FOR PUBLICATION
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`
`
`PARIS HILTON,
`
`Plaintiff-Appellee,
`v.
`HALLMARK CARDS, a Missouri
`corporation,
`
`Defendant-Appellant.
`
`No. 08-55443
`D.C. No.
`2:07-cv-05818-PA-
`AJW
`ORDER AND
`AMENDED
`OPINION
`
`Appeal from the United States District Court
`for the Central District of California
`Percy Anderson, District Judge, Presiding
`
`Argued and Submitted
`May 6, 2009—Pasadena, California
`
`Opinion Filed August 31, 2009
`Amended Opinion Filed March 23, 2010
`
`Before: John T. Noonan, Diarmuid F. O’Scannlain, and
`Susan P. Graber, Circuit Judges.
`
`Opinion by Judge O’Scannlain
`
`4685
`
`(cid:252)
`(cid:253)
`(cid:254)
`

`
`HILTON v. HALLMARK CARDS
`COUNSEL
`
`4689
`
`Lincoln D. Bandlow, Spillane Shaeffer Aronoff Bandlow
`LLP, Los Angeles, California, argued the cause for the appel-
`lant and filed briefs.
`
`Brent H. Blakely, Blakely Law Group, Hollywood, Califor-
`nia, argued the cause for the appellee and filed the brief.
`
`Lynn Rowe Larsen and Timothy F. Sweeney, Law Office of
`Timothy Farrell Sweeney, Cleveland, Ohio, filed the brief for
`amicus curiae IMG Worldwide, Inc.
`
`ORDER
`
`The opinion filed in this case on August 31, 2009, and
`reported at 580 F.3d 874, is hereby amended. An amended
`opinion is filed concurrently with this order. With this amend-
`ment, the panel has unanimously voted to deny the petition
`for rehearing. Judges O’Scannlain and Graber have voted to
`deny the petition for rehearing en banc, and Judge Noonan so
`recommends. The full court has been advised of the petition
`for rehearing en banc and no active judge has requested a vote
`on whether to rehear the matter en banc. Fed. R. App. P. 35.
`
`The petition for rehearing and the petition for rehearing en
`banc are DENIED. No subsequent petitions for rehearing and
`rehearing en banc may be filed.
`
`OPINION
`
`O’SCANNLAIN, Circuit Judge:
`
`We must decide whether California law allows a celebrity
`to sue a greeting card company for using her image and catch-
`phrase in a birthday card without her permission.
`
`

`
`4690
`
`HILTON v. HALLMARK CARDS
`
`I
`
`Paris Hilton is a controversial celebrity known for her life-
`style as a flamboyant heiress. As the saying goes, she is “fa-
`mous for being famous.”
`
`She is also famous for starring in “The Simple Life,” a so-
`called reality television program. The show places her and fel-
`low heiress Nicole Ritchie in situations for which, the audi-
`ence is to assume, their privileged upbringings have not
`prepared them. For example, work. In an episode called
`“Sonic Burger Shenanigans,” Hilton is employed as a waitress
`in a “fast food joint.” As in most episodes, Hilton says, “that’s
`hot,” whenever she finds something interesting or amusing.
`She has registered the phrase as a trademark with the United
`States Patent & Trademark Office.
`
`Hallmark Cards is a major national purveyor of greeting
`cards for various occasions. This case is about one of its birth-
`day cards. The front cover of the card contains a picture above
`a caption that reads, “Paris’s First Day as a Waitress.” The
`picture depicts a cartoon waitress, complete with apron, serv-
`ing a plate of food to a restaurant patron. An oversized photo-
`graph of Hilton’s head is super-imposed on the cartoon
`waitress’s body. Hilton says to the customer, “Don’t touch
`that, it’s hot.” The customer asks, “what’s hot?” Hilton
`replies, “That’s hot.” The inside of the card reads, “Have a
`smokin’ hot birthday.”
`
`Hilton sued Hallmark, asserting three causes of action. The
`First Amended Complaint alleges misappropriation of public-
`ity under California common law; false designation under the
`Lanham Act, 15 U.S.C. § 1125(a); and infringement of a fed-
`erally registered trademark. Hallmark filed a motion to dis-
`miss each claim under Federal Rule of Civil Procedure
`12(b)(6) for failure to state a claim on which relief could be
`granted. The district court granted one portion of the motion
`to dismiss: the trademark infringement claim, a judgment
`
`

