A three-judge panel ruled on Thursday that Richard Simmons can pursue a lawsuit against the owners of In Touch Weekly for allegedly hiring an investigator to put a tracking device on his car.

A device was discovered on Simmons’ driver’s car in 2017. It was traced to Scott Brian Mathews, a private investigator who had been hired a few months earlier by In Touch Weekly to cover Simmons’ visit to the hospital. Mathews was charged and ultimately pleaded no contest to placing the device, and was sentenced to probation.

Simmons sued Mathews and Bauer Media, which owned In Touch Weekly at the time, for invasion of privacy and other causes of action.

Bauer filed a motion to strike the complaint under the California anti-SLAPP law, arguing that In Touch Weekly hired Mathews only to take photographs, and did not know anything about the tracking device. The judge denied the motion, and Bauer appealed.

On Thursday, the 2nd District Court of Appeal upheld the judge’s ruling, finding that the First Amendment does not protect Bauer from Simmons’ suit.

“We conclude Bauer failed to demonstrate the conduct at the heart of the lawsuit — the unlawful use of the tracking device — is, as Bauer contends, ‘conduct in furtherance of its exercise of the right of free speech in connection with issues of public,'” wrote Justice Brian Currey, for the panel. “We therefore affirm the denial of Bauer’s anti-SLAPP motion.”

Bauer had argued that Simmons’ allegations were rooted in In Touch Media’s news-gathering activity. The company pointed to a 2003 case in which a doctor sued KCOP-TV for surreptitiously recording him for a story about overprescription of pain-killers. In that case, the appeals court held that KCOP’s actions were in furtherance of its free speech rights.

But the court in the Simmons case called that a “red herring” because Bauer denied having anything to do with placing the tracking device.

The court also cited a 2006 California Supreme Court ruling involving the alleged extortion of dancer Michael Flatley, in which the court held that the anti-SLAPP statute does not protect illegal conduct.

“Because Bauer’s alleged conduct in the first amended complaint falls outside the protections of the First Amendment and the bounds of section 426.15, the trial court properly denied the anti-SLAPP motion,” the court ruled.

The case will now proceed at the trial court, and a jury may ultimately have to decide whether Bauer was responsible or not for the investigator’s conduct.