Petition for Writ of Certiorari — Michael Konowicz, aka Michael Phillips, et al., Petitioners v. Jonathan P. Carr, et al.

Supreme Court briefMay 5, 2021

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NO. 20-_____

In the

Supreme Court of the United States

MICHAEL KONOWICZ A/K/A

MICHAEL PHILLIPS AND ISARITHM, LLC,

Petitioners,

JONATHAN P. CARR, SEVERE NJ,

WEATHER, LLC, AND WEATHER NJ, LLC,

Respondents.

__________________________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Third Circuit

PETITION FOR A WRIT OF CERTIORARI

GEORGE BOCHETTO, ESQ.

COUNSEL OF RECORD

DAVID P. HEIM, ESQ.

JOHN A. O’CONNELL, ESQ.

BOCHETTO & LENTZ, P.C.

1524 LOCUST STREET

PHILADELPHIA, PA 19102

(215) 735-3900

GBOCHETTO@BOCHETTOANDLENTZ.COM

COUNSEL FOR PETITIONERS

MAY 5, 2021

SUPREME COURT PRESS

♦

(888) 958-5705

♦

BOSTON, MASSACHUSETTS

QUESTIONS PRESENTED

1. Whether the Court should revisit the fifty-year

old “actual malice” doctrine of New York Times Co. v.

Sullivan and its progeny to determine if the “original

meaning” of the First and Fourteenth Amendments

to the United States Constitution is consistent with

Constitutionalizing the common law tort of defamation,

and to determine whether the same level of “breathing

space” deemed necessary in 1964 continues to be

necessary for Twenty-First Century speech.

2. Whether this Court should step in and establish

a test for what constitutes “commercial speech” under

the Lanham Act, where the Courts of Appeal have

applied different standards to define the term.

PARTIES TO THE PROCEEDINGS

Petitioners

●

Michael Konowicz,

also known as Michael Phillips

●

isarithm, LLC

Respondents

●

Jonathan P. Carr

●

Severe NJ Weather, LLC

●

Weather NJ, LLC

iii

RULE 29.6 DISCLOSURE

Pursuant to S. Ct. R. 29.6, isarithm, LLC has no

parent corporation, and no public company holds 10%

or more of its stock.

LIST OF PROCEEDINGS

United States Court of Appeals for the Third Circuit

No. 20-1238

Michael Konowicz, a/k/a Michael Phillips; isarithim

LLC, Appellants, v. Jonathan P. Carr; Severe NJ

Weather, LLC, d/b/a Weather NJ; Weather NJ, LLC,

d/b/a Weather NJ

Date of Final Opinion: December 8, 2020

_________________

United States District Court

for the District of New Jersey

Civil Action No. 15-6913 (MAS) (TJB)

Michael Konowicz, a/k/a Michael Phillips; and isarithim

LLC, Plaintiffs, v. Jonathan P. Carr; Severe NJ

Weather, LLC and Weather NJ, LLC, Defendants.

Date of Final Opinion: January 7, 2020

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ........................................ i

PARTIES TO THE PROCEEDINGS ......................... ii

RULE 29.6 DISCLOSURE ........................................ iii

LIST OF PROCEEDINGS ......................................... iv

TABLE OF AUTHORITIES .................................... viii

OPINIONS BELOW ................................................... 1

JURISDICTION.......................................................... 1

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED .................................. 2

STATEMENT OF THE CASE .................................... 3

A. Basis for Jurisdiction in the Court of First

Instance ............................................................. 3

B. Relevant Facts .................................................. 3

1. Carr’s Attacks on Konowicz........................ 4

2. Carr’s Statements About His Competitor,

Konowicz, Were False ................................. 7

a. Konowicz Is a Professional Meteorologist, Contrary to Carr’s Statements .... 7

b. Konowicz Is a Member of the AMS,

Contrary to Carr’s Statements ............. 9

Carr Admitted He Made No Attempt

to Determine the Truth of His

Defamatory Statements ...................... 11

3. Carr’s Republication ................................. 11

C. Relevant Procedural History and Rulings .... 12

TABLE OF CONTENTS – Continued

Page

SUMMARY OF ARGUMENT .................................. 13

REASONS FOR GRANTING THE PETITION ....... 14

NEW YORK TIMES CO. V. SULLIVAN AND ITS

PROGENY REQUIRES REVISION ......................... 14

A. The “Policy-Driven” Justifications for

New York Times Were Not Tied to

History and the Original Meaning of

the First Amendment ............................... 16

B. The Policy Justifications Espoused by

the New York Times Court Are Less

Relevant in Today’s “Information Age”.... 20

C. Solutions to the New York Times

Problem ......................................... 26

II. THIS COURT’S DEFINITION OF COMMERCIAL

SPEECH AND THE LANHAM ACT ........................ 30

III. A WRIT OF CERTIORARI IS JUSTIFIED UNDER

RULE 10(A) AND RULE 10(C) ............................ 35

CONCLUSION.......................................................... 36

vii

TABLE OF CONTENTS – Continued

Page

APPENDIX TABLE OF CONTENTS

OPINIONS AND ORDERS

Opinion of the United States Court of Appeals for

the Third Circuit (December 8, 2020) ................ 1a

Memorandum Opinion of the United States

District Court for the District of New Jersey

Filed Under Seal [Unsealed]

(January 7, 2020).............................................. 12a

Memorandum Opinion of the United States

District Court for the District of New Jersey

Filed Under Seal [Unsealed] (July 31, 2019) .. 17a

Order of the United States District Court for the

District of New Jersey (July 31, 2019) ............ 36a

Memorandum Opinion of the United States

District Court for the District of New Jersey

Filed Under Seal [Unsealed] (May 31, 2019) .. 38a

Order of the United States District Court for the

District of New Jersey Granting Defendants’

Motion for Summary Judgment

(May 31, 2019) .................................................. 77a

most popular meteorologist.”1

Konowicz maintains Facebook and Twitter

accounts, as well as a website dedicated to providing

weather and climate related material. He and other

1 Available at https://www.youtube.com/watch?v=Zf6DOrmfg20&

t=14s.

