American Booksellers for Free Expression (ABFE) has joined the Association of American Publishers (AAP) and other groups in filing a friend of the court brief in a lawsuit that could have a potentially crippling effect on the public debate of important subjects.
In a case before the 11th Circuit Court of Appeals, a doctor has been sued by another physician for criticizing his use of a drug to treat patients for conditions for which the drug has not been approved. Dr. Steven Novella has been accused by Dr. Edward L. Tobinick, the owner of a medical clinic, of violating a law that prohibits commercial competitors from making false statements about each other’s products.
On the website Science-Based Medicine, which he founded and edits, Novella, a clinic neurologist and assistant professor at Yale University Medical School, criticized Tobinick in a 2013 blog post. The website’s stated aim is to “explore issues and controversies in science and medicine.”
In his posting, Novella commented on an article in the Los Angeles Times about Tobinick’s clinic, the Institute of Neurological Recovery, which prescribes Enbrel, an anti-inflammatory medicine, for patients with a variety of illnesses. The article cited the case of one man who said he paid Tobinick $132,000 to treat his wife, who suffered from Alzheimer’s. (Tobinick says the amount was $71,000.)
“In my opinion, the story documents exploitation of a well-meaning and desperate husband at the hands of a dubious practitioner, practicing at the fringes of medical ethics and evidence, making bold claims without adequate justification,” Novella wrote. He also described the Institute of Neurological Recovery as having many of the characteristics of a “quack clinic.”
The Supreme Court has distinguished between the levels of legal protection afforded to non-commercial and commercial speech. The First Amendment protects the widest range of non-commercial speech to ensure vigorous public debate, including false and misleading statements. However, the Court has permitted the regulation of some commercial speech. The statute under which Tobinick sued Novella bars commercial speech that contains false or misleading statements about a competitor.
Tobinick is attempting to prove that Novella’s criticism is commercial speech. He asserts that Novella is engaged in commerce because he owns a company that produces podcasts, advertises on its own website and during the podcasts, and sells memberships and T-shirts.
The friend of the court brief filed by ABFE, AAP, the Comic Book Legal Defense Fund, the Freedom to Read Foundation, and the Media Coalition Foundation argues that the fact that the Novella is engaged in commerce does not make his blog post commercial speech. “If the Court were to accept the assertion that benefitting financially from speech, even indirectly, makes that speech commercial, professional journalism and academic debate would be crippled by the risk of unfair competition claims,” the brief says.
Defining commercial speech too broadly would threaten the free speech rights of booksellers and publishers as well. In a recent challenge to a Louisiana law that requires booksellers and other website owners to post an age-verification page to prevent minors from accessing “harmful” material, the government attempted to argue that the bookstore plaintiffs are engaged in commercial speech and are therefore not entitled to the full protection of the First Amendment. However, the judge rejected this argument and issued a preliminary injunction.
A district court has already ruled against Tobinick.