Speech in study would be commercial if knowingly false, court rules

Crossfit, Inc. v. National Strength & Conditioning Ass’n, 2016 WL 5118530,  No. 14cv1191 (S.D. Cal. Sept. 21, 2016)

CrossFit generates revenue by credentialing and certifying fitness trainers for a fee and through licensing the CrossFit trademark and other intellectual property to affiliate gyms. The NSCA is a nonprofit corporation that is “dedicated to the educational and professional exchange of ideas in the areas of strength development, athletic performance, and fitness.” It offers educational publications and also certifies fitness professionals for a fee. One of the NSCA’s publications is its “flagship journal,” the Journal of Strength and Conditioning Research (JSCR).

In November 2013, the JSCR published “Crossfit-based high intensity power training improves maximal aerobic fitness and body composition.” Though much of the article praised CrossFit’s effectiveness, one passage says:

Out of the original 54 participants, a total of 43 (23 males, 20 females) fully completed the training program and returned for follow up testing. Of the 11 subjects who dropped out of the training program, two cited time concerns with the remaining nine subjects (16% of total recruited subjects) citing overuse or injury for failing to complete the program and finish follow up testing.

Revisiting the point, the article says, “[a] unique concern with any high intensity training programs such as HIPT or other similar programs is the risk of overuse injury. In spite of a deliberate periodization and supervision of our Crossfit-based training program by certified fitness professionals, a notable percentage of our subjects (16%) did not complete the training program and return for follow-up testing.”  The study received attention in social media outlets and from news media.

CrossFit identified the individuals who purportedly did not complete the study because of “overuse or injury,” and many of these individuals provided declarations explaining their actual reasons for not completing the challenge, which weren’t based on overuse or injury. The initial manuscript submitted to the JSCR did not include any injury data, and the study’s author said that he only included them after “the peer reviewers and JSCR editors requested information about why 11 participants failed to test out.” CrossFit argued that the inclusion of these data at the JSCR editorial staff’s direction was evidence of the NSCA’s desire to “manufacture a ‘scientific’ study concluding CrossFit training was unsafe.” JSCR’s Managing Editor wrote: “You also need to caution readers as to the context of your findings due to the fact many people do get injured doing these types of workouts,” directing the study’s author to another study finding CrossFit to be dangerous, authored by the Managing Editor himself.

The JSCR published an erratum stating:

After the article was published, 10 of the 11 participants who did not complete the study have provided their reasons for not finishing, with only 2 mentioning injury or health conditions that prevented them from completing follow-up testing. In light of this information, injury rate should not be considered a factor in this study. This change does not affect the overall conclusion of the article.

CrossFit submitted a consumer survey on materiality. Some participants saw the original statement reporting a 16% injury rate and others saw a modified version with the language “CrossFit’s programs injury rates are very much in line with injury rates for the physical fitness industry as a whole.” Respondents exposed to the former “[w[ere 2.4 times as likely to rate CrossFit training as dangerous,” and were “twice as unlikely to say they would purchase a 12 month trial membership for CrossFit training.”

The court granted summary judgment on literal falsity, though other elements of CrossFit’s claims remained.  In particular, the NSCA argued that the journal article was noncommercial speech fully protected by the First Amendment and not subject to the Lanham Act.

The court noted that speech can be commercial even when it contains “discussions of important public issues.” Further, courts must be particularly careful when reviewing causes of action directed toward academic works, “because academic freedom is ‘a special concern of the First Amendment.’ “ ONY, Inc. v. Cornerstone Therapeutics, Inc., 720 F.3d 490 (2d Cir. 2013).  However, ONY was careful to limit its scope to cases in which “a speaker or author draws conclusions from non-fraudulent data, based on accurate descriptions of the data and methodology underlying those conclusions, on subjects about which there is legitimate ongoing scientific disagreement.”  ONY noted that “it is relevant that plaintiff does not allege that the data presented in the article were fabricated or fraudulently created.”  Query: Why does falsity of data bear on the classification of the article as commercial or noncommercial speech?  ONY actually doesn’t present itself as a commercial speech case—defendants were allowed to make their claims, as long as they were accurate descriptions of the data and methodology, in classic ads too.  Nonetheless, the court here held:

a reasonable fact finder could conclude that the NSCA fabricated the injury data and published them in the JSCR knowing they were false with the intention of protecting its market share in the fitness industry and diminishing the burgeoning popularity of the CrossFit program. If the trier of fact were to draw that conclusion from the evidence, the injury data would be commercial speech.

Analytically speaking, this puts the cart before the horse—you only know if it’s commercial speech once you know it’s false.  (Next query: what if this wasn’t knowing falsity, just falsity, which is generally sufficient under the Lanham Act and which the court has already found to exist?  Why would state of mind be relevant to whether this is commercial speech?)  It might be a reasonable practical compromise, however, especially given that I’m no great fan of ONY.

The court here continued that the paper as a whole was far more than a proposed commercial transaction, “but the excerpts based on potentially fabricated data about a competitor’s product may nonetheless be commercial speech.” A reasonable fact finder

could conclude that the NSCA pressured the authors to include data disparaging CrossFit’s exercise regimen, and the editor-in-chief’s admonition—“[r]emember the paper can still be rejected if the reviewers are not impressed with the sophistication of the revisions made”—could be construed as a veiled threat that the JSCR would not be interested in publishing the Devor Study if it did not include information showing “the fact many people do get injured doing these types of workouts,” whether or not that “fact” was true in this qualitative study.

However, a reasonable factfinder could also conclude that “the editor-in-chief was simply bringing his knowledge of the fitness industry to bear and sincerely believed (or for that matter still believes) that CrossFit has a high injury rate, as opposed to an attempt to denigrate CrossFit for the NSCA’s benefit.”

Under the Bolger factors, the study didn’t explicitly promote the NSCA’s products or services, and wasn’t typical advertising content. The factor dealing with reference to a specific product, though typically geared to self-promotion, could also apply to disparagement of another’s product, especially given that the Lanham Act explicitly reaches such disparagement.  And NSCA had an economic motive for publishing the data.  Nor were the noncommercial elements of the study inextricably intertwined with commercial speech:

[A]ssuming the injury data were false and injected into the article to deride CrossFit’s product, it would have been easy enough to publish an article with data that were not made up, and one could easily imagine the Devor Study without the statements premised on these false data. In fact, the Erratum shows that the parts of the article that may constitute commercial speech are not inextricably intertwined with the remainder of the article.

The court also allowed California FAL and trade libel claims to proceed.  Though trade libel usually requires a showing of special damages, some cases have allowed plaintiffs to show instead a “general loss of custom[ers],” by “showing an established business, the amount of sales for a substantial period preceding the publication, the amount of sales subsequent to the publication, [and] facts showing that such loss in sales were the natural and probable result of such publication.”  CrossFit might be able to satisfy that standard.