Penrose Hill v. Mabray: Did wine journalism win a significant legal victory?

Penrose Hill v. MabrayFederal court judge in Penrose Hill vs. Mabray says it’s likely wine bloggers enjoy the same First Amendment protections as traditional journalists

A federal judge has ruled that a winery’s attempt to sue for critical comments on Twitter and in a blog post probably wouldn’t survive a First Amendment challenge. In doing so, this may be one of the first times a judge has said that the same constitutional protections that apply to print journalism also apply to social media.

The case, Penrose Hill v. Mabray, was actually decided on a technicality; U.S. District Judge Donna Ryu ruled that the plaintiff waited too long to bring the lawsuit under California law. But in her ruling, Judge Ryu said that though Penrose Hill and its CEO, Philip James, were free to sue again, she doubted that even an amended suit would withstand constitutional scrutiny as it applies to free speech.

The case dates to 2017, when Paul Mabray used the phrase a “faker, not a maker” in a blog post discussing winery marketing practices. Penrose Hill is is a bulk producer that also runs a wine club, and its wine club appeared in the post (and in a tweet) as an example of wine clubs that promise more than they offer.

Mabray is a long-time wine industry e-commerce expert, and he has been on the blog many times. In fact, I wrote about the “faker, not a maker” post and was more than a little concerned when Penrose Hill filed its lawsuit this year. If Penrose Hill won, would I have to remove the post? Would I be liable for damages as well? Would I still be able to write posts like this about wine clubs? Or this, about Blue Apron wine?

Times v. Sullivan

That’s because free speech protections are well-defined for print and traditional journalism, thanks to the Supreme Court’s landmark Times v. Sullivan decision in 1964. But there is much more uncertainty about what’s protected on the Internet. In fact, a former newspaper colleague of mine was fired a couple of years ago for tweeting about President Trump; my friend’s critical social media post, said a New York court, enjoyed no such First Amendment protection.

So yes, that the judge dismissed the lawsuit is a victory for 21st century wine writing. I can continue to write the kind of criticism that benefits consumers without worrying that a producer will sue me because they don’t want an honest assessment of its product. As Mabray’s lawyer told Wine Industry Insight: “This is a victory for Paul, and not just for him, but for all people who engage in critical commentary over the Internet. … In addition, this decision confirms the broad protection, under the First Amendment, for expressions of opinion.”

But, despite that optimism, this is not a Times v. Sullivan landmark riling. It was decided on a technicality, and Penrose could re-file the suit and another judge could decide that the First Amendment doesn’t apply here. It’s worth noting that Mabray’s blog post has been removed; that never would have happened with a newspaper story.

In fact, for all of the concerns about any potential legal difficulties stemming from my three-tier reverse sting post, the penalty there – if I was even convicted – would be minor compared to losing the right to write wine criticism on the Internet. So let’s hope Penrose Hill v. Mabray goes no further than this, and that the courts continue the trend that started here.

Photo: “Courtroom” by srqpix is licensed under CC BY 2.0

3 thoughts on “Penrose Hill v. Mabray: Did wine journalism win a significant legal victory?

  • By Lewis Pwerdue - Reply

    Actually, NY Times v Sullivan and public figure issues were not considered by the judge even though Mabray argued for that in his briefs.

    In my article, I pointed out that — in her decision — U.S. District Judge Donna Ryu denied Mabray’s SLAPP complaint, ruling that a discussion of possible wine consumer harm over the lack of transparency in PL/CL (private label/control label) wines was not a valid topic of public concern to merit SLAPP consideration.

    Judge was short-sighted for failing to recognize that the false and deceptive practices of many PL/CL vendors are significant consumer fraud issues.

  • By Lewis Perdue - Reply

    Sorry, make a typo in my own name in previous post.

    To clarify SLAPP requirements … From my original piece (https://wineindustryinsight.com/?p=110108) on the lawsuit:

    “This explanation from the Marin County Bar Association (https://marinbar.org/news/article/?type=news&id=428) notes that:

    “To win an anti-SLAPP motion: “[F]irst, the defendant must make a prima facie showing that the plaintiff’s ‘cause of action . . . aris[es] from an act by the defendant ‘in furtherance of the [defendant’s] right of petition or free speech . . . in connection with a public issue.”

    In the judge’s decision, she found that the issues Mabray raised concerning transparency and other issues with some wione marketers were NOT in connection with a public issue .

  • By Paul Mabray - Reply

    Lewis, Thank you for the comments. Key clarification for anyone reading this blog and writing about wine and transparency, the judge ruled about the qualification of anti-SLAPP solely on the contents of the tweet not about the merits of wine and transparency.

    To quote, “[A] matter of public interest should be something of concern to a substantial number of people. Thus, a matter of concern to the speaker and a relatively small, specific audience is not a matter of public interest.” Weinberg v. Feisel, 110 Cal. App. 4th 1122, 1132 (2003) (internal citation omitted). In addition, there should be “some degree of closeness between the challenged statements and the asserted public interest.” Id. “[I]t is not enough that the statement refer to a subject of widespread public interest; the statement must in some manner itself contribute to the public debate.” FilmOn.com, 7 Cal. 5th at 150 (quoting Wilbanks v. Wolk, 121 Cal. App. 4th 883, 898 (2004)).

    Assuming without deciding that the topic of nontraditional business models for selling wine is a matter of public interest, the challenged statements in the Tweet do not have the requisite closeness to that issue. The Tweet simply asserts that private label wine “is more of a UK phenomenon than US” and relays Mabray’s opinion that it is not “bad as long as it has purpose & transparency.” The statements in the link preview refer broadly to “fakers” within the “new subscription economy” without explanation of those terms. A generic reference to transparency in the wine industry is exactly the kind of “broad and amorphous public interest” that courts have found not sufficiently connected to the specific statements at issue.
    closeness to that issue. The Tweet simply asserts that private label wine “is more of a UK phenomenon than US” and relays Mabray’s opinion that it is not “bad as long as it has purpose & transparency.” The statements in the link preview refer broadly to “fakers” within the “new subscription economy” without explanation of those terms. A generic reference to transparency in the wine industry is exactly the kind of “broad and amorphous public interest” that courts have found not sufficiently connected to the specific statements at issue.

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