Question: When is free speech NOT REALLY free speech?
Answer: Whenever an International Corporation (like CertainTeed) does not like what is said...
and a U.S. Court PROHIBITS all publications. All free speech then becomes DEPENDENT
on attaining a court Order for the PRE-APPROVAL (censoring) of all statements.
Warning: The pre-approval (censorship) process PREVENTS expression of "free speech" indefinitely.
CERTAINTEED CORPORATION v. SEATTLE ROOFBROKERS (2:09-cv-00563-RAJ)
CertainTeed Corporation (CertainTeed) is the largest manufacturer of asphalt roofing in the world.
Seattle RoofBrokers (SRB) was a roofing business, with one employee, operating in the Seattle area.
Seattle RoofBrokers business model was to provide roofing consumers with unbiased information on
the pros and cons of different material and product options... just like the information in this blog.
CertainTeed sued SRB for "false advertising" under The Lanham Act and Washington Consumer Protection
Act. On June 28th, 2010, the Court found, within the specific context, there were certain "false" statements
in several direct mail advertisements and in a single (1) sentence on the website. The Court found that these
statements were "false" because, within the specific context, they conveyed the idea that "all" (100%) or the
"majority" of CertainTeed shingles have failed, or will fail, within 15 to 20 years.
The Court noted: There is no dispute that CertainTeed roofing shingles have failed within 15 or 20 years.
However, SRB did not prove that "all", or "the majority" of, CertainTeed shingles fail within that time period.
There is no question CertainTeed products, including Presidential shingles, have been
the subject of "claims" by their purchasers. There is no question on this subject because
CertainTeed has provided data on the "claims" it has received on its products... Dkt. #55
It's important to note that SRB (admittedly) never intended to imply that ALL of CertainTeed shingles
have/will fail within 15 or 20 years - and, because nobody (including CertainTeed) tracks the performance
of CertainTeed shingles, it's impossible for anyone to prove what percentage of shingles fail before 20 years.
Even if CertainTeed's "claims" showed 80% of reported failures occur before 15 years (not saying they do),
that does not prove anything because not all failures are reported, it's possible that most premature failures
are never reported and, therefore, nobody can prove what percentage do fail (or don't fail) before 15 years.
Rather than focus on a particular statement, the court will instead consider them collectively
by assessing the truth of any statement (SRB) makes contending that all or most CertainTeed
roofs will not last beyond a particular term of years... Dkt. #55
Based on finding that SRB did not prove that "all" or "most" CertainTeed products fail within 15 or 20 years,
the Court issued a permanent injunction against publishing any "advertising promoting (the) roofing business"
which stated that "the majority" of CertainTeed roofs fail within any particular period of time.
The court enters the following permanent injunction. Defendant (SRB) is permanently enjoined
from making the following false statements in any advertising promoting his roofing business...
that CertainTeed products will fail or will not pass a resale inspection after 15 - 20 years, or any
other statements in which (SRB) represents that the majority of CertainTeed roofs will fail or
will not pass an inspection after a particular term of years. Dkt. #55
There are Two Questions which now arise:
(1) Does the Court's Injunction prohibit ALL statements regarding CertainTeed shingle failures - or only
those statements which represent that "all" or "the majority" of shingles fail before some specified time?
(2) Does an injunction against certain statements while "advertising a roofing business" mean there is also
some restriction on non-commercial (free) speech made AFTER that roofing business was dissolved?
These questions will never be resolved in an actual court trial - because, after the Court issued the Summary
Judgment (judgment made before a trial), CertainTeed requested that the case be Dismissed, and the Court
granted the Dismissal. Therefore, the June 28th Summary Judgment Order is (supposedly) the end of this
case and Final Judgment on the issues... Unless the Court now ADDS something AFTER Dismissal.
Answering the first question (what statements are not prohibited) is simple - and I will answer that now...
Answering the second question (can free speech be censored) is a more complex, and important, issue and
I will consider the options, and address possible answers - But, without a trial, a lot depends on the Court.
We do know that Americans are SUPPOSED to have a right to free speech and we ASSUME any Court
will be inclined to preserve some semblance of those free speech rights... But, first things first:
#1) WHAT STATEMENTS DID THE COURT NOT PROHIBIT?
While the Court prohibited statements representing that "all" or "the majority" of CertainTeed asphalt shingles
fail within 15 years - the Court also made it very clear that the order DID NOT provide CertainTeed with
some sort of "blanket protection" against any future advertising statements.
While CertainTeed complains (constantly) that advertising statements are being made which "explicitly single
out CertainTeed" including "such damning and unsubstantiated terms as failure, premature failure, defective,
history, pattern, widespread and pervasive," the court did not prohibit truthful statements of fact or opinions.
(SRB) can continue to target CertainTeed and its products via truthful statements or
statements of opinion. The court's review of (SRB's) advertisements suggests that many
of his statements are either truthful or non-actionable opinion that will discourage some
people from using CertainTeed products. Dkt. #55
[n]othing prevents (SRB) from advertising his business without false statements. If he wishes
to discuss what he perceives to be the disadvantages of asphalt shingles, he is free to do so.
If he wishes to extol the virtues of other products, he is free to do so. If he wishes to point
out that CertainTeed has paid some warranty claims on its products, he is free to do so.
