Tobinick v. Novella 142 F Supp. 3d 1275 (S.D. Fla 2015)
Most recent action
On October 6, 2017, Dr. Steven Novella filed a reply brief arguing that the Supreme Court should deny Dr. Edward Tobinick’s petition for certiorari. Tobinick is arguing that the Eleventh Circuit Court of Appeals erred in ruling against him denying his Lanham Act and state unfair competition claims. On April 6, 2017, the Eleventh Circuit denied Tobinick’s motion for rehearing en banc.
Media Coalition Foundation and Media Coalition members joined an amicus brief written by the Association of American Publishers in the Eleventh Circuit. [See below for a summary of the brief.]
Background and Summary
Dr. Tobinick sued Dr. Novella, a professor at Yale University Medical School, for false statements under the Lanham Act and state unfair competition laws over posts on Novella’s blog that are critical of medical treatments Tobinick provides. On his website “Science Based Medicine,” Novella called Tobinick’s Institute of Neurological Recovery, a “quack clinic,” and criticized Tobinick’s unconventional medical treatments for Alzheimer’s disease and strokes. Tobinick is arguing that Novella’s blog posts are commercial speech subject to the Lanham Act and state unfair competition laws because Novella engages in commerce on his website by generating revenue from advertisements and sale of memberships and merchandise. The Lanham Act is a federal statute that makes it illegal for a commercial competitor to make false or misleading descriptions of fact about a competitor in advertisements.
District Court Ruling and Appeals
On October 2, 2015, Judge Robin Rosenberg sitting in the U.S. District Court for the Southern District of Florida granted Novella’s motion for summary judgment. The court held that Novella’s speech is not subject to Tobinick’s claims because it is not commercial speech. The Court held that Novella’s articles cannot be considered advertisement because they did not solely propose a commercial transaction since they make reference to Novella’s treatments.
Tobinick filed an appeal with the Eleventh Circuit asking the court to reverse the ruling granting summary judgment dismissing the claims for false statements under the Lanham Act and state unfair competition laws. [He is also appealing the defamation claims, dismissed by the same court].
The brief urges the Eleventh Circuit to affirm the Judge Rosenberg’s ruling. It argues that Dr. Novella’s articles challenging the medical efficacy of Dr. Tobinick’s treatments are not commercial speech because they did not solely propose a commercial transaction. Since it is non-commercial speech and receives full protection under the First Amendment, there cannot be liability solely on the ground that it is false or misleading under either the Lanham Act or state unfair competition laws. The brief explains that just because speech is sold or rented doesn’t make it commercial speech, even if the publisher is motivated by the desire to sell it. Even if Novella’s speech had a commercial component, the presence of commercial speech within noncommercial expression does not make the entire work commercial speech.
Also, Tobinick’s broad reading of commercial speech doctrine, is dangerous as it threatens to chill the kinds of critical thought and expression in which commentators like Novella regularly engage in fora as formal as daily newspapers and as informal as personal blogs.
The brief further asserts that the risk of litigation would stifle discussion of public health and other important controversies that warrant more, rather than less speech since, “Tobinick’s attempt to silence a critic by characterizing his commentary as commercial speech clashes with the principle that debate concerning scientific matters should occur freely in the public arena and not be refereed by a court.”
The brief filed on May 27, 2016 is signed by Association of American Publishers, the American Booksellers for Free Expression, Freedom to Read Foundation, Comic Book Legal Defense Fund and Media Coalition Foundation.