Utah Judge Won't Let The Constitution Get In The Way Of A Little Prior Restraint
from the another-libel-and/or-Lanham-case dept
For reasons unknown, a federal judge has said the hell with free speech and steered the court into the First Amendment-troubling waters of prior restraint.
It’s another defamation lawsuit that doesn’t spend too much time dealing with defamation, preferring to focus on Lanham Act violations and tortious interference. Purple Innovations, maker of a (purple) bed-in-a-box mattress, is suing the Honest Mattress Reviews website, along with Ryan Monahan, former “Chief Brand Officer” for Purple Innovations competitor, Ghostbed, and creator of the site.
Unlike other defamation suits we’ve covered here — especially those attempting to dodge anti-SLAPP motions by presenting themselves as trademark suits — Purple’s complaint is long and detailed. Purple feels multiple posts at Honest Mattress Reviews have falsely disparaged the company and its products. All of the posts center on the white “powder” Purple uses to coat its mattresses during packaging to prevent it from sticking to itself.
Purple’s Lanham Act claims rest on Monahan’s alleged conflicted interests, even as it admits in its filing that Monahan is no longer associated with GhostBed. It points to several statements posted at Honest Mattress Reviews which infer the powder used by Purple might be dangerous or unhealthy. HMR offers no proof of these assertions, but very few of them are actual assertions. In most cases, they’re merely implications, surrounded by phrasing and pull quotes that help make the patent-pending substance appear more dangerous than Purple claims it is. Purple hasn’t offered too many specifics in defense of its white powder, citing its pending patent as the reason it can’t be more specific about the powder’s composition.
At this point, we don’t know much about the merits of Purple’s arguments, and nothing at all about the merits of Honest Mattress Review’s defense. The defendants haven’t been allowed to respond yet. The path to Purple’s granted restraining order has been completely non-adversarial. Not a single document has been filed or motion entered by the defendants. [click through to enlarge]
In less than a week, Purple has:
(a) accidentally sued itself
(b) had the case transferred from a magistrate to district court judge
(c) asked for a restraining order
(d) received a restraining order
(e) asked for contempt charges to be brought against the defendants
Purple has filed a 102-page complaint [PDF] and a 174-page restraining order request [PDF], the latter of which is basically the 102-page complaint with 70 pages of website screenshots. Without seeing anything more than Purple’s allegations, Judge Dee Benson has granted the request [PDF]. Not only does it require Honest Mattress Reviews to take down existing posts about Purple Innovations and its packing powder, it forbids the defendants from discussing the lawsuit in any way the court disapproves of.
Defendants shall not attempt to circumvent the intent of this Order by make new statements about Purple or its products which are false and misleading and convey the same substantive message as in the statements referenced in preceding sub-paragraphs (a)-(c), including through the “clever use of innuendo, indirect intimations, and ambiguous suggestions.”
Defendants are hereby restrained from making false, misleading, or confusing posts or discussions on social media or otherwise about the existence of this lawsuit, the Court’s temporary restraining order or other any other orders that may be issued by the Court, or about Purple’s efforts in this lawsuit to restrain Defendants from continuing to engage in the conduct at issue, in an attempt to circumvent the purpose of the injunctive relief sought by Purple.
We’ll have to see if Honest Mattress Review’s post about the lawsuit adheres to the confines of the restraining order. It doesn’t make any false statements but does contain wording the plaintiffs are sure to find objectionable, even if the court doesn’t.
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?
The court says the 14-day (minimum) restraining order does not harm the public in any way, while continued publication of HMR’s inferences and allegations would continue to do “irreparable harm” to Purple Innovations. It also says HMR is fully aware of the situation, even if it’s not being allowed to participate in the process yet.
Plaintiff has provided multiple declarations, reflecting notice to the Defendants, through various means. The Court is satisfied that the Defendants have notice of these proceedings.
All well and good, but we’re not talking an inordinately lengthy delay between the filing of the suit and the defendants’ response. We’re talking about one week from filing to prior restraint, without a single nod being given to the “adversarial” part of the process.
The defendant website is now being represented by Marc Randazza, who’s collected several First Amendment-affirming wins for clients over the years. The allegations in this case may not be as baseless as in others he’s handled (Tobinick v. Novella, Roca Labs v. Opinion Corp.), but he tends to find prior restraint to be rather triggering. The first move will be to put the Constitution back in play. After that, there are dozens of pages of allegations to address, so this isn’t going to be resolved anywhere near as fast as it went from mere allegations to ignoring Walter Sobchak.