Weatherboy meteorologists have also made appearances

at community events, and have visited local schools

to teach students about weather and climate issues.

Konowicz has provided weather-related services to

the Borough of Spotswood in New Jersey. In fact, the

Mayor of Spotswood wrote to Plaintiff: “For almost

10 years, you have provided my administration and

the residents of Spotswood with exceptionally accurate

weather forecasts and data.” (JA 769 (Carr dep., 171172); JA 692).

Finally, despite Carr’s unsubstantiated claims,

Konowicz fits squarely within the definition of

“meteorologist.” Although Konowicz does not have a

bachelor’s degree in meteorology, he has gained

sufficient knowledge both through his studies at

Mississippi State, and through professional experience

to qualify as a meteorologist. He is also a “professional”

meteorologist as he has been paid for providing

weather-related services. (JA 773-75, 692).

Carr has been provided with a copy of Konowicz’s

educational credentials and evidence of his professional

experience. Carr no longer disputes that Konowicz

has a Certificate in Meteorology from Mississippi State.

(JA 753 (Carr dep., p. 29)). Yet Carr has never made

any attempt to correct his previous statements and

still refuses to print a retraction. (JA 753 (Carr dep.,

p. 29-31)).

b. Konowicz Is a Member of the AMS,

Contrary to Carr’s Statements.

As previously mentioned, on December 8, 2014,

Carr posted on his Twitter account that Konowicz

had “[N]o degree or AMA[sic] record.” On February

21, 2015, Carr again posted on Twitter that Konowicz

was “[n]ot a member of AMS.” On June 25, 2015,

when Carr published his article about Konowicz on

his website, he stated, “[t]he American Meteorological

Society currently has zero evidence of him.” (JA 693

¶ 23-24, JA 694 ¶ 35).

These posts by Carr are completely and categorically false. Konowicz has been a member of the

AMS since his freshman year in college. (JA 691

¶ 11). Carr finally acknowledged that Konowicz was

a member of the AMS at his deposition. (JA 753

(Carr dep., p. 29)). He admitted that he had seen

Konowicz’s Certificate of Membership from the AMS

in approximately July 2015. (JA 753).

Prior to publishing these completely false statements, Carr did not reach out to Konowicz to inquire

about Konowicz’s AMS Membership, nor to ask him

for any verification or proof that he was, in fact, a

member of the society. (JA 751-53, 768 (Carr dep., p.

24-28, 31-34, 140)).

Although Carr did not ask Konowicz about the

truth or falsity of any of the damaging statements

that he was publishing, he did send Konowicz a private

message just before publishing the article on June

25, 2015. In that message, Carr merely stated, “This

is going to sting but you brought it upon yourself.”

(JA 767-68 (Carr dep., p. 135, 139)). Carr’s feelings of

ill will toward Konowicz, and his desire for revenge,

are abundantly clear in that message.

Despite seeing incontrovertible, documentary

evidence of Konowicz’s AMS Membership, and despite

Konowicz’s requests that he print a retraction, Carr

never made any attempt to correct the false information

that he disseminated. (JA 753 (Carr dep., p. 29-31).)

c. Carr Admitted He Made No Attempt to

Determine the Truth of His Defamatory

Statements.

Carr’s defamatory posts commenced as early as

January 2014 and continued through June 2015.

Carr testified at his deposition that he made no

attempt to reach out to Konowicz to inquire as the

truth or falsity of these statement prior to posting.

(JA 768 (Carr Dep., p. 139-140)). Carr made no

attempt to contact Konowicz to inquire as to whether

Konowicz was a member of AMS, whether Konowicz

had any formal education or training in meteorology,

and the extent of Konowicz’s meteorological experience.

Id. He made no attempt to verify the information in

his posts by reaching out to Konowicz or to third

parties where possible. Id. By the time Carr published

the Answer and Counterclaim on or about November

7, 2016 (JA 56-285), he was fully aware that all of his

posts contained false statements of fact. Id.

3. Carr’s Republication

Konowicz sent Carr two cease and desist letters,

one in July 2015 (JA 846-852) and another in February

2016 (JA 854-931), wherein Konowicz provided overwhelming evidence of the falsity of Carr’s statements

by way of documents as well as video and audio clips of

Konowicz actually performing on air as a broadcast

meteorologist. (JA 695 ¶ 38, 845-931.) Each cease and

desist letter demanded a retraction and the removal

of the false statements from Carr’s social media. Id.

Finally, after Carr was served with Konowicz’s

Complaint and made aware of all the inaccuracies in

his postings through the Complaint and the cease

and desist letter of July 2015, he re-published his

Answer with Counterclaim in an online posting on or

about November 10, 2015, containing all of the same

defamatory statements, online, including his June

25, 2015 Kaboom article containing the many false

statements described above. (App.79a-93a).

Relevant Procedural History and Rulings

Carr refused to retract or to remove his knowingly

false statements, and as a result, Konowicz was forced

to file this action in District Court seeking damages

for Defamation (Count I), Lanham Act Violation

(Count II), and Common Law Unfair Competition

(Count III). Carr filed an Answer with Counterclaim

on or about November 10, 2015, which repeated all of

the previously mentioned defamatory statements about

Konowicz.

Carr filed a motion for summary judgment, which

the District Court decided on May 31, 2019, dismissing Konowicz’ claims because there was insufficient

evidence the defamatory statements were published

with “actual malice.” The District Court separately

dismissed the Lanham Act claims, ruling Carr’s

statements were not “commercial speech.” After a

subsequent motion to correct the judgment filed by

Konowicz, decided on January 7, 2020, Konowicz

filed an appeal to have the District Court’s disposition of his affirmative claims reversed. Konowicz’s

notice of appeal was timely filed on February 3, 2020.

(JA 1240-45.)