`
`HILTON v. HALLMARK CARDS
`
`4691
`
`from which Hilton does not appeal. By separate motion, Hall-
`mark moved specially to strike Hilton’s right of publicity
`claim under California’s anti-SLAPP statute.1 In both
`motions, Hallmark raised defenses peculiar to each cause of
`action, some based on the First Amendment to the United
`States Constitution and some not.
`
`The district court denied the remaining portions of the
`motions to dismiss and denied the special motion to strike the
`anti-SLAPP claim. It concluded that the defenses required a
`more fact-intensive inquiry than is permissible at such stage
`of the case. Hallmark timely appeals.
`
`II
`
`Before discussing the merits of this appeal, we must assure
`ourselves that we have jurisdiction over the appeal of denials
`of both motions.
`
`A
`
`[1] As to the special motion to strike, appellate courts gen-
`erally have jurisdiction only over final judgments and orders.
`28 U.S.C. § 1291; Digital Equip. Corp. v. Desktop Direct,
`Inc., 511 U.S. 863, 867-68 (1994). The collateral order doc-
`trine, however, “entitles a party to appeal not only from [ordi-
`nary final judgments] . . . but also from a narrow class of
`decisions that do not terminate the litigation, but must, in the
`interest of achieving a healthy legal system, . . . nonetheless
`be treated as final.” Digital Equip. Corp., 511 U.S. at 867
`(internal citations and quotation marks omitted). We have
`
`1“SLAPP” stands for “strategic lawsuit against public participation.” As
`we discuss further infra, so-called “anti-SLAPP” laws are designed to bar
`meritless lawsuits filed merely to chill someone from exercising his First
`Amendment rights on a matter of public interest. California’s version is
`codified at California Civil Procedure Code § 425.16. The relevant text is
`set out on p. 4696 infra.
`
`

`
`4692
`
`HILTON v. HALLMARK CARDS
`
`held that denials of special motions to strike under Califor-
`nia’s anti-SLAPP statute fall into this narrow class. Batzel v.
`Smith, 333 F.3d 1018, 1024-26 (9th Cir. 2003) (noting that
`anti-SLAPP motions to strike assert a form of immunity from
`suit); but cf. Englert v. MacDonell, 551 F.3d 1099, 1106-07
`(9th Cir. 2009) (holding that the denial of an anti-SLAPP
`motion under then-current Oregon law is not an appealable
`collateral order, while recognizing that the denial of a Califor-
`nia anti-SLAPP motion is). Thus, we are satisfied that we
`have jurisdiction to review the denial of Hallmark’s anti-
`SLAPP motion under the collateral order doctrine.2
`
`B
`
`Denials of motions to dismiss under Rule 12(b)(6) are ordi-
`narily not appealable, even as collateral orders. See Catlin v.
`United States, 324 U.S. 229, 236 (1945). However, we “per-
`mit[ ] the exercise of appellate jurisdiction over otherwise
`non-appealable orders that are ‘inextricably intertwined’ with
`another order that is properly appealable.” Batzel, 333 F.3d at
`1023. This doctrine requires either that “we must decide the
`pendent issue in order to review the claims properly raised on
`interlocutory appeal . . . or [that] resolution of the issue prop-
`erly raised on interlocutory appeal necessarily resolves the
`pendent issue.” Id. (internal quotation marks omitted).
`
`1
`
`We first address whether we have jurisdiction over the
`denial of the motion to dismiss the Lanham Act claim as an
`order inextricably intertwined with the anti-SLAPP motion.
`
`2Applying the familiar framework of Erie R.R. Co. v. Tompkins, 304
`U.S. 64 (1938), and its progeny, we have long held that the anti-SLAPP
`statute applies to state law claims that federal courts hear pursuant to their
`diversity jurisdiction. See United States ex rel. Newsham v. Lockheed Mis-
`siles & Space Co., 190 F.3d 963, 970-73 (9th Cir. 1999).
`
`

