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.


Reader Comments

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  1. identicon
    Jordan Chandler, 20 Mar 2017 @ 3:19pm

    judges

    You're a judge, you make a terrible, obviously wrong decision, like in this case. Is this included in your review? Do you get a copy that you've been slapped down by a higher court? Do some judges get upset and try and talk to the higher court? How does that work?

    reply to this | link to this | view in thread ]

  2. identicon
    Tegmen, 20 Mar 2017 @ 3:23pm

    “food grade” and “non toxic”

    The same goes for what a person wants to put in their lungs.

    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.

    reply to this | link to this | view in thread ]

  3. identicon
    Tegmen, 20 Mar 2017 @ 3:25pm

    Re: judges

    Some judges don't seem to give a flying flip. I don't think federal judges are easily "fired".

    reply to this | link to this | view in thread ]

  4. identicon
    Anonymous Coward, 20 Mar 2017 @ 3:26pm

    Re: judges

    Well the judge who specifically ignored controlling Supreme Court precedent by name (The Brandenburg standard for incitement) in order to pass an unconstitutional prior restraint on Aaron Worthing/Walker, an order that was overturned by a competent judge within a month, was given an official reprimand by the Maryland Commission on Judicial Disabilities.

    reply to this | link to this | view in thread ]

  5. identicon
    Anonymous Coward, 20 Mar 2017 @ 3:30pm

    Re: “food grade” and “non toxic”

    I've got a can of "food-grade" silicone lubricant spray for my Rubik's cubes. The can also says "HARMFUL OR FATAL IF SWALLOWED" on the front.

    reply to this | link to this | view in thread ]

  6. icon
    TechDescartes (profile), 20 Mar 2017 @ 3:35pm

    Re: Re: “food grade” and “non toxic”

    I've got a can of "food-grade" silicone lubricant spray for my Rubik's cubes. The can also says "HARMFUL OR FATAL IF SWALLOWED" on the front.

    Especially when applied to a Rubik's cube.

    reply to this | link to this | view in thread ]

  7. identicon
    Unanimous Cow Herd, 20 Mar 2017 @ 3:36pm

    Re: judges

    All good questions. And, I would guess, somewhat influenced by whoever elected or appointed you.

    reply to this | link to this | view in thread ]

  8. identicon
    Unanimous Cow Herd, 20 Mar 2017 @ 3:37pm

    Re: Re: Re: “food grade” and “non toxic”

    What are you doing with those cubes, bro?

    reply to this | link to this | view in thread ]

  9. identicon
    Anonymous Coward, 20 Mar 2017 @ 3:49pm

    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.

    reply to this | link to this | view in thread ]

  10. icon
    TechDescartes (profile), 20 Mar 2017 @ 3:56pm

    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.

    reply to this | link to this | view in thread ]

  11. icon
    TechDescartes (profile), 20 Mar 2017 @ 4:07pm

    Re: Re: judges

    Is this included in your review?

    No, federal district court judges have lifetime appointments (which is why confirmation hearings are so much fun).

    Do you get a copy that you've been slapped down by a higher court?

    Yes, because you obviously have to fix something, like hold a new trial, change your order to conform to the appellate decision, or whatever.

    Do some judges get upset ... ?

    See comment about confirmation hearings above. After going through that, this is cake.

    Do some judges ... try and talk to the higher court?

    No.

    How does that work?

    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 ..."

    somewhat influenced by whoever elected or appointed you.

    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.)

    reply to this | link to this | view in thread ]

  12. identicon
    Jordan Chandler, 20 Mar 2017 @ 4:10pm

    Re: Re: Re: judges

    Thank you. I'm not a lawyer, but even I know about prior restraint. Even the dude from the Big Lebowski knows about it.

    reply to this | link to this | view in thread ]

  13. identicon
    Anonymous Coward, 20 Mar 2017 @ 5:07pm

    Dang, I just got one if there purple pillows from the kickstarter they did recently... guess I'll repurpose it as a seat cushion or something now...

    reply to this | link to this | view in thread ]

  14. icon
    JoeCool (profile), 20 Mar 2017 @ 5:12pm

    Re:

    A lot of modern pillows are machine washable. If this one is, do so.

    reply to this | link to this | view in thread ]

  15. icon
    That One Guy (profile), 20 Mar 2017 @ 5:21pm

    "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.

    reply to this | link to this | view in thread ]

  16. icon
    DB (profile), 20 Mar 2017 @ 5:28pm

    Re: “food grade” and “non toxic”

    There are many particulates that are non-toxic but quite harmful.

    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.

    reply to this | link to this | view in thread ]

  17. identicon
    Anonymous Coward, 20 Mar 2017 @ 5:32pm

    Re: Re: Re: judges

    What appears to you to be a lack of concern almost certainly is a whoops-got-that-one-wrong

    This was a little more significant and premeditated than an innocent little "whoopsie".

    fix-it

    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.

    now-move-on-to-the-other-458.