On appeal, the Third Circuit Court of Appeals

affirmed the District Court’s grant of summary judgment against Konowicz on all but one part of his

defamation claims, and separately affirmed the District

Court on Konowicz’s Lanham Act claim.

SUMMARY OF ARGUMENT

Petitioner here respectfully submits that the

Court should grant this Petition and revisit the fifty

year-old, policy-driven decision of New York Times v.

Sullivan, 376 U.S. 245 (1964). Indeed, time is of the

essence, given the proliferation of “fake news” that is

spreading like wild fire over the internet, causing

real “harm to our democracy.” 2 Doing so would

enable the Court to consider whether: (a) such a rule

is justified by the original meaning of the Constitution;

and (b) even if there is a justification for some Constitutional rule, whether, given the dramatic change in

the “public square,” the rule should be altered to

strike a different balance that recognizes at least

some ability to protect a public figure’s reputational

harm and deter the spread of false speech.

Similarly, this Court should finally step in and

announce the standard for “commercial speech” under

the Lanham Act’s false advertising provision, 15 U.S.C.

§ 1125(a). The Courts of Appeal have generally adopted

a too-flexible set of standards for “commercial speech”

under that provision of the Lanham Act, and here,

the Third Circuit Court of Appeals found that the

statements of Carr disparaging Konowicz were not

commercial speech despite: (1) Carr earning $1,000

per month from weather services, (2) Carr’s article

“perhaps served as an advertisement and referred to

Carr’s services,” and (3) the record contained evidence

that Carr paid to promote his articles disparaging

2 John G. Roberts, Jr., 2019 Year-End Report on the Federal

Judiciary 1, 2 (Dec. 2019).

Konowicz on social media. This meets any reasonable

definition of commercial speech such that Konowicz’s

Lanham Act claims should have been addressed on

the merits, rather than dismissed on the threshold

issue of commercial speech.

REASONS FOR GRANTING THE PETITION

NEW YORK TIMES CO. V. SULLIVAN AND ITS PROGENY

REQUIRES REVISION.

The question of “actual malice” in this public

figure defamation case presents the classic problem

with the virtually impossible to satisfy standard this

Court announced in New York Times Co. v. Sullivan

over fifty years ago.3 Here, several of the defamatory

statements—collectively accusing the plaintiff of being

a professional fraud—were proven to be demonstrably

false. The defendant speaker performed virtually no

fact-checking or investigation before publishing. He

did not even seek to verify his assertions with the

defamed plaintiff. Worse, there was evidence of

personal animus, and even when presented with the

truth, the defendant refused to retract the false

statements; in fact, he double-downed by repeating

some of them. The lower courts nevertheless found

that the plaintiff could not unearth enough “clearly

convincing” evidence to rebut the defendant’s professed

3 New York Times Co. v. Sullivan, 376 U.S. 245 (1964); see also

Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S.

749, 771 (1985) (White, J., concurring in judgment) (referring to

“actual malice” as “almost impossible” standard to meet.).

subjective “belief” that many of his statements were

potentially true. Summary judgment on all but one of

the defamatory statements was thus affirmed.

This pattern has been repeated, over and over

again, in state and federal courts for the past halfcentury, resulting in legal scholars calling for reform

of what they call an “absolute immunity” defense

created by New York Times ’ impossible legal hurdle,

one that effectively separates public citizens from

their rights to protect themselves from false and

reputation-ruining speech.4 Some, like Justice Clarence

Thomas, have recently questioned the Constitutionality

of the “actual malice” doctrine, noting that New York

Times and the Court’s decisions extending it “were

policy-driven decisions masquerading as constitutional law.” 5 Other legal scholars have noted the

policy objectives of New York Times—protecting the

free expression of ideas by “carving out sufficient

breathing space”—are no longer relevant in this

technologically advanced, “information age,” where

“thanks to Google, such defamation becomes nearpermanent,”6 and where our society has become “awash

4 David A. Logan, Rethinking New York Times Co. v. Sullivan,

81 OHIO ST. L.J. 759, 763 (2020) (“Only one conclusion can be

drawn from the data: there is now what amounts to an absolute

immunity from damages actions for false statements, and this

evisceration of the deterrent power of defamation law has

facilitated a torrent of false information entering our public

square.”).

5 McKee v. Cosby, 139 S.Ct. 675, 676 (2019)(Thomas, J., concurring in the denial of certiorari).

6 Glenn Harlan Reynolds, Rethinking Libel for the Twenty-First

Century, 87 TENN. L. REV. 465, 478 (2020) (“Where once a

defamatory headline on a Tuesday was wrapped around fish by

Thursday, now it remains, evergreen, to be recalled whenever

in an unprecedented number of lies—some spewed

by foreign enemies targeting our electoral processes,

others promoted by our leaders, and millions upon

millions spread by shadowy sources on the internet

and, especially, via social media.”7

A. The “Policy-Driven” Justifications for New

York Times Were Not Tied to History and the

Original Meaning of the First Amendment.

In McKee v. Cosby, the petitioner, a defamation

plaintiff who alleged she was the victim of a sexual

assault by a comedic entertainer, brought suit against

the entertainer who defamed her by disseminating a

“defamatory letter,” which she claimed, “deliberately

distorted her personal background to ‘damage her

reputation for truthfulness and honesty.’” 8 The

petitioner requested the court to review the lower

courts classifying her as a “limited purpose public

figure.” Although Justice Thomas concurred in the

Court denying that petition, he wrote separately “to

explain why, in an appropriate case, we should reconthe defamed’s name is searched.”); Logan, 81 OHIO ST. L.J. 759,

760 (“Chief Justice John Roberts recently warned that ‘[i]n our

age . . . social media can instantly spread rumor and false

information on a grand scale,’ causing harm to our democracy.

The internet has become our ‘public square,’ something beyond

the imagination of the Supreme Court when it issued its

groundbreaking 1964 decision in New York Times Co. v. Sullivan.”)