`
`HILTON v. HALLMARK CARDS
`
`4693
`
`Hallmark argues that the defenses it raises to Hilton’s Lan-
`ham Act claim are based on some of the same First Amend-
`ment concerns that animate its potential defenses to the
`misappropriation of publicity claim. That may be, but Hall-
`mark only moved to strike the misappropriation of publicity
`claim. Indeed, it could not have moved to strike the Lanham
`Act claim because, as the parties agree, the anti-SLAPP stat-
`ute does not apply to federal law causes of action. See Bulletin
`Displays, LLC v. Regency Outdoor Adver., Inc., 448 F. Supp.
`2d 1172, 1180-82 (C.D. Cal. 2006). A motion to dismiss one
`cause of action is not, ordinarily, inextricably intertwined with
`a motion to strike a different cause of action under Califor-
`nia’s anti-SLAPP law, even if the two claims are doctrinally
`similar.
`
`[2] Because a federal court can only entertain anti-SLAPP
`special motions to strike in connection with state law claims,
`there is no properly appealable order with which the Lanham
`Act claim could be inextricably intertwined. We therefore
`lack jurisdiction to review it.
`
`2
`
`What about the denial of the portions of Hallmark’s motion
`to dismiss pertaining to the misappropriation of publicity
`claim, the same claim that was the target of the anti-SLAPP
`motion?
`
`It is clear that not every motion to dismiss the same claim
`that underlies an anti-SLAPP motion is “inextricably inter-
`twined” with such motion. We have held, for example, that a
`motion to dismiss for lack of personal jurisdiction3 is not inex-
`tricably intertwined with an anti-SLAPP motion. Batzel, 333
`F.3d at 1023. In Zamani v. Carnes, however, we did review
`a motion to dismiss for failure to state a claim under Federal
`
`3Such motions are typically made pursuant to Federal Rule of Civil Pro-
`cedure 12(b)(2).
`
`

`
`4694
`
`HILTON v. HALLMARK CARDS
`
`Rule of Civil Procedure 12(b)(6), which was made as an alter-
`native to an anti-SLAPP special motion to strike the same
`claim. 491 F.3d 990, 994 (9th Cir. 2007). We did it, however,
`without considering whether we had jurisdiction to do it.4
`Zamani does not, therefore, compel us to conclude that a
`motion to dismiss a substantive claim under Rule 12(b)(6) is
`inextricably intertwined with a special motion to strike. See,
`e.g., United States v. Booker, 375 F.3d 508, 514 (7th Cir.
`2004) (“An assumption is not a holding.”). We must consider
`the question for ourselves.
`
`The first type of inextricably intertwined order is one that
`“we must [review] . . . in order to review the claims properly
`raised on interlocutory appeal.” Batzel, 333 F.3d at 1023
`(internal quotation marks omitted). Resolution of a motion to
`dismiss for failure to state a claim is not a predicate to resolv-
`ing an anti-SLAPP motion. As we illustrate in this very opin-
`ion, we can proceed directly to the anti-SLAPP motion
`without any interference from a motion to dismiss.
`
`An order may also be inextricably intertwined with an
`immediately appealable one if “resolution of the issue prop-
`erly raised on interlocutory appeal necessarily resolves the
`pendent issue.” Id. (internal quotation marks omitted). To
`determine whether a motion to dismiss (the pendent issue) is
`inextricably intertwined with an anti-SLAPP motion to strike
`(the issue properly raised) in this sense, we must briefly con-
`sider the inquiry associated with an anti-SLAPP motion.
`
`As we discuss infra, an anti-SLAPP motion requires the
`court to ask, first, whether the suit arises from the defendant’s
`protected conduct and, second, whether the plaintiff has
`shown a probability of success on the merits. If the first ques-
`tion is answered in the negative, then the motion must fail,
`
`4The closest thing to an application of the “inextricably intertwined”
`doctrine we decided involved a motion for reconsideration of the denial
`of the motion to strike or to dismiss. Zamani, 491 F.3d at 994.
`
`

