Free Speech Arguments Prevail in Tobinick v. Novella


Free speech prevailed in a case alleging that any speech published on a website with advertising should be treated as “commercial speech,” a category afforded less First Amendment protection. CBLDF and other members of the Media Coalition filed an amicus brief in the case, Tobinick v. Novella, when it was heard before the 11th Circuit Court of Appeals. In the court’s decision, published yesterday, the three-judge panel agreed with our argument that speech hosted on a website that also displays ads does not automatically become “commercial speech.”

The case involves a dispute between two neurologists, Edward Tobinick and Steven Novella. After the latter published two blog posts critical of Tobinick’s off-label use of the drug Enbrel to treat strokes and Alzheimer’s disease, Tobinick sued him under the federal Lanham Act, alleging that the posts constituted commercial speech subject to truth-in-advertising and unfair competition rules. Novella is the founder and executive editor of Science-Based Medicine, the group blog where he published the posts. Tobinick’s lawsuit alleged that because Science-Based Medicine generates revenue from advertisements and sale of memberships and merchandise, anything published on the site qualifies as commercial speech.

The case was first heard in 2015 in a Florida district court, where the judge granted Novella’s motion to dismiss it as groundless. Tobinick appealed that decision to the 11th Circuit, which heard the case in December 2016. In the amicus brief, filed in partnership with the Media Coalition, CBLDF and other free speech organizations warned of the chilling effect that would result from accepting such a broad definition of commercial speech.

In the decision handed down this week, the 11th Circuit agreed with the lower court’s ruling, pointing out that plenty of publications generate revenue through advertising and subscriptions but that does not mean that a newspaper editorial, for instance, is commercial speech. On the contrary, the court held that Novella’s blog posts obviously constituted scholarly discourse:

[T]he articles discuss the plausibility of Dr. Tobinick’s practices in relation to the different medical conditions treated, the way [the drug] etanercept works, and the shortage of medical studies supporting Dr. Tobinick’s position. These articles, which conclude that Dr. Tobinick’s perispinal administration of etanercept is ineffective, add to the public debate regarding the viability of a non-FDA approved medical treatment and are clearly of import to the public.

Thanks to the 11th Circuit for upholding First Amendment principles! 

You can view the 11th Circuit Court’s opinion in its entirety below.

11th Circuit Opinion in Tobinick v. Novella by betsy.gomez on Scribd

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