Publishing Article = Not Commercial Speech

Another 11th Circuit case, also involving doctors. Rebecca Tushnet has the details, but it’s another of those relatively-rare cases dealing with the question of whether something that isn’t a straightforward advertisement can be commercial speech. The answer here – applying the slippery 2-or-3 part test (advertising format, promoting a specific product, with economic motive) – was NOPE.

Helpfully, the court also disposes of the oft-raised (but asinine) argument that advertising revenue converts otherwise-editorial content into commercial speech:

Even if Dr. Novella receives some profit for his quasi- journalistic endeavors as a scientific skeptic, the articles themselves, which never propose a commercial transaction, are not commercial speech simply because extraneous advertisements and links for memberships may generate revenue.

UPDATED: Somehow I missed that the lawyer representing the defendant here was none other than my friend, counsel, and First Amendment badass Marc Randazza. Congrats on another great Florida win, Marco (especially the part about getting California anti-SLAPP law applied in a Florida court)!

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