`
`HILTON v. HALLMARK CARDS
`
`4695
`
`even if the plaintiff stated no cognizable claim. Of course, if
`a plaintiff stated no cognizable claim, then the defendant
`would be entitled to dismissal under Rule 12(b)(6). Thus, a
`Rule 12(b)(6) motion to dismiss may succeed where an anti-
`SLAPP motion to strike would not.
`
`The converse is also true. The second stage of the anti-
`SLAPP inquiry determines whether “the complaint is both
`legally sufficient and supported by a sufficient prima facie
`showing of facts to sustain a favorable judgment if the evi-
`dence submitted by the plaintiff is credited.” Integrated
`Healthcare Holdings, Inc. v. Fitzgibbons, 44 Cal. Rptr. 3d
`517, 527 (Ct. App. 2006) (internal quotation marks omitted).
`Such test is similar to the one courts make on summary judg-
`ment, though not identical. Thus, if a plaintiff has stated a
`legal claim but has no facts to support it, a defendant could
`prevail on an anti-SLAPP motion, though he would not have
`been able to win a motion to dismiss.
`
`[3] The foregoing illustrates that neither the denial nor the
`grant of an anti-SLAPP motion “necessarily resolves,” Batzel,
`333 F.3d at 1023, a motion to dismiss regarding the same
`claim. That is, it is possible for an appellate court to hold that
`an anti-SLAPP special motion to strike should be granted or
`denied without thereby dictating the result of a motion to dis-
`miss the same claim under Rule 12(b)(6). Our cases make
`clear that if the properly appealable order can be resolved
`without necessarily resolving the pendent order, then the latter
`is not “inextricably intertwined” with the former. See id. We
`therefore must conclude that we lack jurisdiction to review
`that portion of Hallmark’s Rule 12(b)(6) motion to dismiss
`the right of publicity claim because it is not inextricably inter-
`twined with any properly appealable order.
`
`III
`
`Having weeded out of this appeal matters over which we
`lack jurisdiction, we now address the merits of denial of Hall-
`mark’s special motion to strike the anti-SLAPP claim.
`
`

`
`4696
`
`HILTON v. HALLMARK CARDS
`
`A
`
`California, like some other states, has a statute designed to
`discourage “strategic lawsuits against public participation.”
`SLAPPs “masquerade as ordinary lawsuits but are brought to
`deter common citizens from exercising their political or legal
`rights or to punish them for doing so.” Batzel, 333 F.3d at
`1024 (internal quotation marks omitted). As California’s anti-
`SLAPP statute explains, the state legislature has found there
`to be “a disturbing increase in lawsuits brought primarily to
`chill the valid exercise of the constitutional rights of freedom
`of speech and petition for redress of grievances.” Cal. Civ.
`Proc. Code § 425.16(a). Because “it is in the public interest to
`encourage continued participation in matters of public signifi-
`cance, and [because] this participation should not be chilled
`through abuse of the judicial process,” the anti-SLAPP statute
`is to be construed broadly. Id.
`
`Under the statute,
`
`[a] cause of action against a person arising from any
`act of that person in furtherance of the person’s right
`of petition or free speech under the United States or
`California Constitution in connection with a public
`issue shall be subject to a special motion to strike,
`unless the court determines that the plaintiff has
`established that there is a probability that the plain-
`tiff will prevail on the claim.
`
`Id. § 425.16(b)(1). The phrase “act . . . in furtherance of the
`person’s right of petition or free speech under the United
`States or California Constitution in connection with a public
`issue” is defined by four specific categories of communica-
`tions. Id. § 425.16(e)(1)-(4).5 The relevant one here is the
`
`5Although subsection (e) uses the word “includes,” its four categories
`exhaust the meaning of an act in furtherance of free speech or petitioning
`rights. Navellier v. Sletten, 52 P.3d 703, 708 (Cal. 2002).
`
`

