The Eleventh Circuit Court of Appeal ruled this morning in favor of Randazza Legal Group's client, Dr. Steven Novella in a landmark First Amendment decision. Randazza serves as First Amendment counsel to PissedConsumer, and this decision makes us all more free.

The case, Tobinick v Novella, was originally filed in the Southern District of Florida. There, two doctors sparred over claims regarding a controversial Alzheimer’s treatment. Novella published his opinions about Tobinick’s treatment and Tobinick responded by filing a lawsuit for both defamation related counts and a creative Lanham Act claim. He sought an injunction that would suppress Novella’s opinions and significant damages.

Essentially, the Lanham Act claim stated that Novella's scientific articles were "false advertising.”

In a creative defensive move, Randazza filed an Anti SLAPP motion, invoking the California Anti-SLAPP statute in the South Florida federal court. This was possible because Tobinick filed not only in his own name, but also in the name of a California corporation. The Southern District of Florida, using conflict of law rules, applied California law and awarded Novella a win on the state law claims. The case then continued to the Lanham Act Claims. However, after Randazza defeated Tobinick’s attempt to get a preliminary injunction, censoring the articles, the case continued for a number of months. Thereafter Randazza filed a motion for summary judgment on the remaining Lanham Act claim and was successful. At this point, this case resulted in not only in summary judgment but an award of attorney’s fees against Tobinick.

Tobinick appealed the decision to the Eleventh Circuit Court of Appeal. An oral argument was held on January 20, 2017. On appeal, Tobinick argued that the lower court was wrong to impose an Anti-SLAPP award, because Anti-SLAPP statutes should not apply in federal court. However, the Eleventh Circuit Court of Appeal recognized that not only had Tobinick waived this argument below, but the lower court considered the matter nonetheless and came to the correct conclusion that the application of the Anti-SLAPP statute was proper.

As a matter of law, there was no “actual malice” and thus Tobinick could not prevail against Novella on his defamation-related claims.

Quoting the landmark case of the New York Times Co. v. Sullivan, 376 U.S. 254 (1964), the Eleventh Circuit Court recognized that calling Florida a “quack friendly state” was a matter of opinion and isolated statements, which should not pertain to the article's essential criticism were not evidence of a reckless disregard for the truth.  “Erroneous statement is inevitable in free debate, and... It must be protected if the freedoms of expression are to have the ‘breathing space’ that they ‘need to survive.’”

With respect to the Lanham Act, the Eleventh Circuit agreed with the lower court that Tobinick was not able to use a false advertising claim in order to make an end run around the First Amendment. False advertising and the Lanham Act only apply to "commercial speech" and even though there may have been some profit motive in writing an article, that does not deprive it of full First Amendment protection.

The Opinion is to be published as a recorded decision of the Eleventh Circuit Court of Appeals and should stand as an important win for freedom of expression. The Opinion is located here, and the recording of the oral argument is here.

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