Judge Decides Free Speech Is Still A Right; Dumps Prior Restraint Order Against Mattress Review Site
from the hearing-from-both-sides:-it's-a-thing dept
A couple of weeks ago, a federal judge in Utah decided prior restraint was the best way to handle a recently-filed defamation suit against Honest Mattress Reviews by Purple Innovations, makers of the Purple Mattress.
Purple's lengthy filing contained numerous allegations of harm caused by Honest Mattress Reviews' extended commentary on the white plastic powder covering every mattress Purple ships. It also alleged HMR was just a front for site owner Ryan Monahan's brand management work with Purple's competitor, Ghostbed. Rather than give HMR a chance to respond, the judge decided the review site could publish nothing further about Purple or the lawsuit. It wasn't even allowed to refer to its previous rating of Purple's mattress.
Honest Mattress Review didn't care much for this decision -- one it had been given no chance to contest. It immediately posted an article about the case and offered to comply with the letter of the order, but perhaps not its spirit.
This temporary order commands that we take down all reviews, and even cease rating this company with a rating of “Poor.” Yes, indeed, we are no longer even permitted to rate this company as Poor. I guess we will change its rating to “💩.”
[...]
Do you trust a company that, rather than compete in the marketplace, decides that it will just try and sue negative reviews out of existence?
Purple Innovations immediately returned to court, demanding it find HMR in contempt of its order, in particular pointing to the poo emoji and HMR's claims about the unconstitutionality of the order and Purple's alleged disingenuousness in filing the libel suit.
That review has since been reinstated and given this header image.
And HMR has published a long list of court documents it has filed in this case. This includes a motion to dissolve the restraining order and a preliminary examination of the powdery substance Purple claims is harmless and that HMR claims could be hazardous to purchasers' health.
In the motion [PDF] to dissolve the order, attorney Marc Randazza points out that fashioning a libel lawsuit as a tortious interference lawsuit doesn't change the ultimate goal of the litigation: to silence criticism.
The action is a quintessential SLAPP suit designed to suppress negative consumer journalism. Plaintiffs have cleverly attempted to disguise this defamation claim as a Lanham Act claim – presumably to ensure the availability of Federal Court jurisdiction and to try to side-step the clear case law that cuts against them in defamation actions. But, no matter how eloquently someone may call a “dog” a “chicken,” it will never lay eggs. And styling a specious defamation claim as a Lanham Act claim does not remove the underlying speech from the protections afforded by the First Amendment.
He also points out that Purple's claims that the plastic packing dust is harmless haven't been supported by anything Purple's willing to let customers and competitors view. Instead, it's only made vague assertions about its safety. And those statements are ultimately meaningless when examined closely.
Plaintiff sells mattresses that are made of a rubber honeycomb, which they then dust with a powder that they claim is made of plastic and has been shown to be polyethylene microspheres. In other words, someone who sleeps on these mattresses would be expected to inhale these microspheres. The Plaintiff claims that it is “non toxic” and “food grade” plastic – but this does not assuage the concerns. After all, a plastic fork is “food grade” and “non toxic” but you most certainly would not want to actually eat it. The same goes for what a person wants to put in their lungs. It was reasonable to be concerned about this “plastic powder” since (a) if the particles that make up this plastic “powder” are of a certain size, they will pass through the alveoli into the bloodstream; or (b) if they are a bit larger, they will simply lodge themselves inside the lungs.
To support its claims, HMR put a Harvard Professor of Pathology to work. Dr. John Godleski's report [PDF] is far from complete at this point, but what's contained in his preliminary examination of the powder doesn't appear to agree with Purple's assertions of harmlessness.
By Fourier Transformed Infrared spectroscopy (FTIR), the white powder particles were shown to be polyethylene, and the purple frame was found to be polyethylene-polypropylene copolymer. The foam portion of the mattress is still understudy, but has characteristics of butadiene, and may be a form of butadiene polymer.
Polyethylene is a common plastic formed into many structures. As inhalable microspheres, these have the potential to cause respiratory irritation especially when inhaled in large numbers as shown in my laboratory (1- 4). In addition, polyethylene has been associated with allergy in the form of either asthma or contact dermatitis in sensitized individuals (5-7). Based on this assessment, it is important for consumers to be aware of the composition of this fine particulate matter in the mattress which may be released into the air and has the potential for the development of respiratory or dermal hypersensitivity in some individuals.
Also included in the filed documents is an affidavit that undercuts Purple's claims about HMR's site owner being a competitor's "brand manager." This is central to Purple's Lanham Act claims -- the claims it's using to sidestep anti-SLAPP motions. The affidavit from the competitor (Ghostbed) notes HMR's site owner has never been directly employed by Ghostbed and that Ghostbed told him to stop referring to himself as its "brand manager" after noticing that statement on his Twitter profile.