`
`HILTON v. HALLMARK CARDS
`
`4697
`
`fourth, catch-all category: “any other conduct in furtherance
`of the exercise of the constitutional right of petition or the
`constitutional right of free speech in connection with a public
`issue or an issue of public interest.” Id. § 425.16(e)(4).
`
`California courts evaluate a defendant’s anti-SLAPP
`motion in two steps. First, the defendant moving to strike
`must make “a threshold showing . . . that the act or acts of
`which the plaintiff complains were taken ‘in furtherance of
`the [defendant’s] right of petition or free speech under the
`United States or California Constitution in connection with a
`public issue,’ as defined in [subsection (e) of] the statute.”
`Equilon Enters., LLC v. Consumer Cause, Inc., 52 P.3d 685,
`694
`(Cal. 2002)
`(quoting Cal. Civ. Proc. Code
`§ 425.16(b)(1)). Second, “[i]f the court finds that such a
`showing has been made, it must then determine whether the
`plaintiff has demonstrated a probability of prevailing on the
`claim.” Navellier v. Sletten, 52 P.3d 703, 708 (Cal. 2002).
`“Put another way, the plaintiff must demonstrate that the com-
`plaint is both legally sufficient and supported by a sufficient
`prima facie showing of facts to sustain a favorable judgment
`if the evidence submitted by the plaintiff is credited.” Wilson
`v. Parker, Covert & Chidester, 50 P.3d 733, 739 (Cal. 2002)
`(internal quotation marks omitted). “[T]hough the court does
`not weigh the credibility or comparative probative strength of
`competing evidence, it should grant the motion if, as a matter
`of law, the defendant’s evidence supporting the motion
`defeats the plaintiff’s attempt to establish evidentiary support
`for the claim.” Id.; Cal. Civ. Proc. Code § 425.16(b)(2).
`
`1
`
`For Hallmark’s anti-SLAPP motion to succeed, it must
`make its “threshold showing” at step one: “that the act or acts
`of which the plaintiff complains were taken in furtherance of
`the [defendant’s] right of petition or free speech under the
`United States or California Constitution in connection with a
`public issue [or an issue of public interest].” Equilon Enters.,
`
`

`
`4698
`
`HILTON v. HALLMARK CARDS
`
`LLC, 52 P.3d at 694 (internal quotation marks omitted); Cal.
`Civ. Proc. Code § 425.16(e)(4). The exact inquiry at the first
`step is somewhat amorphous, but it seems to contain two dis-
`tinct components.
`
`a
`
`[4] First, the activity the plaintiff is challenging must have
`been conducted “in furtherance” of the exercise of free speech
`rights. By its terms, this language includes not merely actual
`exercises of free speech rights but also conduct that furthers
`such rights. Cal. Civ. Proc. Code § 425.16(e)(4); see also
`Navellier, 52 P.3d at 713 (“The [California] [l]egislature did
`not intend that in order to invoke the special motion to strike
`the defendant must first establish her actions are constitution-
`ally protected under the First Amendment as a matter of
`law.”).
`
`The California Supreme Court has not drawn the outer lim-
`its of activity that furthers the exercise of free speech rights.
`It seems to suffice, however, that the defendant’s activity is
`communicative, cf. Commonwealth Energy Corp. v. Investor
`Data Exch., Inc., 1 Cal. Rptr. 3d 390, 393 n.5 (Ct. App.
`2003), and some courts do not discuss this part of the inquiry
`at all, see, e.g., Integrated Healthcare Holdings, Inc., 44 Cal.
`Rptr. 3d at 522-26 (not discussing whether an email message
`was “in furtherance” of free speech rights). Thus, the courts
`of California have interpreted this piece of the defendant’s
`threshold showing rather loosely. See also Paul for Council
`v. Hanyecz, 102 Cal. Rptr. 2d 864, 870-71 (Ct. App. 2001)
`(holding that campaign money laundering was in furtherance
`of political speech but an invalid exercise of free speech rights
`because it was illegal), overruled on other grounds by Equilon
`Enters. LLC, 52 P.3d at 694 n.5.
`
`[5] One sensible place to start is to determine whether the
`activity in question is “speech” under First Amendment law.
`Here, Hallmark’s card certainly evinces “[a]n intent to convey
`
`

