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 atsciencebasedmedicine.org. 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 (skepticsguide.net), 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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