Another Free Speech Win In Libel Lawsuit Disguised As A Trademark Complaint

Unless the Supreme Court decides to weigh in on this long-running SLAPP lawsuit (highly unlikely — and unlikely to be appealed to that level), it looks like it’s finally the end of the line for Dr. Edward Tobinick and his quest to silence a critic of his questionable medical practices.

Quick recap: Dr. Tobinick claimed he could treat Alzheimer’s, strokes, and other neurological maladies by repurposing an immunosuppressant drug. Dr. Steven Novella disagreed with Tobinick’s unsubstantiated claims and wrote a few blog posts detailing his problems with Tobinick’s treatments.

Tobinick is not a neurologist, and yet he feels it is appropriate for him to treat multiple neurological conditions with an experimental treatment. It is generally considered unethical for physicians to practice outside of their area of competence and expertise. He is trained in internal medicine and dermatology and is certified in those specialties. He has never completed a neurology residency nor is he board certified in neurology.

Despite his lack of formal training and certification, he feels he has ushered in a “paradigm shift” in the treatment of Alzheimer’s disease – a disease that has proved challenging for actual neurologists for decades.

Novella is not alone in his criticism of Tobinick’s untested treatment methods. Early on in the case, Marc Randazza summarized the general medical community mood.

Dr. Novella’s critical opinions of the Plaintiffs are not outlier views. In fact, the prevailing view seems to be that Dr. Tobnick is, at best, irresponsible. On the first page of Google alone, there are numerous other articles written by other authors, entirely unrelated to the article at hand, that also express critical and unflattering opinions of Tobinick and Plaintiffs’ “medical” practice.

Hoping to avoid an anti-SLAPP ruling or the judicial scrutiny that normally comes with defamation complaints, Tobinick tried to frame his censorship pleas as trademark law violations, claiming Novella’s blog posts were “commercial speech” designed to interfere with his ability to earn an income treating people with questionable drug repurposing.

The lower court didn’t care much for Tobinick’s arguments. It found no merit in his severely-stretched Lanham Act claims and, better yet, applied California’s anti-SLAPP law to the lawsuit Tobinick filed in Florida.

Tobinick appealed. And all he’s really succeeded in doing is generating more legal fees he’ll be responsible for. The Eleventh Circuit Appeals Court has upheld [PDF] the lower court’s decision, handing Dr. Novella, attorney Marc Randazza, and the First Amendment a significant win. (If you’re a fan of oral, the arguments can be found here.)

Appellants Edward Lewis Tobinick, MD (“INR CA”), INR PLLC (“INR FL”), and M.D. Edward Tobinick (“Dr. Tobinick”) (collectively, the “Tobinick Appellants”) appeal the district court’s orders striking INR CA’s state law claims pursuant to California’s anti-SLAPP statute, twice denying amendment of the Tobinick Appellants’ complaint, denying relief pursuant to Federal Rules of Civil Procedure (“Rule”) 37, 56(d), and 60 due to potential discovery-related abuses, and granting summary judgment against the Tobinick Appellants on their Lanham Act claim. We affirm the district court in all respects.

As for Tobinick’s attempt to keep an anti-SLAPP law from another state from killing his Florida lawsuit, the appeals court points out that if this was an issue Tobinick wanted addressed, he needed to raise it with the lower court, rather than use the appeals process to develop unexplored options.

The Tobinick Appellants waived their challenge to the district court’s application of California’s anti-SLAPP statute based on the Erie doctrine. The Tobinick Appellants did not raise the Erie claim in their response to Dr. Novella’s special motion to strike INR CA’s state law claims, nor do the Tobinick Appellants now contend that they ever raised the issue before the district court. Moreover, when asked by the district judge “what about the issue of anti-SLAPP statutes applying in diversity cases in federal court?” the Tobinick Appellants’ counsel responded “[t]here seems to be a plethora of case law that suggests that it is allowable in diversity actions in federal court.”

No exception to waiver saves the Tobinick Appellants’ claim. The Tobinick Appellants have not identified any miscarriage of justice resulting from a finding of waiver, nor do we see one, given the weakness of the Tobinick Appellants’ state law claims.

The appeals court is even less kind to Tobinick’s Lanham Act violation accusations — all of which hinge on defining Novella’s blog posts as commercial speech. Not only did Tobinick repurpose trademark law in an attempt to turn a baseless libel lawsuit into something that might survive the first motion to dismiss, but his Lanham Act arguments rely on a conspiracy theory Alex Jones himself might find implausible.

As a preliminary matter, there is no factual dispute as to where the articles were displayed online, how the websites were set up, and whether the websites generated revenue through advertisements and membership subscriptions. The Tobinick Appellants describe a complex “funneling” scheme to generate profit for Dr. Novella, in which the Tobinick Appellants claim that the two articles are connected to other websites through hyperlinks in a way that readers are directed to websites that generate revenue for Dr. Novella, such as through advertising or membership subscriptions. This funneling theory, which attempts to connect the articles to revenue sources, relies on such a level of attenuation that it fails to demonstrate economic motivation in the commercial speech context.

Even if it were more easily-connected, Novella’s speech would still be protected and not in violation of the Lanham Act. The court points out Novella’s medical practice has no overlap with Tobinick’s. Furthermore, the content of Novella’s articles — the examination of a potentially-dangerous misapplication of immunosuppressant drugs — is very much in the public interest, which only strengthens its First Amendment protections.

As the court points out, finding critical speech that results in revenue a violation of the Lanham Act would do serious harm to the most famous beneficiaries of the First Amendment.

To be sure, 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. Both advertising and subscriptions are typical features of newspapers, whether online or in-print. But, the Supreme Court has explained that “[i]f a newspaper’s profit motive were determinative, all aspects of its operations—from the selection of news stories to the choice of editorial position—would be subject to regulation if it could be established that they were conducted with a view toward increased sales. Such a basis for regulation clearly would be incompatible with the First Amendment.”

Furthermore, as our sister circuits have recognized, magazines and newspapers often have commercial purposes, but those purposes do not convert the individual articles within these editorial sources into commercial speech subject to Lanham Act liability.

This puts Dr. Tobinick back where he was in October 2015: on the hook for legal fees because he figured the best response to speech he didn’t like was a bogus Lanham Act lawsuit. And, as is of particular relevance given recent events, more courts are applying states’ anti-SLAPP laws to baseless lawsuits, regardless of the jurisdiction in which they’re filed.

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Author: Tim Cushing

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