`
`HILTON v. HALLMARK CARDS
`
`4699
`
`a particularized message . . . , and in the surrounding circum-
`stances the likelihood was great that the message would be
`understood by those who viewed it.”6 Spence v. Washington,
`418 U.S. 405, 410-11 (1974) (per curiam) (stating require-
`ment for conduct to qualify as “speech” for purposes of the
`First Amendment). But compare Tenafly Eruv Ass’n, Inc. v.
`Borough of Tenafly, 309 F.3d 144, 158-61 (3d Cir. 2002)
`(concluding that Hurley v. Irish-Am. Gay, Lesbian & Bisexual
`Group of Boston, 515 U.S. 557 (1995) modified the Spence
`standard), with Colacurcio v. City of Kent, 163 F.3d 545, 549
`n.1 (9th Cir. 1998) (reiterating the Spence standard without
`any gloss from Hurley). Whether or not Hallmark must show
`that its card is speech under the Spence test or a modification
`thereof, it certainly suffices that Hallmark can make such a
`showing.
`
`[6] Thus, Hallmark’s card qualifies as speech and falls
`
`6We do recognize a wrinkle in this situation. Namely, Hallmark itself
`does not intend to convey a message; rather, it sells a stylized, ready-made
`message to someone else, who conveys it to the recipient of the card. In
`other words, when you open a birthday card, Hallmark has not wished you
`a happy birthday. It has simply provided the medium for its customer to
`do so. Hilton might have argued that this means Hallmark cannot assert
`a statutory defense derived from the First Amendment because its First
`Amendment rights are not at issue. But she did not make any such argu-
`ment. The closest she came was her contention that the speech at issue is
`commercial speech. We reject such contention infra, at 4700 n.7.
`We do not, therefore, reach this issue. Although it sounds like a ques-
`tion of standing, which is often jurisdictional, it bears closest resemblance
`to the rule against third party standing: a party normally cannot raise
`claims that belong to a third party. See Massey v. Helman, 196 F.3d 727,
`739 (7th Cir. 1999) (listing among the “prudential restrictions” of standing
`“the general rule that a litigant must assert his own legal rights and cannot
`assert the legal rights of a third party”). But that rule involves prudential
`standing, which is not a requirement of jurisdiction. See Allen v. Wright,
`468 U.S. 737, 751 (1984) (describing prudential standing as consisting of
`“several judicially self-imposed limits on the exercise of federal jurisdic-
`tion”). The jurisdictional elements of standing (an injury-in-fact, causa-
`tion, and redressability) are unarguably present here.
`
`

`
`4700
`
`HILTON v. HALLMARK CARDS
`
`comfortably within the universe of types of communication
`that California courts have considered “conduct in furtherance
`of” the exercise of free speech rights upon which to base anti-
`SLAPP motions to strike.
`
`b
`
`Next, Hallmark must show that the sale of its card was “in
`connection with a public issue or an issue of public interest.”
`Cal. Civ. Proc. Code § 425.16(e)(4). Hilton contends that the
`card merely appropriates the waitress role she played on “The
`Simple Life.” She therefore views this lawsuit as a garden
`variety private dispute over who profits from her image.
`According to Hilton, the card implicates no issue of public
`interest because it involves no issue at all, only a celebrity
`who interests many people.7
`
`7Hilton also argues that the birthday card is commercial speech and that
`such speech cannot, as a matter of law, raise a public issue under the anti-
`SLAPP statute. See Scott v. Metabolife Int’l, Inc., 9 Cal. Rptr. 3d 242,
`253-54 (Ct. App. 2004) (“[A] manufacturer’s advertising of a specific con-
`sumer product, on its labels, and to the public, for the purpose of selling
`that product [ ] is not an issue of public interest (or a public issue) . . . .”);
`Cal. Civ. Proc. Code § 425.17(c).
`Regardless of whether the major premise is true, the minor one is false:
`Hallmark’s card is not commercial speech. “[T]he ‘core notion of com-
`mercial speech’ is that it ‘does no more than propose a commercial trans-
`action.’ ” Hoffman v. Capital Cities/ABC, Inc., 255 F.3d 1180, 1184 (9th
`Cir. 2001) (quoting Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 66
`(1983)). As one of our sister circuits has recognized, under this definition,
`“commercial speech is best understood as speech that merely advertises a
`product or service for business purposes.” Cardtoons, L.C. v. Major
`League Baseball Players Ass’n, 95 F.3d 959, 970 (10th Cir. 1996); see
`also Hoffman, 255 F.3d at 1185 (citing commercial speech cases, all of
`which involved advertising); Rezec v. Sony Pictures Entm’t, Inc., 10 Cal.
`Rptr. 3d 333, 337-38 (Ct. App. 2004). Hallmark’s card is not advertising
`the product; it is the product. It is sold for a profit, but that does not make
`it commercial speech for First Amendment purposes. See Va. State Bd. of
`Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 761
`(1976).
`
`