(citing John G. Roberts, Jr., 2019 Year-End Report on the Federal

Judiciary 1, 2 (Dec. 2019), https://www.supremecourt.gov/

publicinfor/year-end/2019year-endreport.pdf; Packingham v.

North Carolina, 137 S.Ct. 1730, 1737 (2017)).

7 Logan, 81 OHIO ST. L.J. 759, 760-61 (citations omitted).

8 139 S.Ct. 675.

sider the precedents that require courts to ask it in

the first place.”9 Justice Thomas viewed the New

York Times decision as “policy-driven” and lacking

the necessary textual and historical basis in the Constitution. He described the New York Times decision

thusly: “Instead of simply applying the First Amendment as it was understood by the people who ratified

it, the Court fashioned its own ‘federal rule[s]’ by

balancing the ‘competing values at stake in defamation suits.’”10

Justice Thomas’ concurring opinion in McKee presents a textual, original meaning analysis. “[W]e

should carefully examine the original meaning of the

First and Fourteenth Amendments. If the Constitution

does not require public figures to satisfy an actual

malice standard in state-law defamation suits, then

neither should we.”11 He went on to note that the

Court’s decisions in New York Times and its progeny

“made little effort to ground their holdings in the

original meaning of the Constitution.” Noting the

various “policy reasons” cited in the Court’s New York

Times decision for the “newly minted actual-malice

rule,” Justice Thomas found the Court “made no

attempt to base that rule on the original understanding”

or the “historical record” that existed at the time the

First and Fourteenth Amendments were ratified. In

fact, he noted, the Court acknowledged “the rule

enunciated in the New York Times case is ‘largely a

judge-made rule of law,’ the ‘content’ of which is

9 Id.

10 Id. at 676.

11 Id.

‘given meaning through the evolutionary process of

common-law adjudication.’”12

The “historical record,” however, is clear. “The

common law of libel at the time the First and Fourteenth Amendments were ratified did not require public

figures to satisfy any kind of heightened liability

standard as a condition of recovering damages.

Typically, a defamed individual needed only to

prove a ‘false written publication that subjected him

to hatred, contempt, or ridicule.”13

Indeed, Justice Thomas’ thoughtful review of

the historical precedents brought to light that

even one of the Justices who concurred with the

majority in New York Times—Justice Byron White—

later “expressed doubts about the soundness of the

Court’s approach’ in New York Times ‘and about

some of the assumptions underlying it.’”14 Justice

White, in his dissenting opinion in Gertz v. Welch ,

“after canvassing historical practice under similar

state constitutions, treatises, scholarly commentary,

the ratification debates, and our precedent,” ultimately concluded that “[s]cant, if any, evidence exists

that the First Amendment was intended to abolish

12 Id. at 677 (quoting Bose Corp. v. Consumers Union of United

States, Inc., 466 U.S. 485, 501-502 (1984)).

13 Id. at 678 (quoting Dun & Bradstreet, supra. at 765

(White, J., concurring in judgment)) (citing 4 W. Blackstone,

COMMENTARIES *150 (Blackstone); H. Folkard, Starkie on

Slander and Libel *156 (H. Wood ed., 4th Eng. Ed. 1877)

(Starkie)).

14 Id. at 680-81 (quoting Dun & Bradstreet, 472 U.S. at 767

(White, J.) (concluding that the Court “struck an improvident

balance in the New York Times case.”).

the common law of libel, at least to the extent of

depriving ordinary citizens of meaningful redress

against their defamers.”15 In the end, Justice Thomas

concluded, correctly, that:

We did not begin meddling in this area until

1964, nearly 175 years after the First Amendment was ratified. The States are perfectly

capable of striking an acceptable balance

between encouraging robust public discourse

and providing a meaningful remedy for

reputational harm. We should reconsider our

jurisprudence in this area.16

Petitioner submits Justice Thomas was right,

and this Court would do well by following his clarion

call in accepting review of this case.

15 Id. at 680 (quoting Gertz v. Welch, 418 U.S. 323, 381 (1974)

(White, J. dissent).

16 McKee, 139 S.Ct. 682. Even so-called liberal scholars, such

as Cass Sunstein, a Harvard professor and Obama-era appointee,

agrees that the constitutional foundations of the New York Times

case are weak. Commenting on Justice Thomas’ concurrence in

McKee, Prof. Sunstein noted that “Thomas offers considerable

evidence that at the time of ratification, those who wrote and

ratified the Bill of Rights were comfortable with libel actions—

and that they did not mean to impose anything like the “actual

malice” standard.” Cass R. Sunstein, Clarence Thomas Has a

Point About Free - Speech Law , B LOOMBERG (Feb. 21, 2019,

11:38 AM), https://www.bloomberg.com/opinion/articles/2019-02-21/

clarence-thomas-has-a-point-about-free-speech.

B. The Policy Justifications Espoused by the

New York Times Court Are Less Relevant in

Today’s “Information Age”.

Apart from Justice Thomas’ original meaning

analysis, there are strong policy reasons for the

Court to revisit New York Times. As Justice Roberts

noted in his 2019 Year-End Report on the Federal

Judiciary, “[t]he internet has become our ‘public

square,’ something beyond the imagination of the

Supreme Court when it issued its groundbreaking

1964 decision in New York Times Co. v. Sullivan.”17

As one scholar recently and aptly concluded:

New York Times and its progeny made sense

in the ‘public square’ of an earlier era, but the

justices could never have foreseen the dramatic changes in technology and the media

environment in the years since, nor predict

that by making defamation cases virtually

impossible to win they were harming, rather

than helping self-government. In part because

of New York Times, the First Amendment

has been weaponized, frustrating a basic

requirement of a healthy democracy: the

development of a set of broadly agreed-upon

facts. Instead, we are subject to waves of

falsehoods that swamp the ability of citizens

to effectively self-govern. As a result, and

despite its iconic status, New York Times

17 John G. Roberts, Jr., 2019 Year-End Report on the Federal

Judiciary 1, 2 (Dec. 2019).

