entitled "Pantless Couponer Arrested After Checkout Dispute." The article was accompanied by a photograph of the front of a Best Buy store and a superimposed image of Ms. Anderson's booking photograph.
In Count 1 of her second amended complaint, Ms. Anderson alleged that Coupons violated Fla. Stat. § 540.08(1)(a), which (as relevant here) prohibits the unauthorized publication or use of a person's photograph or other likeness "for the purpose of trade or for any commercial or advertising purpose." The Florida Supreme Court has held that the purpose of § 540.08 "is to prevent the use of a person's name or likeness to directly promote a produce or service because of the way that the use associates the person's name or personality with something else."
Ms. Anderson characterized the Coupons article … as an "advertisement" in her complaint, but the district court ruled that a review of the document demonstrated that it was an article and not an advertisement. And because it was not an advertisement or commercial speech, Ms. Anderson's claim under § 540.08(1)(a) failed.
We agree with the district court that Ms. Anderson failed to state a plausible claim under § 540.08(1)(a)…. [The material she is suing over] is an article reporting on Ms. Anderson's arrest. It is not an advertisement. Nor is it commercial speech.
Ms. Anderson argues that Exhibit B is a publication that is a "digital marketing tool known as a click funnel advertisement designed and used solely to promote the business of coupons which is advertising." The argument is based on a line in Exhibit B that allows a reader to click to contact Coupons about advertising. But the complaint does not contain any allegations or claims about a "click funnel advertisement," and Ms. Anderson could not amend her complaint through her response to Coupon's motion for attorney's fees.
Thanks to the Media Law Resource Center MediaLawDaily for the pointer.