Tag Archives: free speech


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

Free speech? Not with the three-tier system around

free speechPorn and protest is OK, but when it comes to free speech, the three-tier system has its own rules

Perhaps the best thing about this country is the First Amendment to the Constitution – that the government can’t restrict free speech unless there are special circumstances, like national security, public safety, and pornography. Even then, the bar is very high.

Except, of course, when it comes to the three-tier system. I’ve tried desperately over the years to make my peace with the way alcohol sales are regulated in the United States, but a recent federal appeals court decision in California made me realize I may never be able to do so. It is regulatory foolishness run amuck.

The case, involving a California law that forbids payments from alcohol manufacturers to retailers as part of the state’s version of three-tier, is incredibly dense unless you practice First Amendment law. But the outline is simple enough: An advertising network wanted to put digital ads in liquor stores. It would sell the ad space to booze companies, and then split the proceeds with the retailers.

This is common in grocery stores, where you’ll see digital displays touting soup or cereal or whatever. But to sell alcohol? Harrumph, said the California liquor cops. That’s because state law prohibits alcohol producers, importers, and wholesalers from “paying money” or providing “anything of value for the privilege of placing or painting a sign or advertisement…on or in any” liquor retailer.

California needs to keep the digital ads out of liquor stores to “advance a legitimate state interest” – in this case, protecting us from beer, wine, and spirits companies paying retailers to carry their products. In some warped way, the state sees the digital ads as bribes to retailers, where your local liquor store won’t carry Miller Lite unless its owner, the mega-billion dollar beer behemoth Molson Coors, buys an ad.

How silly does that make three-tier sound?

Or, as the blog’s official three-tier legal expert put it:

“This decision means all the three-tier system criers will be emboldened and use this as an excuse to make even more intrusive inroads on commercial and personal liberties. The argument is that the courts clearly favor the three-tier system and uphold anything done in its name, so anything a regulator cares to pull off can be justified by that all encompassing claim of ‘three-tier system.’ It is irritating that such claims and reasoning are so patently bogus and that matter so little. As in many things, the broad justification of ‘three-tier system!’ is an excuse not to think.”

So the New York Times can publish the Pentagon Papers, because that’s protected by the First Amendment. And you can buy and read pornography without fear of being arrested, because that’s protected by the First Amendment. And you can march in protest against the government, because that’s protected by the First Amendment.

But you can’t sell an ad to a wine company to put in a liquor store, because three-tier says no — and without three-tier the republic would collapse.

Champagne Jayne and the new censorship

Champagne JayneOct. 21, 2015 update: An Australian judge has ruled that Champagne Jayne Powell can keep her name, ruling that the French Champagne trade group “did not do enough to compel him to order Powell to cancel her business name or withdraw her trademark.” It’s not a complete victory, though. The judge also said that Powell had engaged in misleading or deceptive conduct in her “use, reference to, and promotion of sparkling wines while also using the Champagne name in relation to some of her social media posts,” and that part of the case will continue. She could still be forced to pay damages or make some other restitution.

Censorship used to be easy to understand. The secret police came to the door in the dark of night and you were never heard from again. Which is what makes the Champagne Jayne case so terrifying — the secret police have been replaced by lawyers working within the legal system of a Western constitutional democracy, and what they’re doing is as legal as it is morally reprehensible.

The French Champagne trade group, CIVC, is suing Jayne Powell, an Australian wine writer whose specialty is Champagne and sparkling wine and who calls herself Champagne Jayne. The trade group claims that Powell’s name, because she writes and teaches about other sparkling wine, violates the European Union ?s trade agreement with Australia that defines what can be called Champagne. CIVC wants an Australian court to make Powell stop using the name and anything associated with it, like email addresses, Facebook and Twitter accounts, and domain names. In this, they would force her out of business.

And, in a touch I love, Powell would have to “destroy all material marked with the name ?Champagne Jayne ?, including brochures, pamphlets, and other goods.” In other words, burning books.

This must seem bizarre to Americans, given our right to free speech under the First Amendment. But it shouldn’t. Even though Australia’s free speech protections aren’t as strong as those here, this case is not about free speech as we understand it. It’s about intellectual property, and how post-modern business is using that concept to carve out an exception to our traditional free speech protections. First Amendment law in the U.S. focuses on preventing the government from censoring speech, but says little about groups that aren’t the government from doing it.

Case in point: The Cristal-Cristalino lawsuit, in which the luxury French Champagne won a judgment against the cheap Spanish cava and forced Cristalino to change its name. The federal judge who decided in favor of Cristal said the case seemed silly on the surface, but that she had to go by the law, and the law said any confusion about the name, no matter how small, must be decided in Cristal’s favor. Shortly thereafter, I got a letter from Cristalino telling me I had to obey the judgment by never referring to Cristalino as Cristalino and by replacing any reference to the old name on the blog.

In other words, I am being censored by a French wine company, regardless of the First Amendment.

This is why I have written this post, contributed to Powell’s defense fund, and urge everyone to join me in boycotting Champagne. Powell can’t speak for herself — she is under a court-mandated gag order. And if the CIVC gets away with this, and it seems like it will, then it sets a precedent for any business that doesn’t approve of what someone writes, wine or otherwise. Don’t like what I say about your wine? Then sue, claiming I used your brand name incorrectly. Don’t like what the New York Times’ Mark Bittman says about your fast food? Then sue, claiming Bittman infringed on your intellectual property. (Which is my hint to the Times — this affects all of us who practice journalism, just like Times v. Sullivan.)

Also depressing: The lack of outrage from the Winestream Media, few of whom have come to Powell’s defense. In one respect, this isn’t surprising, given that its business model is based on sucking up to the wine business. But one would think that someone would remember Martin Niemoller.