needs to be reexamined and retooled to

better serve our democracy.18

Constitutional scholars have begun to rethink

the need for and efficacy of the “actual malice”

standard, noting that “Sullivan and Gertz were

concerned with a world where only an exclusive few

newspapers or broadcasters could publish information

broadly to the public. Today, however, the media

has expanded to include web logs (‘blogs’), online

news and opinion publications, and message boards.”19

What is more, not only has new technology created

an influx of increased access to unlimited channels of

speech, “[t]he potential damage inflicted by defamatory

Internet speech is substantially magnified, as Internet

publications are open to a global audience and available

for a longer, sometimes permanent duration. Whereas

only 394 copies of the T IMES were circulated in

Alabama at the time of Sullivan, access to TIMES

articles is now solely limited by an individual’s

ability to use a computer or get to a newsstand.”20

18 Logan, 81 OHIO ST. L.J. 759; see also Susanna Frederick

Fischer, Rethinking Sullivan: New Approaches in Australia,

New Zealand, and England, 34 Geo. Wash. Int’l L. Rev. 101, 102

(2002)(“Serious problems have resulted for U.S. libel litigation,

including excess complexity, jury confusion, inconsistency with

Sullivan’s stated Madisonian rationale, and widespread dissatisfaction with the current state of law.”); Benjamin Barron,

A Proposal to Rescue New York Times v. Sullivan by Promoting

a Responsible Press, 57 AM. U. L. REV. 73, 89 (2007).

19 Benjamin Barron, A Proposal to Rescue New York Times v.

Sullivan by Promoting A Responsible Press, 57 AM. U. L. REV.

73, 89 (2007); Glenn Harlan Reynolds, Rethinking Libel for the

Twenty-First Century, 87 TENN. L. REV. 465, 480 (2020).

20 Barron, 57 AM. U. L. REV. 73, 89.

In this regard, it must be remembered that the

underlying policy of the New York Times decision

was somewhat narrow and based on the most pressing

problems of the time—the perceived need to protect

the speech of major media outlets from defamation

lawsuits designed by officials to stifle and deter

reporting the events occurring in the South during

the Civil Rights movement.21 It is certainly reasonable

to question whether that same rationale—the need

to protect the dissemination of news and facts from

the danger of libel suits—demands such a massive

shift in the common law in light of the dramatic technological advances of this Century. Indeed, with the

advent of the internet and technology, where virtually

every citizen is capable of spreading news as fast as a

thumb moves across a smart phone, the danger of libel

suits stifling information dissemination is basically

non-existent. Does twenty-first century speech still

need the same amount of “breathing space” it may

have needed in 1964?

Some scholars have also argued that technological

advances have made other policy justifications for

continuing the standard of New York Times and its

21 Logan, 81 OHIO ST. L.J. at 763-64 (“Southern anger at the

media prompted another indirect strategy: filing libel lawsuits

against national media organizations. Plaintiffs sought millions

of dollars in damages from CBS News, the Saturday Evening

Post, and Ladies Home Journal, but the primary target was the

‘national paper of record,’ the New York Times.”). Justice Hugo

Black, in his concurring opinion in New York Times, called

these libel suits a “technique for harassing and punishing a free

press,” noting “[t]here is no reason to believe that there are not

more such [suits] lurking just around the corner for the Times

or any other newspaper which might dare to criticize public

officials.” 376 U.S. at 294-95 (Black, J., concurring).

progeny no longer relevant. For example, in Gertz,

where the Court extended the New York Times

“actual malice” standard from public officials to “public

figures,” Justice Powell, writing for the majority,

noted that one of the justifications for placing a

heightened burden on public plaintiffs was that such

individuals placed themselves in the public limelight

and are subject to public scrutiny, thus assuming the

risk of false speech.22

But as one scholar points out, “[t]he prevalence

of Internet speech undermines the viability of Justice

Powell’s claims.”23 While it may be arguable that a

public plaintiff invites the scrutiny of traditional news

outlets “run by professional journalists [which] are

businesses that prize their reputations for accuracy,”

the same cannot be said about public plaintiffs

assuming the risk of being “defamed by an anonymous blogger or in a message board posting.” 24

The internet blogger clearly does not have the same

professional incentives to ensure accuracy. This

Court in 1964 simply could not have imagined the

phenomenon of the reckless internet blogger or troll,

which upends the underlying rationale espoused by

Justice Powell in Gertz.

Scholars have also argued that the continuing

application of the New York Times standard—which

essentially immunizes the dissemination of false

facts—is actually causing more problems than it fixes

in this new age of “fake news” and internet speech.

22 Gertz, supra. at 344.

23 Barron, 57 AM. U. L. REV. 73, 89.

24 Id.

For example, the New York Times standard actually

provides the speaker with a disincentive to investigate

and seek out corroborative facts. The “standard provides

reporters with a strong disincentive from investigating

news stories beyond the minimum necessary. The

more a reporter investigates, the more likely it is

that the reporter will discover some information that

casts the veracity of the story into doubt, which

would increase the likelihood of liability. Simply

failing to fully investigate a story, however, constitutes

mere negligence for which the reporter cannot be

held liable.”25 Similarly, editors and publishers are

discouraged from doing their jobs, “publishers are

incentivized to do little or no fact-checking, confident

that the more slipshod their investigation, the less

likely they are to be guilty of ‘actual malice.’ In short,

under an ‘actual malice’ regime, ignorance is bliss.”26

25 Id. at 85-86; see also Logan, 81 OHIO ST. L.J. 759, 777-78

(“Because ‘actual malice’ is a subjective standard, New York

Times ‘immunizes those who publish charges they believe to be

true even if the charges turn out to be false, [as well as those]

who publish charges they (subjectively) believe to be true even

if a reasonable person upon reasonable investigation would

(objectively) not believe those charges to be true.’ Simply stated,

this standard ‘incentivizes practices that increase the likelihood

that the press will publish injurious falsehoods.’”) (quoting

Fredrick Schauer, Slightly Guilty, 193 U. CHI. LEGAL F. 83, 93

(1993); Barron, 57 AM. U.L. REV. 73, 75.).