The judge presiding over the case appears to have been overwhelmed by the pile of documents landing on his desk. A short order [PDF] issued on the 15th shows what can happen when a normally adversarial process is allowed to be, you know, adversarial.
For the reasons set forth in the parties’ briefing and at oral argument, the court finds a lack of “clear and unequivocal” support for a right to relief that is necessary for the entry of the “extraordinary remedy” of a preliminary injunction. Greater Yellowstone Coal v. Flowers, 321 F.3d 1250, 1256 (10th Cir. 2003). As such, the court hereby grants Defendants’ motions to dissolve the Temporary Restraining Order (Dkt. No. 36), and denies Plaintiff’s oral Motion to convert the Temporary Restraining Order into a Preliminary Injunction. The court similarly denies Plaintiff’s Motion for Leave to Conduct Expedited Discovery (Dkt. No. 39) and Motion for Order to Show Cause Why Defendants Should not be Held in Contempt (Dkt. No. 17). The court further denies Defendants’ request for sanctions, finding that such sanctions are not warranted here.
The restraining order is lifted and HMR's turd-laced post isn't in danger of being found contemptuous. The lawsuit should continue in a more constitutional fashion from this point forward.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: 1st amendment, free speech, mattress reviews, prior restraint, ryan monahan, temporary restraining order
Companies: honest mattress reviews, honest reviews, purple innovation
Reader Comments
The First Word
“Re: Re: judges
They have lifetime appointments, just like Supreme Court justices, so no, they don't get fired.
Before you start deciding whether judges give a "flying flip," bear in mind that each judge in the District of Utah had 459 pending cases (as of 9/30/16). What appears to you to be a lack of concern almost certainly is a whoops-got-that-one-wrong-fix-it-now-move-on-to-the-other-458.
Subscribe: RSS
View by: Time | Thread
judges
[ link to this | view in thread ]
“food grade” and “non toxic”
A little off-topic, but I'd like to point out that while water may also be “food grade” and “non toxic”, it is something else that a person may not want to put in their lungs.
[ link to this | view in thread ]
Re: judges
[ link to this | view in thread ]
Re: judges
[ link to this | view in thread ]
Re: “food grade” and “non toxic”
[ link to this | view in thread ]
Re: Re: “food grade” and “non toxic”
Especially when applied to a Rubik's cube.
[ link to this | view in thread ]
Re: judges
[ link to this | view in thread ]
Re: Re: Re: “food grade” and “non toxic”
[ link to this | view in thread ]
Re: Re: Re: Re: “food grade” and “non toxic”
Well I do have one of the officially-branded "World's smallest Rubik's Cube"s that is, at about 3/4" a side, definitely small enough to swallow/inhale. That's not a solving method I'm particularly interested in trying out, though.
[ link to this | view in thread ]
Re: Re: judges
They have lifetime appointments, just like Supreme Court justices, so no, they don't get fired.
Before you start deciding whether judges give a "flying flip," bear in mind that each judge in the District of Utah had 459 pending cases (as of 9/30/16). What appears to you to be a lack of concern almost certainly is a whoops-got-that-one-wrong-fix-it-now-move-on-to-the-other-458.
[ link to this | view in thread ]
Re: Re: judges
No, federal district court judges have lifetime appointments (which is why confirmation hearings are so much fun).
Yes, because you obviously have to fix something, like hold a new trial, change your order to conform to the appellate decision, or whatever.
See comment about confirmation hearings above. After going through that, this is cake.
No.
Sometimes, judges drop commentary in opinions, but it doesn't happen often. Look for orders that cite how a bunch of other courts do something, followed by "However, this Court is bound to follow the Court of Appeals here ..."
They're not elected. Once appointed, they do not care who appointed them. (Of course, state court mileage will vary, but the case here is federal.)
[ link to this | view in thread ]
Re: Re: Re: judges
[ link to this | view in thread ]
[ link to this | view in thread ]
Re:
[ link to this | view in thread ]
"What do you mean they fought back?!"
So Purple sues HMR for implying that the powder they use might not be as harmless as they said it was, HMR responds by hiring a scientist to check it out, and his report seems to indicate that no, it isn't as harmless as they're making it out to be.
This reminds me of the saying, 'It is better to be suspected of being an idiot than to speak and remove all doubt'. In their attempt to silence someone calling their product into question they instead called even more attention to it, and that attention does not seem to be doing them any favors at all.
[ link to this | view in thread ]
Re: “food grade” and “non toxic”
Asbestos is a very stable family of molecules. It's non-toxic, thanks to that stability. It's solely due to the size and shape of abraded particles that it is a hazard.