`
`HILTON v. HALLMARK CARDS
`
`4701
`
`i
`
`Sitting in diversity, we must begin with the pronounce-
`ments of the state’s highest court, which bind us. See Ariz.
`Elec. Power Coop., Inc v. Berkeley, 59 F.3d 988, 991 (9th Cir.
`1995). The California Supreme Court has not clearly estab-
`lished what constitutes an issue of public interest, but it has
`provided some guidance. First, “[n]othing in the statute itself
`categorically excludes any particular type of action from its
`operation.” Navellier, 52 P.3d at 711. Indeed, “[t]he anti-
`SLAPP statute’s definitional focus is not the form of the
`plaintiff’s cause of action but, rather, the defendant’s activity
`that gives rise to his or her asserted liability.” Id. (emphasis
`omitted). Thus, the particular cause of action Hilton has
`brought is irrelevant to our decision. Ordinary commercial
`causes of action like breaches of contract, see generally
`Navellier, 52 P.3d 703, or indeed misappropriation of public-
`ity, can be “strategic lawsuit[s] against public participation”
`as much as defamation can be, id. at 706.
`
`Second, the California Supreme Court has “declined to
`hold that [the anti-SLAPP statute] does not apply to events
`that transpire between private individuals.” Id. at 710 (internal
`quotation marks omitted). That neither Hilton nor Hallmark
`are public officials, therefore, cannot be dispositive. Further-
`more, the court has “explicitly rejected the assertion that the
`only activities qualifying for statutory protection are those
`which meet the lofty standard of pertaining to the heart of
`self-government.” Id. (internal quotation marks omitted).
`Thus, the activity of the defendant need not involve questions
`of civic concern; social or even low-brow topics may suffice.
`
`The question before us is whether the topic, the issue, can
`be a celebrity like Paris Hilton, or whether, as Hilton agues,
`it must be the subject of some defined debate.
`
`In interpreting the anti-SLAPP statute, the California
`Supreme Court has insisted on its language, including its pre-
`
`