26 Logan, 81 OHIO ST. L.J. 759, 778 (citing Ronald A. Cass,

Weighing Constitutional Anchors: New York Times Co. v.

Sullivan and the Misdirection of First Amendment Doctrine, 12

FIRST AMEND. L. REV. 399, 409-10 (2014); William P. Marshall

& Susan Gilles, The Supreme Court, the First Amendment and

Bad Journalism, 1994 Sup. Ct. Rev. 169, 184 (1994).

A so-called Constitutional doctrine encouraging

false fact reporting, combined with citizens being

inundated with new and confusing information

broadcast over the internet superhighway at an

unprecedented rate, has created a social crisis of epic

proportions. Indeed, “the Court’s sweeping protection

of defendants imposes costs beyond the inability to

protect reputations: by inadequately deterring false

speech, the ability of citizens to effectively self-govern

is compromised.”27 As Justice White cogently observed

after he became a critique of the doctrine:

The New York Times rule . . . countenances

two evils: first, the stream of information

about public officials and public affairs is

polluted and often remains polluted by false

information; and second, the reputation and

professional life of the defeated plaintiff

may be destroyed by falsehoods . . . In terms

of the First Amendment and reputational

interests at stake, these seem grossly perverse

results.28

Recent polling of the American public demonstrates Justice White’s concerns over the “pollution”

of information have become a reality. Almost twothirds of U.S. adults report that fake news stories

create confusion about current issues and events.29

27 Logan, 81 OHIO ST. L.J. 759, 780.

28 Dun & Bradstreet, 472 U.S. at 769 (White, J., concurring).

29 Logan, 81 OHIO ST. L.J. 759, 781 (citing Michael Barthel, Amy

Mitchell, & Jesse Holcomb, Many Americans Believe Fake News

is Sowing Confusion, Pew Res. Ctr. (Dec. 15, 2016), https://www.

jounalism.org/20/16/12/15/many-americans-believe-fake-newsis-sowing-confusion/ [https://perma.cc/UBU3-4WT8].).

According to a recent Associated Press poll, millions

of Americans now find it is difficult to know whether

the information they encounter is accurate, which

creates unprecedented voter confusion and sows division in the Country.30 “‘Actual malice’ is no longer a

democracy-enhancing doctrine and as a result it

should be replaced by an alternative that better

balances reputations with the need to deter false

statements in our public debate.”31

C. Solutions to the New York Times Problem.

In considering what standard to adopt, the

Court has a few alternatives which would be less

draconian and would at least provide some incentive

for publishers to seek out the truth.

For example, based on Justice Thomas’ “original

meaning” analysis from McKee, the Court may not

desire to “meddle” in this area by continuing to

Constitutionalize the state common law of defama30 Id. (citing Nicholas Riccardi & Hannah Fingerhut, AP-NORC/

USAFacts Poll: Americans Struggle to ID True Facts, Associated

Press (Nov. 14, 2019), https://news.yahoo.com/ap-norc-usa-factspoll-132439294.html [https://perma.cc/F7GK-4JNU] (47% believe

it is difficult to know whether the information they encounter is

true, and almost 60% say they regularly see conflicting accounts

of the same set of facts); Sabrina Tavernise & Aidan Gardnier,

‘No One Believes Anything’: Voters Worn Out by Fog of Political

News, N.Y. TIMES (Nov. 18, 2019), http://www.nytimes.com/2019/

11/18us/polls-media-fake-news.html [https:/perma.cc/7QVP-ZXPR]

(“Just when information is needed most, to many Americans it

seems the most elusive. The rise of social media; the proliferation

of information online, including news designed to deceive; and a

flood of partisan news are leading to a general exhaustion with

news itself.”).

31 Logan, 81 OHIO ST. L.J. 759, 781.

tion. There are no historical precedents that justify

interpreting the First Amendment as a mandate to

provide federal immunity for the tort of defamation.

Libel was, at the time the Constitution was adopted

and the Bill of Rights was ratified, a purely common

law tort, and there is zero evidence the Founders

anticipated the First Amendment would virtually

eviscerate the common law tort. As Justice Thomas

concludes, “[t]he States are perfectly capable of striking

an acceptable balance between encouraging robust

public discourse and providing a meaningful remedy

for reputational harm.”32 In this regard, some States

have already adopted their own fault paradigm when

permitted to do so under existing New York Times

doctrine.33

Further, should the Court continue to wade into

the “policy driven” rationale by continuing to Constitutionalize the defamation tort—and Petitioner is not

suggesting the Court should—the Court need look

no further than Justice Harlan’s plurality opinion

in Curtis Publ’g Co. v. Butts, 388 U.S. 130, 156 (1967)

and his concurring opinion in Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 63 (1971). In Butts, the Court

addressed a public figure defamation case involving

a college athletic director falsely accused of fixing

football games. Butts was decided three years after

the Court decided New York Times. In his plurality

32 McKee, 139 S.Ct. 682.

33 In New York, for example, the State’s highest court has adopted

a “grossly irresponsible” standard, consistent with Gertz’s teaching

that allows States to adopt their own fault standard in private

figure defamation cases. Chapadeau v. Utica Observer-Dispatch,

341 N.E.2d 659, 572 (N.Y. 1975).

opinion, Justice Harlan articulated an objective standard that he argued should be applied to public

figures, stating that liability could be found if an

“investigation . . . was grossly inadequate in the

circumstances.”34 This objective standard was further

articulated by Justice Harlan in his concurring

opinion in Rosenbloom, where Justice Harlan advocated for the adoption of a modified scienter requirement for public figures: “highly unreasonable conduct

constituting an extreme departure from the standards

of investigation and reporting ordinarily adhered to

by responsible publishers.”35

Scholars have advocated for altering the “actual

malice” standard to a more objective standard such

as Harlan’s in Butts and Rosenbloom. The Harlan

standard is still higher than a mere negligence

standard, but strikes “a better balance between the

competing interests at play and lessen[s] the flow of

falsehoods into our public debate.”36 Further, the

34 Butts, 388 U.S. at 156. In Butts, four of the nine Justices

joined Justice Harlan’s plurality decision. Chief Justice Warren

wrote his own plurarlity opinion, which refused to backtrack

from the “actual malice” New York Times standard.

