9:43am PT by Eriq Gardner
SiriusXM Says First Amendment Protects Decision Not to Air Ads for Escort Sites
SiriusXM is looking to have a California judge reject a lawsuit over its decision not to accept advertisements for escort services. On Monday, the satcaster brought First Amendment arguments in its legal fight with InfoStream Group.
InfoStream was founded by an MIT grad, and its websites including WhatsYourPrice.com and SeekingMillionaire.com have gotten a lot of press for unapologetically connecting "sugar daddies," or wealthy men, with "sugar babies," or younger women. Between 2011 and 2014, the company advertised on SiriusXM channels including MSNBC, CNN, Fox News and Howard Stern, but the relationship ended when Sirius revised its Standards and Practices policy. InfoStream subsequently filed legal claims.
According to InfoStream's complaint (read here), SiriusXM has breached the covenant of good faith and fair dealing by applying its Standards and Practices in a "dishonest and unfair manner, singling out InfoStream for termination while allowing others in similar businesses to continue to advertise."
The company considers the websites it operates as online dating sites and sees the satellite radio company's decision as "pretextual," making the suggestion that SiriusXM cut ties "in order to garner favor from Sirius' Preferred Customers, who would be more apt to pay increased broadcasting fees if they did not have to share the airwaves with InfoStream."
In reaction, SiriusXM looks to use California's SLAPP statute to kill a suit it argues is premised on its First Amendment activity.
The defendant says "the broadcast of radio advertisements is a classic form of speech protected by the First Amendment," and it doesn't matter that what's in question is commercial speech. "Moreover, the First Amendment plainly protects not only SiriusXM’s affirmative broadcast of radio advertisements, but also its decision not to air InfoStream’s ads."
After pointing to a number of news articles about InfoStream's websites and addressing why this is a matter of public concern, SiriusXM argues why InfoStream is unlikely to prevail on its claim. Specifically, the plaintiff says InfoStream is not entitled to benefits because there's no operative contract between the parties nor can there be deemed any "right of renewal" to the expired advertising contracts.
"In addition, SiriusXM is not a 'common carrier,' and thus has no obligation to allow 'members of the public' to 'transmit [content] of their own design and choosing,'” adds SiriusXM's papers (read here).
SiriusXM also contends that the "pretext" issue is phony because it "did not need an excuse to terminate the Agreements — those contracts had already expired by their own terms," and as far as whether it has applied standards "unevenly," SiriusXM says it is under no obligation to apply them evenly.
"Moreover, InfoStream is wrong that SiriusXM continues to advertise for 'escort business' after 'terminating its relationship with InfoStream,'" continues SiriusXM attorney Daniel Petrocelli. "InfoStream presumably is referring to Ashley Madison.com — a different online dating website whose advertisements SiriusXM has previously broadcast and against whom InfoStream has frequently litigated. But Ashley Madison is not an 'escort service' at all, nor do members pay women to go on dates with them, as is the case with InfoStream’s services. Instead, Ashley Madison is a traditional dating website, like Match.com, for people who are in relationships and looking to have a discreet relationship with others who are also in relationships. There is no commercial exchange between the daters. That distinction makes the difference under SiriusXM’s internal standards and practices set forth."