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`4702
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`HILTON v. HALLMARK CARDS
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`amble. See Equilon Enters., 52 P.3d at 688 (“When on previ-
`ous occasions we have construed the anti-SLAPP statute, we
`have done so strictly by its terms . . . .”); id. at 689 n.3 (dis-
`cussing the addition of the “broadly construed” language to
`the statutory preamble as a correction of prior judicial deci-
`sions adopting narrowing constructions); Navellier, 52 P.3d at
`711 (rejecting a narrowing construction of the statute because
`it “would contravene the Legislature’s express command that
`section 425.16 ‘shall be construed broadly’ ” (quoting Cal.
`Civ. Proc. Code § 425.16(a))); see also Briggs v. Eden Coun-
`cil for Hope & Opportunity, 969 P.2d 564, 568-73 (Cal. 1999)
`(construing plain language of the statute in light of the pream-
`ble).
`
`[7] That preamble declares it to be “in the public interest”
`of the state of California “to encourage continued participa-
`tion in matters of public significance . . . . To this end, this
`section shall be construed broadly.” Cal. Civ. Proc. Code
`§ 425.16(a). The California Supreme Court has defined “sig-
`nificance” to mean “importance” or “consequence.” Briggs,
`969 P.2d at 571-72. Thus, we must construe “public issue or
`issue of public interest” in section 425.16(e)(4) broadly in
`light of the statute’s stated purpose to encourage participation
`in matters of public importance or consequence.
`
`[8] Understood this way, the statute does not appear to
`favor a construction limiting the meaning of “issue” to a sub-
`ject of a specific debate. However, we need not rest on the
`implications of the California Supreme Court and the statute,
`which do not definitively answer the question, “because we
`have guidance from the [California] Court of Appeals.”
`Batlan v. Bledsoe (In re Bledsoe), 569 F.3d 1106, 1110 (9th
`Cir. 2009).
`
`ii
`
`[9] The California intermediate appellate courts have
`developed multiple tests to determine whether a defendant’s
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`HILTON v. HALLMARK CARDS
`
`4703
`
`activity is in connection with a public issue. One commonly
`cited test comes from Rivero v. American Federation of State,
`County, & Municipal Employees, 130 Cal. Rptr. 2d 81, 89-90
`(Ct. App. 2003) (concluding that the plaintiff’s supervision of
`eight individuals was not a matter of public interest, where
`people involved had “received no public attention or media
`coverage”). There, the Court of Appeal for the First District
`surveyed the appellate cases and divined from them three cat-
`egories of public issues: (1) statements “concern[ing] a person
`or entity in the public eye”; (2) “conduct that could directly
`affect a large number of people beyond the direct partici-
`pants”; (3) “or a topic of widespread, public interest.” Id. at
`89. The Fourth District has followed this approach. See, e.g.,
`Commonwealth Energy Corp., 1 Cal. Rptr. 3d at 394-95
`(describing Rivero as the first systematic treatment of the
`“public issue—public interest aspect of the anti-SLAPP stat-
`ute”).
`
`[10] By contrast, Weinberg v. Feisel, a case from the Third
`District, articulated a somewhat more restrictive test, designed
`to distinguish between issues of “public, rather than merely
`private, interest.” 2 Cal. Rptr. 3d 385, 392 (Ct. App. 2003).
`
`First, “public interest” does not equate with mere
`curiosity. Second, a matter of public interest should
`be something of concern to a substantial number of
`people. Thus, a matter of concern to the speaker and
`a relatively small, specific audience is not a matter
`of public interest. Third, there should be some
`degree of closeness between the challenged state-
`ments and the asserted public interest; the assertion
`of a broad and amorphous public interest is not suffi-
`cient. Fourth, the focus of the speaker’s conduct
`should be the public interest rather than a mere effort
`to gather ammunition for another round of private
`controversy. Finally, . . . [a] person cannot turn oth-
`erwise private information into a matter of public
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`4704
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`HILTON v. HALLMARK CARDS
`
`interest simply by communicating it to a large num-
`ber of people.
`
`Id. at 392-93 (internal quotation marks, citations, and alter-
`ation omitted).
`
`iii
`
`Although these approaches do not precisely overlap, we
`need not decide between them, because Hallmark’s birthday
`card satisfies both tests.
`
`Hallmark’s card falls into either the first or third categories
`that Rivero outlined: statements “concern[ing] a person or
`entity in the public eye”; “or a topic of widespread, public
`interest,” 130 Cal. Rptr. 2d at 89, respectively. There is no
`dispute that Hilton is a person “in the public eye” and “a topic
`of widespread, public interest,” and that she was such well
`before this controversy.8 Thus, Hallmark’s card is “in connec-
`tion with a public issue or an issue of public interest,” Cal.
`Civ. Proc. Code § 425.16(e)(4), under Rivero.
`
`Although the application of the Weinberg test presents a
`closer call, we conclude it comes to the same result.9 Again,
`there is no dispute that Paris Hilton’s career is “something of
`concern to a substantial number of people,” Weinberg, 2 Cal.
`Rptr. 2d at 392. The connection “between the challenged
`statements”—the birthday card—“and the asserted public
`interest”—Hilton’s life, image, and catchphrase—is direct. Id.
`After all, the card concerns Hilton’s persona. There was no
`
`8In her papers before the district court, Hilton recognized that she is a
`“public figure and a subject of public interest,” with “widespread public
`recognition.”
`9One might read Weinberg, a defamation case, as having articulated a
`test particular to the defamation cause of action. Because our application
`of Weinberg is not decisive here, we do not reach this question, which nei-
`ther of the parties raised.
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`

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`HILTON v. HALLMARK CARDS
`
`4705
`
`pre-existing controversy between Hallmark and Hilton, so the
`fourth and fifth considerations that the Weinberg court consid-
`ered are inapposite. See id. at 392-93.
`
`Weinberg does caution, however, that “ ‘public interest’
`does not equate with mere curiosity.” Id. at 392 (citing Time,
`Inc. v. Firestone, 424 U.S. 448, 454-55 (1976)). However,
`this warning comes in the context of Weinberg’s insistence
`that courts apply the anti-SLAPP statute only to public, not to
`private matters. Thus, Weinberg elaborated that “a ‘public
`controversy’ does not equate with any controversy of interest
`to th