35 Rosenbloom, 403 U.S. at 63 (Harlan, J., concurring). The Court

could further decide whether this objective, “substantial departure”

standard would only apply to public figures—leaving intact the

New York Times “actual malice” standard for public officials—

or whether it would apply to both public figures and officials.

36 Logan, 81 OHIO ST. L.J. 759, 784; see also Glenn Harlan

Reynolds, Rethinking Libel for the Twenty-First Century, 87

TENN. L. REV. 465, 480 (2020)(“ . . . overturning or tightening St.

Amant , or applying a “reasonable person” standard for

investigating potentially defamatory claims before publication

would substantially change the balance of power, and in a way

that would be unlikely to raise a fuss.); Barron, 57 AM. U. L. REV.

“reasonable journalistic standard” is something readily

understandable by courts and juries a like as it is

“widely deployed in tort law.”37

We live in a society now surrounded by actors

publishing false statements on the internet through

myriad means and to a dizzying variety of ends.

Some of those actors, like Carr in this case, and like

Iago in OTHELLO, deploy sly slander to harm others.

Iago, however, was correct about one thing: a person’s

good name has value:

Good name in man and woman, dear my

lord, Is the immediate jewel of their souls.

Who steals my purse steals trash; ‘tis

something, nothing;

‘Twas mine, ‘tis his, and has been slave to

thousands;

But he that filches from me my good name

Robs me of that which not enriches him,

And makes me poor indeed.

OTHELLO, Act III, scene 3, l. 155-61. Individuals who

venture, like Othello, or like Konowicz in this case,

73, 110 (noting England’s “ . . . House of Lords created an “elastic”

ten-factor balancing test that looks to the public importance of

the speech’s subject matter and the reasonableness of the

speaker’s conduct.”)

37 Reynolds, 87 TENN. L. REV. 465, 480 (“The ‘reasonable person’

standard is widely deployed in tort law and should be readily

understood by courts and juries. To the extent that standard

good practices of journalism help to demonstrate reasonableness,

such a change would encourage news organizations to adopt—and

adhere to—those sorts of practices, something would redound to

the benefit of both journalists and those whom they cover.”)

into the public office or enter the arena of public life

cannot stop the rapid spread of a lie told about them.

The response of the defamed, in a letter to the editor,

is just a whisper in a raging storm of lies. It is now

literally true that the lie goes around the world

before the truth gets out of bed. These individuals,

like Konowicz, need a remedy in the form of an

effective way to hold liars accountable for launching

the lie in the first instance. This is more important

now than at any point in our history. The Constitution,

as written and framed by the Founders, preserved

our rights to our good names. New York Times v.

Sullivan, like Iago, took those rights away.

II.

THIS COURT’S DEFINITION OF COMMERCIAL SPEECH

AND THE LANHAM ACT.

The Court of Appeals erred fundamentally in

affirming summary judgment on Konowicz’s Lanham

Act claim on the basis that Carr did not engage in

commercial speech. The Third Circuit Court of Appeals,

in fact, took two opposing definitions of commercial

speech developed among the Circuit Courts and created

a false equivalence between them, in a manner that

threatens to wipe out the standards this Court has

applied to ascertain whether speech is commercial, and

erase the Lanham Act’s protections for persons

attacked by false advertising on the internet or in

social media.

This Court has applied various standards to

define the term “commercial speech.” In one of the

seminal cases establishing First Amendment protection

for commercial speech, this Court referred to it as

speech that did “no more than propose a commercial

transaction.” Virginia State Bd. of Pharmacy v. Virginia

Citizens Consumer Council, Inc., 425 U.S. 748, 762

(1976); United States v. United Foods, Inc., 533 U.S.

405, 409 (2001). Commercial speech has also been

defined, in the context of First Amendment challenges,

as “expression related solely to the economic interests

of the speaker and its audience.” Central Hudson Gas

& Elec. Corp. v. Public Serv. Comm’n of New York,

447 U.S. 557, 561 (1980).38 In Bolger v. Youngs Drug

Products Corp., this Court recognized the Virginia

State Board of Pharmacy definition as the core concept

of commercial speech, but expanded the definition to

include advertisements that refer to a specific product

in conjunction with an economic motivation; although,

importantly, this Court reserved on whether reference

to a particular product or service was a necessary

component of commercial speech, and noted that not

every element needed to be present. 463 U.S. 60, 66-67,

n.14 (1983).

As the legislative history was less than helpful

to courts that examined it,39 and the doctrine of

commercial speech has been developed in First

Amendment jurisprudence rather than Lanham Act

jurisprudence, the Courts of Appeal looked to the test

developed in Bolger in interpreting the term “commercial speech” in the Lanham Act, while still hearkening

back to the “common-sense” definitions this Court

has used in other cases. See Zauderer v. Office of

38 Justices Blackmun and Rhenquist did not join the opinion of

the Court, and Justice Stevens in his concurrence declined to

accept this definition of commercial speech (or another similar

formulation used in this case). 447 U.S. at 573, 579-580, 583.

39 See, e.g., Seven-Up Co. v. Coca-Cola Co., 86 F.3d 1379, 1383

(5th Cir. 1996).

Disciplinary Couns. of Supreme Ct. of Ohio, 471 U.S.

626, 637 (1985); Ohralik v. Ohio State Bar Ass’n, 436

U.S. 447, 455-56 (1978).

