Friday, March 20, 2015

commercial advertising or promotion post-Lexmark

Tobinick v. Novella, No. 9:14–CV–80781, 2015 WL 1191267 (S.D. Fla. Mar. 16, 2015)
Steven Novella wrote two articles criticizing the practice of Edward Tobinick, “a doctor who provides medical treatment to patients with ‘unmet medical needs’ via two institutes—‘Edward Lewis Tobinick M.D.,’ a California medical corporation, and ‘INR PLLC,’ a Florida professional limited liability company—both doing business as the ‘Institute of Neurological Recovery.’” Novella published the first article, “Enbrel for Stroke and Alzheimer’s”, on May 8, 2013 in response to a piece published in the Los Angeles Times. As Novella described it,
The [Times] story revolves around Dr. Edward Tobinick and his practice of perispinal etanercept (Enbrel) for a long and apparently growing list of conditions. Enbrel is an FDA-approved drug for the treatment of severe rheumatoid arthritis. It works by inhibiting tumor necrosis factor (TNF), which is a group of cytokines that are part of the immune system and cause cell death. Enbrel, therefore, can be a powerful anti-inflammatory drug. Tobinick is using Enbrel for many off-label indications, one of which is Alzheimer’s disease (the focus of the LA Times story).
“The allegedly false statements in the first article concern the viability of Plaintiff Tobinick’s treatments, the scientific literature discussing those treatments, the size and locations of Plaintiff Tobinick’s Institutes, and, by implication, the categorization of Plaintiff Tobinick’s practice as ‘health fraud.’” Novella published the second article, “Another Lawsuit To Suppress Legitimate Criticism—This Time SBM” on July 23, 2014, after plaintiffs sued. It mostly restated the content of the first article, though plaintiffs also alleged that it was false and misleading to say that “there have been no double-blind placebo-controlled clinical trials of the treatment provided by the Plaintiffs.”
Plaintiffs sued Novella as well as the Society for Science-Based Medicine, whose responsibility for the articles was “far from clear.”  The articles weren’t posted on the Society’s website, though there’s a link to the first article on its wiki.  The articles were and remained posted on the Science-Based Medicine blog (SBM blog).  Novella was involved both with the blog and the Society, as “Founder and Executive Editor” of the blog, and as a Board member and Officer of the Society. Plaintiffs argued that the SBM Blog was part of the Society’s structure and internet presence, such that the Society should be liable for the content of the articles.
Plaintiffs sued for violations of the Lanham Act/unfair competition, trade libel, and libel.
Treating the defendants’ motion as a motion for summary judgment, the court found that the Lanham Act claims against the Society had to fail as the blog posts weren’t “commercial advertising or promotion,” at least with respect to the Society, and that the libel claims had to be dismissed without prejudice because plaintiffs failed to provide the requisite pre-suit notice, but that it couldn’t yet be determined whether §230 barred the libel claims against the Society.
The Society is a §503(c)(3) nonprofit with an educational mission promoting “the concept of science-based medicine—that all health care practices and products need to be rooted in a single, science-based standard of care, delivered within a consistent framework of scientific standards.” It has a “Donate” button on its homepage, and there are both free and paid memberships.  It has a web store with links to purchase eBooks comprised of compiled SBM Blog posts; the eBooks are free with Society membership.
The evidence that the Society was responsible for the blog consisted primarily of various statements made by Board members and Officers of the Society, as well as the Society itself, that the SBM Blog is one of two blogs “for the [S]ociety.” There was notable cross-membership, and the two websites supported and encouraged cross-traffic by linking to each other and by offering the “Science–Based Medicine” eBooks. However, there were also distinctions: the SBM blog predated the Society by at least five years; donations made to the SBM Blog do not go to the Society but rather to the New England Skeptical Society; and the Society stated that Novella published the articles without the Society’s knowledge, consent, or participation.  The relationship between the Society and the SBM blog was a material fact that precluded resolution of the CDA immunity argument.   
However, no reasonable jury could find that the allegedly false/defamatory statements constituted commercial speech as to the Society. The Eleventh Circuit uses the Gordon & Breach test for “commercial advertising or promotion,” except that, after Lexmark, the requirement that the parties be competitors is apparently abrogated.  That leaves (1) commercial speech (3) for the purpose of influencing consumers to buy defendant’s goods or services that are (4) disseminated sufficiently to the relevant purchasing public to constitute “advertising” or “promotion” within that industry.
To evaluate “commercial speech,” we turn to the First Amendment test. Core commercial speech does no more than propose a commercial transaction.  But more broadly, commercial speech is assessed by whether it is in the form of an ad, whether it refers to specific products sold by the defendant, and whether the defendant had an economic motivation for the speech. Plaintiffs argued that the science-based medicine movement was an economic enterprise, making the speech commercial, as did the sale of eBooks and memberships, along with the acceptance of donations.
Nope. Neither article proposed a commercial transaction.  They were not “expression related solely to the economic interests of the speaker and its audience,” but instead “clearly state their intent to raise public awareness about issues pertaining to Plaintiffs’ treatments, a goal in line with the Society’s educational mission.” They did discuss the price of the treatments, but that didn’t make them relate “solely” to the economic interests of the speaker and the audience.  In Bolger, by contrast, the materials found to be commercial speech used an ongoing public debate to advertise the defendant’s own products, which were referenced in the informational pamphlets the defendant distributed, and the defendant conceded that the pamphlets were ads.
Here, “[t]he Society published articles questioning the viability of Plaintiffs’ medical practices and the scientific rigor of their research. The only ‘products’ referenced within the first article are Plaintiffs’ own treatments; no competitors’ products—let alone products offered for sale by the Society—are cited in the articles.”  Novella’s medical practice and the drugs he used appeared in the second article “only to illustrate Novella’s belief that he and Plaintiffs are not competitors.”  This was explicitly a response to the lawsuit, not an independent plug for Novella’s practice—which, the court noted, was not the Society’s practice.
Furthermore, the Society was a nonprofit:
Like nearly every not-for-profit corporation, it seeks to support itself by soliciting donations and offering products for sale. That does not render its speech commercial, particularly where, as here, there is nothing in the record to indicate that the articles containing the allegedly false and/or defamatory statements do not remain free to view online. The articles simply do not constitute commercial speech, at least with respect to the Society.
Florida requires pre-suit notice of libel claims to media defendants, which was not properly given here.  To determine whether the Society was a media defendant, the court asked whether it engaged “in the traditional function of the news media,” which is “to initiate ‘uninhibited, robust, and wide-open debate on public issues.’” Media defendants are not just those who “impartially disseminate information,” or “issue unsolicited, disinterested and neutral commentary as to matters of public interest,” but includes those who “editorialize as to matters of public interest without being commissioned to do so by [their] clients.” The Society’s stated mission of educating the public qualified it as a media defendant, since there was no evidence that any of the allegedly false and/or defamatory statements were commissioned by clients. Dismissed with leave to refile.

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