Monday, November 09, 2015

Why we need an anti-SLAPP law: skeptic's articles still not commercial speech

Tobinick v. Novella, No. 9:14–CV–80781, 2015 WL 6777458 (S.D. Fla. Sept. 30, 2015)
This case is a good example of the need for a federal anti-SLAPP statute.  Although many claims have been dismissed, the court here finally resolved Lanham Act false advertising/state law unfair competition claims against Dr. Steven Novella, who wrote two articles published online Both articles address the practice of Dr. Edward Tobinick, who provides medical treatment to patients with “unmet medical needs.”  The first article, “Enbrel for Stroke and Alzheimer’s,” responded 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. …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 concerned the viability of Tobinick’s treatments, the scientific literature discussing those treatments, the size and locations of Tobinick’s businesses, and the categorization of Tobinick’s practice as “health fraud.” Novella’s second article, “Another Lawsuit To Suppress Legitimate Criticism – This Time SBM,” came out after Novella first sued. It largely restated the content of the first, and also said Novella couldn’t find double-blind placebo-controlled clinical trials for the treatment provided by Tobinick.
Gordon & Breach supplies the test for what’s commercial advertising or promotion, but post-Lexmark, it’s minus the commercial competition prong.  So: (1) commercial speech; (2) for the purpose of influencing consumers to buy defendant’s goods or services; (3) disseminated sufficiently to the relevant purchasing public to constitute “advertising” or “promotion” within that industry.
“Commercial speech” was dispositive here. Central Hudson described commercial speech as “expression related solely to the economic interests of the speaker and its audience.” Bolger “suggest[s] certain guideposts for classifying speech that contains both commercial and noncommercial elements; relevant considerations include whether: (1) the speech is an advertisement; (2) the speech refers to a specific product; and (3) the speaker has an economic motivation for the speech.”   
The articles here proposed no commercial transaction, and weren’t related solely to the economic interests of the speaker and its audience. They clearly intended to raise public awareness about issues pertaining to Tobinick’s treatments.  They were also unlike the commercial speech in Bolger: they were not concededly advertisements; the only products referenced were Tobinick’s treatments; to the extent the second article referred to Novella’s practice, “it is in direct response to the instant litigation as opposed to an independent plug for that practice.” 
Finally, the court didn’t find that the alleged “economic motivation” for the speech was sufficient, even though SGU Productions, a for-profit company controlled by Novella, earns money by selling advertisements on its website (, advertisements in a podcast, memberships, and goods such as t-shirts.  Speech isn’t commercial speech just because it’s sold for profit.  Plus, the specific evidence here didn’t point to a strong economic motive for the speech: there was no evidence that Novella earned any money from SGU, whose goal was “to educate people in science and critical thinking.”
The state law claims fell because the Lanham Act claims did.
The court has already denied a fee request in another iteration of this case, which seems odd to me, but that just highlights the insufficiency of speech protections for critics under current law.

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