Doctor’s evaluation of another doctor’s treatment isn’t commercial speech

Tobinick v. Novella, No. 15-14889 (11th Cir. Feb. 15, 2017)
Ultimately, despite a long battle, this is a relatively easy
case about “the medical viability of a novel use for a particular drug.”  Dr. Tobinick (plaintiff, along with related
entities) thinks his “unorthodox use for the drug etanercept” can be used to
treat spinal pain, post-stroke neurological dysfunctions, and Alzheimer’s
disease, though it isn’t FDA-approved for those conditions.  Dr. Novella, a neurologist, blogs about
various topics.  In response to an
article in the LA Times about Dr Tobinick’s novel treatments, Dr. Novella
discussed the Los Angeles Time article, the typical characteristics of “quack
clinics” or “dubious health clinics,” the key features of Dr. Tobinick’s
clinic, and lastly the plausibility of and the evidence supporting Dr.
Tobinick’s allegedly effective use of etanercept.
Dr. Novella also quoted a portion of the LAT article, which
reported that “[Dr. Tobinick’s] claims about the back treatment led to an
investigation by the California Medical Board, which placed him on probation
for unprofessional conduct and made him take classes in prescribing practices
and ethics.” A second article, filed after Dr. Tobinick filed his initial
complaint, detailed the lawsuit and provided Dr. Novella’s view that the
lawsuit was designed to silence his public criticism of Dr. Tobinick’s
practices, which he then restated in large part.   He
again mentioned the Medical Board of California (MBC)’s investigation,
explained that the MBC “filed an accusation in 2004, amended in 2005 and 2006,”
and listed the different allegations made in the 2004 Accusation. 
Tobinick’s claims were based on state law and the Lanham
Act.  As relevant here, the district
court granted Dr. Novella’s special motion to strike state law claims, applying
California’s anti-SLAPP law. The court of appeals affirmed, accepting that Dr.
Tobinick was a limited public figure, and agreeing that he hadn’t produced
evidence of actual malice that would allow a probability of prevailing.
California applies a subjective test in which “[t]here must
be sufficient evidence to permit the conclusion that the defendant in fact
entertained serious doubts as to the truth of his publication.”  Relevant factors include “[a] failure to
investigate, anger and hostility toward the plaintiff, [and] reliance upon
sources known to be unreliable or known to be biased.”  Tobinick primarily argued that Dr. Novella improperly
relied on the MBC’s 2004 Accusation, which had been superseded by a 2006 Second
Amended Accusation, and that the articles contained false statements such as
that Dr. Tobinick ran a “one-man institute.” However, Tobinick’s evidence was
insufficient to allow a reasonable jury to conclude that Dr. Novella had
serious doubts as to the truth of the content contained in his two articles.  For one thing, the evidence showed that Dr.
Novella consulted the 2006 accusation, and even referenced competing studies
(which themselves were referenced in a 2007 MBC decision with a stipulated settlement)
in his second article, admitting that “[t]here are small studies for disc
herniation showing conflicting results.” 
Alleged falsities and inconsistencies didn’t demonstrate
actual malice—awareness or recklessness as to falsity.  Indeed, Tobinick couldn’t show that many of
Dr. Novella’s statements were false. For example, Dr. Novella characterized
Florida—one of the states in which Tobinick worked—as a “very quack-friendly
state,” but this was plainly opinion. 
Other details in the articles didn’t go to their essential criticism of
Dr. Tobinick’s medical practices, and at most could show negligence.  For example, Tobinick argued that Dr. Novella
falsely implied that Tobinick’s clinics committed health fraud by putting the
first article into a website category labeled “Health Fraud,” but the article
itself never said Tobinick committed health fraud, and there was no evidence
that Dr. Novella decided what category to put the article into.  Also, as to the “one-man institute” phrase,
Tobinick failed to rebut Dr. Novella’s statement that he looked at Tobinick’s
websites and saw that the only physician named and profiled on the websites was
Tobinick.  “Dr. Novella’s statement is
reasonably held, as the name of Dr. Tobinick’s California clinic, ‘Edward Lewis
Tobinick, MD,’ further supports his belief that ‘Dr. Tobinick was a solo
practicioner[.]’”
The court noted that, although “[t]he failure to conduct a
thorough and objective investigation, standing alone, does not prove actual
malice,” the evidence of Dr. Novella’s investigation, “in which he looked to trustworthy
sources, demonstrates his lack of subjective belief that the articles contained
false statements.”  Before he wrote, Dr.
Novella consulted the LA Times article, many of Dr. Tobinick’s case studies,
the MBC’s accusations, and Tobinick’s websites. 
The Lanham Act claims then failed because the articles
weren’t commercial speech.  They weren’t
core solicitations, nor did they satisfy the Bolger test for non-core commercial speech. The articles weren’t
ads, nor could they reasonably construed as such. The first didn’t mention Dr. Novella’s
practice or medical services; the second did so only in providing context for
Dr. Novella’s criticism of the lawsuit as an attempt to suppress Dr. Novella’s critiques.
Indeed, Dr. Novella clarified that he primarily treats headaches, “thereby
distancing the types of medical services he provides from the services marketed
by Dr. Tobinick.”  The articles didn’t
discuss any products Dr. Novella sold, nor did they tout his practice.  References to the treatments Tobinick sold
weren’t themselves sufficient to make the speech commercial—Gordon & Breach held that product
reviews aren’t commercial speech, and so too here, even though the seller of
the reviewed product could convert the review into commercial speech by using
the review to advertise the product.  Dr.
Novella’s discussion “resemble[d] a medical peer review of a treatment’s
viability.”

Finally, Tobinick didn’t show economic motivation for the
speech sufficient to make it commercial. 
It didn’t matter whether the websites on which the speech appeared were
profit-seeking.  Tobinick’s complex
theory about how profits were “funnelled” from website-related revenue sources
to Dr. Novella “relies on such a level of attenuation that it fails to
demonstrate economic motivation in the commercial speech context.”  In World Wrestling Federation Entertainment,
Inc. v. Bozell, 142 F. Supp. 2d 514 (S.D.N.Y. 2001), the district court held
that the WWF could use the Lanham Act to sue a “concerned parents” council over
a public attack campaign about violence in wrestling, because the council
featured the attacks “prominently in a fundraising video,” in “fundraising
letters,” and in order “to raise the profile of [the council].”  None of that was true here.  The court of appeals also emphasized that “neither
the placement of the articles next to revenue-generating advertising nor the
ability of a reader to pay for a website subscription would be sufficient in
this case to show a liability-causing economic motivation for Dr. Novella’s
informative articles.” Those are standard features of magazines and
newspapers.  “Even if Dr. Novella
receives some profit for his quasi- journalistic endeavors as a scientific
skeptic, the articles themselves, which never propose a commercial transaction,
are not commercial speech simply because extraneous advertisements and links
for memberships may generate revenue.”

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