    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!

    reply to this | link to this | view in thread ]

  18. icon
    TechDescartes (profile), 20 Mar 2017 @ 5:42pm

    Re: Re: Re: Re: judges

    This was a little more significant and premeditated than an innocent little "whoopsie".

    Care to provide any support for that?

    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.

    No, District Judge Dee Benson signed this order and the previous one.

    reply to this | link to this | view in thread ]

  19. identicon
    Anonymous Coward, 20 Mar 2017 @ 5:50pm

    Re: Re: Re: Re: “food grade” and “non toxic”

    Pretty sure he's not eating them ;)

    reply to this | link to this | view in thread ]

  20. identicon
    Pixelation, 20 Mar 2017 @ 6:08pm

    I'm not laying on that!

    Not only do they have a white powdery substance on them, apparently there is poo on the mattress as well.

    reply to this | link to this | view in thread ]

  21. identicon
    Anonymous Coward, 20 Mar 2017 @ 6:17pm

    Containing a white powdery substance that could be harmful? Hope USPS doesn't mind if any mattresses are shipped through them.

    reply to this | link to this | view in thread ]

  22. identicon
    Anonymous Coward, 20 Mar 2017 @ 6:29pm

    Re: Re: Re: Re: Re: judges

    Care to provide any support for that?

    So you're suggesting that

    1. First amendment violations are insignificant, and/or

    2. This judge issues orders with no prior thought involved?

    If that's the case then I feel sorry for the parties to those other 458 pending cases.

    No, District Judge Dee Benson signed this order and the previous one.

    That makes a significant difference to my opinion of the matter. I would now say that the court redeemed itself.

    reply to this | link to this | view in thread ]

  23. icon
    TechDescartes (profile), 20 Mar 2017 @ 7:59pm

    Re: Re: Re: Re: Re: Re: judges

    Of course it's significant. But you said the judge's first order was "premeditated." Do you have any support for that?

    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.

    reply to this | link to this | view in thread ]

  24. identicon
    Pixelation, 20 Mar 2017 @ 10:28pm

    Re:

    Nothing to see here...this isn't the anthrax you're looking for.

    reply to this | link to this | view in thread ]

  25. identicon
    Anonymous Coward, 20 Mar 2017 @ 11:38pm

    Re: Re: Re: Re: Re: Re: Re: judges

    But you said the judge's first order was "premeditated." Do you have any support for that?

    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 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.

    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?

    reply to this | link to this | view in thread ]

  26. identicon
    Anonymous Coward, 21 Mar 2017 @ 5:25am

    '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?'

    why not? this tactic has worked well up to now for the entertainment industries!!

    reply to this | link to this | view in thread ]

  27. icon
    TechDescartes (profile), 21 Mar 2017 @ 6:21am

    Re: 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?

    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.

    reply to this | link to this | view in thread ]

  28. identicon
    Anonymous Coward, 21 Mar 2017 @ 10:02am

    Re: Re: “food grade” and “non toxic”

    So don't swallow the can

    reply to this | link to this | view in thread ]

  29. identicon
    Michael, 21 Mar 2017 @ 12:11pm

    Re: Re: Re: judges

    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.

    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.

    reply to this | link to this | view in thread ]

  30. identicon
    Anonymous Coward, 21 Mar 2017 @ 12:32pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: judges

    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.

    Let's see...

    But you said the judge's first order was "premeditated." Do you have any support for that?

    Are you not aware that people can see what you previously wrote? Or perhaps that was a different TechDescartes?

    reply to this | link to this | view in thread ]

  31. icon
    TechDescartes (profile), 21 Mar 2017 @ 1:00pm

    Re: Re: Re: Re: judges

    People who say things like this must have lived a life totally free from responsibility.

    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 acceptable excuse for forgetting about things like free speech and prior restraint when people's lives, livelihoods, and Constitutional rights are at stake.

    "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.

    reply to this | link to this | view in thread ]

  32. icon
    TechDescartes (profile), 21 Mar 2017 @ 1:14pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: judges

    Are you not aware that people can see what you previously wrote? Or perhaps that was a different TechDescartes?

    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:

    This was a little more significant and premeditated than an innocent little "whoopsie".

    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:

    "This judge issues orders with no prior thought involved?" "So let me ask you, do you have any support for the idea that this judge typically issues rulings without giving them any forethought?"

    Neither of those questions follow from the demand for evidence.

    reply to this | link to this | view in thread ]

  33. icon
    Bergman (profile), 21 Mar 2017 @ 4:28pm

    Even if it was contempt of court

    A judicial ruling that violates both the judge's oath of office and the constitution DESERVES contempt.

    reply to this | link to this | view in thread ]

  34. identicon
    Anonymous Coward, 22 Mar 2017 @ 6:28am

    Re: Even if it was contempt of court

    While I agree with that sentiment, it's still best to abide by the order regardless. Jusdes tend to get pissy when litigants violate even the most stupid of their orders, and it's not the best idea to make a judge angry if you want them to rule in your favor.

    reply to this | link to this | view in thread ]


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