As a result, the current test could be described

as a two-step examination: (1) does the speech propose

a direct commercial transaction, or (2) does Bolger

otherwise bring the statement within the definition

of commercial speech, with or without direct reference

to a product or service.

The circuits have not applied the two-step, post-

Bolger test for commercial speech adequately or fairly,

as evidenced by Konowicz’s claims here. The District

Court in this case actually applied the Eleventh

Circuit’s commercial speech standard, which differs

radically from that of the Third Circuit; despite this,

the Third Circuit Court of Appeals erroneously affirmed

despite Bolger plainly applying to the false advertising

by Carr. This case presents a unique opportunity for

the Court to solidify a definition of commercial speech

on social media by reaffirming the concepts in Bolger.

The facts of this case were clear on one issue:

even as the Court of Appeals examined them, Carr

made at least one false statement about a competitor

and it was compelled to vacate, and remand for further

proceedings on the state-law defamation claim of

Konowicz. (App.2a, App.8a-9a). The evidence was

unrebutted that Carr earned $1,000 per month from

his weather activities, and the Court of Appeals

accepted that the statement it found false “appeared

within an article that perhaps served as an advertisement and referred to Carr’s services.” (App.10a).

Despite these facts meeting the facial requirements

of Bolger—economic motivation, advertisement, and

mention of a service—the Court of Appeals affirmed

summary judgment on the basis that Carr had not

engaged in commercial speech. Furthermore, ignoring

the footnote in Bolger reserving on the necessity of

reference to a product or service, the Court of Appeals

found that other statements of Carr (“December 2014,

March 2015, and June 2015”) could not qualify as

commercial speech despite the existence of Carr’s

advertisements with economic motivation to falsely

attack a competitor.

This is ironic, because the Third Circuit Court of

Appeals addressed the issue of whether non-traditional

commercial speech, an infomercial-like program, met

the test for commercial speech under the Lanham

Act in Facenda v. N.F.L. Films, Inc., 542 F.3d 1007,

1017, n.6 (3d Cir. 2008). In addressing whether the

infomercial-like program was commercial speech, the

Third Circuit assessed it using the Bolger factors.

Facenda, 542 F.3d at 1017. Facenda presented what

the Court of Appeals found to be a novel issue, in

that the program in question was a “making of” documentary for a video game, where the speaker (NFL

Films) had only an indirect licensing interest in the

success of the game. It examined the commercial speech

factors and found that a marketing effort that looked

like an “infomercial,” disparaged earlier products, and

the indirect interest in the commercial effort sufficed

for commercial speech to be found. Id. at 1017-18.

Carr’s conduct in this case fits squarely within

commercial speech and the “indirect financial motivation” analysis of Facenda. Carr actually used the June

2015 “Kaboom” article as advertising—paying for it

to appear to readers—thus satisfied the first element.

(JA 696 ¶ 36.) Then, instead of promoting a single

product for its own market advantage like in Facenda,

Carr issued false statements about Konowicz, secure

in the knowledge that Carr would benefit by the

defamation of a local competitor. This kind of “indirect

financial motivation” was sufficient for the Third

Circuit to find commercial speech in Facenda, and it

compels a finding of commercial speech here. Furthermore, this “indirect financial motivation” supplies

the third element of the “commercial advertising or

promotion” test, as it expands reliance on Carr’s

services if Carr’s local competition suffers from a

reputational disability.

The Third Circuit Court of Appeals, however,

deviated from the Bolger standard and cited to a Fourth

Circuit standard, which used the familiar Bolger

factors but added something not found in Bolger, an

ambiguous concept proposing that the reviewing court

examine: “(4) ‘the viewpoint of the listener,’ i.e.

whether the listener would perceive the speech as

proposing a transaction.” Radiance Found., Inc. v.

N.A.A.C.P., 786 F.3d 316, 331 (4th Cir. 2015).

This use of a different, out-of-circuit standard,

alien to the precepts of Bolger also occurred at the

District Court in this matter. Using Edward Lewis

Tobinick, MD v. Novella, 848 F.3d 935, 939 (11th Cir.

2017), (hereinafter Tobinick), the District Court found

Defendants’ statements were not commercial speech.

Specifically, it found that as the December 2014 and

February 2015 statements of Defendants do not refer

to a product or service or propose a commercial transaction, but rather disparaged Plaintiffs, they could not

meet the test for commercial speech. (App.73a-74a).

With respect to the March 2015 statement and

June 2015 article, the District Court held that under

Tobinick neither could be commercial speech (despite

meeting the Bolger test). (App74a-75a). The Opinion

on the motion to correct the judgment simply reiterated

these findings. (App.15a-16a).

Tobinick’s analysis of the three factors diverges

from the Third Circuit Court of Appeal’s teaching

from Facenda—and thus from Bolger. In Tobinick,

educational articles that mention the different services

offered by two physicians, disparaging one, results

in a finding of non-commercial speech—contrary to

Facenda. 848 F.3d at 950-51. There is, therefore, in

this one case, evidence of the “wild west” approach to

definitions of commercial speech in the Lanham Act

context, which requires correction by this Court.

III. A WRIT OF CERTIORARI IS JUSTIFIED UNDER RULE

10(a) AND RULE 10(c).

This Court faces, and will continue to face, the

changing landscape of fake news, defamatory statements, and commercial speech in the information age,

especially through the use of social media. It is,

therefore, respectfully requested that this Court take

up consideration of this matter under S. Ct. R. 10(a)

and 10(c).

CONCLUSION

For the reasons heretofore given, the writ of

certiorari should be granted.

Respectfully submitted,

GEORGE BOCHETTO, ESQ.

COUNSEL OF RECORD

DAVID P. HEIM, ESQ.

JOHN A. O’CONNELL, ESQ.

BOCHETTO & LENTZ, P.C.

1524 LOCUST STREET

PHILADELPHIA, PA 19102

(215) 735-3900

GBOCHETTO@BOCHETTOANDLENTZ.COM

COUNSEL FOR PETITIONERS

MAY 5, 2021

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.