Court SLAPPS Down Defamation Suit

The Eleventh Circuit upheld a district court’s rejection of a doctor’s libel and false advertising action challenging two articles highly critical of his novel medical treatments. In Edward Lewis Tobinick, MD v. Novella, 2017 WL 603832 (11th Cir. Feb. 15, 2017), the court upheld the district court’s orders striking state-law claims pursuant to California’s anti-SLAPP statute, denying two motions to amend the complaint, denying relief due to alleged discovery-related abuses, and granting summary judgment on the plaintiffs’ Lanham Act claim.

Dr. Tobinick developed an “unorthodox” use for a drug, and the Los Angeles Times wrote an article discussing Dr. Tobinick’s novel treatment.  In response, Dr. Novella published an article sharply criticizing Dr. Tobinick’s treatment.  The Tobinick plaintiffs filed a complaint against the Novella defendants, challenging Dr. Novella’s article.  Dr. Novella then published another article about the lawsuit titled “Another Lawsuit to Suppress Legitimate Criticism—This Time SBM.”  In this article Dr. Novella detailed the lawsuit and set forth Dr. Novella’s view that the complaint was filed to silence his criticism of Dr. Tobinick’s practices.  Dr. Novella has been covering the case in his popular podcast, The Skeptics’ Guide to the Universe.  Plaintiffs filed an amended complaint to add allegations relating to this second article.

Dr. Novella moved to strike state-law claims brought by the only California plaintiff, INR CA. Dr. Novella invoked California’s anti-SLAPP statute, which targets lawsuits aimed at chilling freedom of speech.  Over half the states have some version of an anti-SLAPP statute (see here for a state-by-state listing of anti-SLAPP statutes).  The district court granted the motion to strike the state-law claims against INR CA.

The appellants challenged the district court’s anti-SLAPP order on two grounds. First, the appellants contended that the district court erred in adopting the anti-SLAPP expedited procedures.  The appellants alleged that this “trampled federal procedure and constitutional rights” and violated the Erie doctrine.  The Eleventh Circuit held that this argument was waived by failure to raise it before the district court.

Second, the appellants argued the district court’s determination that there was no evidence of actual malice by Dr. Novella was erroneous. The district court applied California’s anti-SLAPP statute by reasoning that Dr. Tobinick is a “limited public figure,” and that he had not produced evidence of actual malice such that INR had a probability of prevailing on its state-law claims.  The Eleventh Circuit applied California’s definition that “actual malice” is defined as “with knowledge that a statement was false or with reckless disregard of whether it was false or not.”  The Eleventh Circuit held that the appellants had not presented evidence rising to the level of actual malice because they failed to show that Dr. Novella “had serious doubts as to the truth of the content contained in his two articles.”

The appellants argued that the district court erred in granting summary judgment against them on their Lanham Act false advertising claim because there are material facts in dispute regarding the commercial nature of Dr. Novella’s speech. The Lanham Act prohibits false advertising in “commercial advertising or promotion.”  The elements of violation of the Lanham Act are:  “(1) commercial speech; (2) by a defendant who is in commercial competition with plaintiff; (3) for the purpose of influencing consumers to buy defendant’s goods or services; and (4) the representations must be disseminated sufficiently to the relevant purchasing public to constitute ‘advertising’ or ‘promotion’ within that industry.”

The Eleventh Circuit upheld the district court’s decision that Dr. Novella’s articles are not commercial speech, but instead are noncommercial speech that “communicate information, express opinion, and recite grievances.” The court found the purpose of Dr. Novella’s articles to be to provide his opinion and analysis of medical claims so that consumers can make informed decisions, which is, at its core, non-commercial.

The court also affirmed the district court’s denial of motions for leave to amend the complaint and for discovery sanctions.

Posted by Margaret Flatt.

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