acrimony among right-wing pundits isn’t commercial advertising or promotion

Corsi v. InfoWars, LLC, 2021 WL 2115272, No. A-20-CV-298-LY
(W.D. Tex. May 25, 2021) (R&R)

This is a defamation case with a Lanham Act chunk. The
parties are various right-wing public figures. Plaintiffs alleged that, in
InfoWars videos, Alex Jones made false claims that Corsi “seemed to be
extremely mentally degraded to the point of … dementia,” had a stroke, and
does not tell the truth, and Roger Stone falsely stated that Corsi was fired
from a prior job, is an alcoholic, often lies, is willing to perjure himself,
and is a “deep state” operative and a “fraud” who seeks to make political
conservatives look bad. Stone also allegedly attacked plaintiff Larry Klayman’s
reputation, stating that Klayman “could be the single worst lawyer in America,”
has “never actually won a courtroom victory in his life,” and is an “idiot” and
an “egomaniac.”

Plaintiffs alleged that they were competitors of defendants
“as conservative media personalities, broadcasters, authors and columnists on
social media and elsewhere.”

Dealing only with the Lanham Act claims: Plaintiffs’ alleged
injuries didn’t fall within the Lanham Act’s zone of interests. As other courts
have held, “[t]he mere fact that the parties may compete in the marketplace of
ideas is not sufficient to invoke the Lanham Act.” This was not commercial
advertising or promotion, but rather “expressions of opinions as commentary
during a radio show.” (Is failure of the defendant to engage in commercial
advertising or promotion really the same thing as failure of the plaintiff to
allege that it falls within the statute’s zone of interests? Doesn’t matter a
lot, but the court does seem to conflate them.)

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