[ link to this | view in thread ]
Re: Re: Re: judges
This was a little more significant and premeditated than an innocent little "whoopsie".
Except, as I understand it, the judge had the opportunity but decided not to "fix it". It took another judge over him to do that.
Whoops, got called out on that one. Oh well, there are still another 458 chances on the docket to hold the Constitution in contempt, with more coming in all the time. Time to make America great!
[ link to this | view in thread ]
Re: Re: Re: Re: judges
Care to provide any support for that?
No, District Judge Dee Benson signed this order and the previous one.
[ link to this | view in thread ]
Re: Re: Re: Re: “food grade” and “non toxic”
[ link to this | view in thread ]
I'm not laying on that!
[ link to this | view in thread ]
[ link to this | view in thread ]
Re: Re: Re: Re: Re: judges
So you're suggesting that
First amendment violations are insignificant, and/or
If that's the case then I feel sorry for the parties to those other 458 pending cases.
That makes a significant difference to my opinion of the matter. I would now say that the court redeemed itself.
[ link to this | view in thread ]
Re: Re: Re: Re: Re: Re: judges
If you read both this post and the previous one on this case, it's clear that the plaintiff was trying to hide the true nature of its claims behind trademark law. It seems likely that the judge just missed it the first time around, not for lack of concern for the law but because the lawyer slipped one past.
Once the judge realized the mistake—when a lawyer finally argued the defendant's case—the judge fixed it.
[ link to this | view in thread ]
Re:
[ link to this | view in thread ]
Re: Re: Re: Re: Re: Re: Re: judges
Giving the judge credit for having given the ruling a measure of thought before actually issuing it is admittedly an assumption which cannot be proven. So let me ask you, do you have any support for the idea that this judge typically issues rulings without giving them any forethought?
If, as you seem to saying, the plaintiff performed some sort of fraud on the court, has the judge initiated a criminal investigation as a result?
[ link to this | view in thread ]
why not? this tactic has worked well up to now for the entertainment industries!!
[ link to this | view in thread ]
Re: Re: Re: Re: Re: Re: Re: Re: judges
We agree that the judge made a mistake in the original order. The question is why. Tegman suggested the judge didn't give a "flying flip" about constitutional rights. I responded and suggested that caseload might have something to do with it. Mistakes happen. It's been fixed.
Where you came up with the notion that anyone was arguing that the judge didn't think about the orders before they were issued, I have no idea. When you find the rabbit, let me know.
[ link to this | view in thread ]
Re: Re: “food grade” and “non toxic”
[ link to this | view in thread ]
Re: Re: Re: judges
People who say things like this must have lived a life totally free from responsibility.
"Whoops" isn't an acceptable excuse for forgetting about things like free speech and prior restraint when people's lives, livelihoods, and Constitutional rights are at stake.
Yes, I sometimes make minor mistakes in my job. No court ruling is a minor mistake. It's not like this clueless judge just misspelled something.
[ link to this | view in thread ]
Re: Re: Re: Re: Re: Re: Re: Re: Re: judges
Let's see...
Are you not aware that people can see what you previously wrote? Or perhaps that was a different TechDescartes?
[ link to this | view in thread ]
Re: Re: Re: Re: judges
I take it you never have realized that the entire justice system is built around fallible human beings making mistakes. That's why we have Magistrates who can be reviewed by District Court judges who can be reviewed by the Courts of Appeals who can be reviewed by the Supreme Court. As was said of the Supreme Court by Justice Robert Jackson: "We are not final because we are infallible, but we are infallible only because we are final." Brown v. Allen, 344 U.S. 443.
"Whoops" isn't an excuse. It's an admission of a mistake. If you read the second order, the Court doesn't offer any excuse for its first order. It just fixes it by issuing the right order the second time around.
As for "people's lives, livelihoods, and Constitutional rights" being at stake, I'll give you that the First Amendment is front and center here. But I don't exactly recall anyone's life being at stake in this case, or even anyone's livelihood.
[ link to this | view in thread ]
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: judges
Said as only one can say when they have no answer to the question put to them in the first place. Let's go back to the statement that prompted the question:
For the record, I never wrote "innocent", "little", or even "whoopsie". "Premeditated" has a negative connotation, suggesting that the judge issued the first order knowing that the defendant's First Amendment rights were being trampled. That's a serious charge.
Instead of providing support for that charge, the AC responds with questions:
Neither of those questions follow from the demand for evidence.
[ link to this | view in thread ]
Even if it was contempt of court
[ link to this | view in thread ]
Re: Even if it was contempt of court
[ link to this | view in thread ]