The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Tobinick v. Novella (S.D. Fla. Mar. 16, 2015) is a complicated case, with lots of legal twists. But one of them was this: Is the Society for Science-Based Medicine, a nonprofit opinionated education and advocacy group, a "media defendant" for purposes of a Florida statute that gives media defendants special procedural protections?
Yes, said the district court (some paragraph breaks added):
The … question … is whether or not the Society is a media defendant such that Plaintiffs were required to provide it with a pre-suit notice letter. "Although the express language of section 770.01 does not limit the type of defendant entitled to presuit notice, '[e]very Florida court that has considered the question has concluded that the presuit notice requirement applies only to "media defendants," not to private individuals.'" In defining the term "media defendant," courts have considered whether the defendant engages in the traditional function of the news media, which is "to initiate 'uninhibited, robust, and wide-open debate on public issues.'"
Thus, media defendants are not just those who "impartially disseminate information," or "issue unsolicited, disinterested and neutral commentary as to matters of public interest." The term also applies to those who "editorialize as to matters of public interest without being commissioned to do so by [their] clients."
The Court finds that the Society does, in fact, qualify as a media defendant entitled to the protections of Florida's pre-suit notice statute. The stated mission of the Society, which is a not-for-profit corporation, "is to educate consumers, professionals, business people, legislators, law enforcement personnel, organizations and agencies about the concept of science-based medicine and to provide a discussion forum for issues in the area of medical science." It also intends to operate "as the central source of information and discussion for all aspects of the concept of science-based medicine." Its mission encompasses "[o]pposition to health care practices whose diagnoses, diagnostic methods, and therapies have no plausible basis in the scientific model of medicine or an insufficient basis in evidence to warrant their use.".
Clearly, the issues which the Society intends to address are ones of public importance. Although the Society has a particular agenda, that does not rob it of the protections afforded it by the pre-suit notice statute. The Society's mission falls squarely within that of the traditional media; it aims "to initiate 'uninhibited, robust, and wide-open debate on public issues.'"
The fact that the Society may be opposed to certain health care practices it believes have "no plausible basis in the scientific model of medicine or an insufficient basis in evidence to warrant their use" does not render it a non-media defendant. A defendant may qualify as a member of the media for purposes of Florida's pre-suit notice provision if it "editorialize[s] as to matters of public interest without being commissioned to do so by its clients." Here, there is no evidence that any of the allegedly false and/or defamatory statements were commissioned. The Court concludes that the Society is a media defendant, and it is consequently entitled to a remedy for Plaintiffs' violation of the pre-suit notice statute.
The particular statutory right involved here isn't that important here; the statute just provides for notice before a lawsuit is filed:
Before any civil action is brought for publication or broadcast, in a newspaper, periodical, or other medium, of a libel or slander, the plaintiff shall, at least 5 days before instituting such action, serve notice in writing on the defendant, specifying the article or broadcast and the statements therein which he or she alleges to be false and defamatory.
Still, the logic of the decision would apply to interpretation of other statutes as well. For a different approach, see the Service Employees International Union v. Professional Janitorial Service, Inc. case, in which a Texas Court of Appeals held—I think incorrectly—that only organizations that have "reporting the news" as their "primary business" are entitled to statutory protection as media.
Note that this is a different question of who gets constitutional protection under the Free Press Clause. As I argue in this article, the great bulk of the precedent says "everyone who uses mass communications technology," whether or not they are members of some group called the "media;" see also Obsidian Finance Group LLC v. Cox (9th Cir. 2014) (so holding). But cases such as Tobinick and SEIU involve statutes that expressly offer special protection for the "media" (or that have been interpreted as limited to the "media"). For those cases, we do need to figure out who's "media" and who isn't.