If he wishes to point out that the period of CertainTeed's product warranty is tenuously related
to the lifetime of its products, he is free to do so. If he wishes to criticize CertainTeed's
warranty coverage as inadequate, he is free to do so. Dkt. #55
Context matters, as both CertainTeed and (SRB) should realize. At the pretrial conference,
CertainTeed repeatedly asserted that the court had enjoined (SRB) from using the words
"premature failure." It is mistaken. (SRB) can use whatever words he wishes, so long as
the document in which he uses them puts those words in a context in which they are not false. Dkt. 72
So... Clearly the court order did not prohibit all "advertising" statements regarding CertainTeed shingles,
but only those statements that represent that "all" or "the majority" of shingles fail before some specific time.
Expression of truthful statements of fact are (supposedly) still allowed, as is expression of personal opinions.
We invite the reader, CertainTeed and the Court, to study the language of this blog, or the SRB website,
to find any statement or representation of "all" or "the majority" of shingles. In fact, the current CONTEXT
specifically defines that statements Do Not represent "all" or "the majority" of (any manufacturer's) shingles.
By "history" of failure we do not mean there is 100% failure rate or that "the majority" of products
fail prematurely. Due to the nature of the roofing industry, the limitations of warranties and the fact
that many Americans move every 5 to 7 years, many (or most) premature failures are NOT reported
as warranty claims and, therefore, it's impossible to track the exact percentage of premature failures.
A "pattern" of shingle failure establishes a history of shingle failures.
So it's very clear the Court did not prohibit all "advertising" statements regarding CertainTeed shingles...
but only certain statements made within a specific context. And, since the June 28th Order, there has not
been even one statement found to violate the Order. While CertainTeed has not shown any "advertising"
statement violates the Order - the Court still prevents all advertising by delaying the pre-approval process.
While it is clear the Court DID NOT prohibit all "commercial" statements regarding CertainTeed shingles...
the Court is preventing expression of ANY advertising - until it "pre-approves" (censors) all the language.
The Court is preventing expression of ANY "advertising to promote the roofing business" until pre-approval
of ALL the language within these advertisements... but, is a "pre-approval" of advertising even constitutional?
Can any Court PREVENT a business from advertising unless and until the advertising receives pre-approval?
And, if that is allowed, can the Court PREVENT advertising for several months while considering approval?
It doesn't matter if the Court's plan to "pre-approve" advertising statements is a constitutional Order because,
while SRB was waiting on the Court to "edit" its advertising, the roofing business closed, for lack of business.
Now the question is: Can expression of "non-commercial" speech (such as speech in a blog) be prevented?
Does an Order against "advertising to promote a roofing business" suddenly transform into a(nother) Order
against all roofing discussion AFTER the roofing business has been closed - for weeks or months or years?
Can an (American) Court prevent expression of free speech while it "pre-approves" (censors) the language?
CertainTeed now argues that this author is not permitted to make "non-commercial" statements on roofing
unless they are pre-approved by the Court... Imagine, CertainTeed wants pre-approval (censorship) of all
"non-commercial" speech related to roofing, presumably for years or decades after the business was closed.
According to CertainTeed, the Court would have to pre-approve (censor) all statements made on this blog!
#2) DOES A COURT NEED TO PRE-APPROVE (CENSOR) SPEECH ON THIS BLOG?
Can the Court (constitutionally) Order that all speech on this blog, or anywhere else, needs "pre-approval"
before publishing? Can the Court simply prevent all "non-commercial" speech on roofing - simply because
it found that certain specific "advertising" statements incorrectly represented a "majority" shingle failure rate?
That is an question currently before the Court - Noted on the Motion Calendar for September 3rd, 2010.
To be clear - the Court has NOT declared all "commercial" speech is prohibited (except for the discussed
statements about "all" or "the majority" failure rate), that would clearly be an unconstitutional order. However,
the Court HAS declared that all website "advertising" must be pre-approved and this "pre-approval process"
(censorship) requires several months to attain... so far, the Court has gone 7 weeks without an "approval."
Moreover, the Court never Ordered "non-commercial speech" be prohibited, or censored... BUT the Court
has Ordered the "non-commercial" speech, that was published on a website August 12th, must be removed.
Apparently the Court will now determine if it will prohibit the expression of "non-commercial" (free) speech
on various internet websites - and possibly statements made on this blog! It is entirely possible the Court
will determine all of SRB's "non-commercial" statements about roofing must be "pre-approved" (censored).
It is possible that the Court will soon Order the statements on this blog must be "pre-approved" (censored).
Can an (American) Court prevent expression of free speech while it "pre-approves" (censors) the language?
It is possible that the Court will soon Order the statements on this blog must be "pre-approved" (censored).
And how would that work? Would the Court dedicate time each day or week to censor non-commercial
speech on this blog (and elsewhere)? Or would the Court continue to take months to censor the language?
Can any (American) Court prevent the expression of non-commercial speech for months - while censoring?
AGAIN, the issue is NOT regarding an Injunction prohibiting statements about "the majority" failure rate,
that issue was resolved with the original order - those statements have already been permanently enjoined.
The current issue is whether an American Court can prevent the expression of truthful statements of fact and
expression of personal opinions - while (for months) those statements are being "pre-approved" (censored)?
It is one thing to find that a certain statement, because of its specific context, is a "false advertisement".
It's altogether different to require ALL subsequent "commercial" speech must be "pre-approved" (censored).
It is beyond reason that any U.S. Court order all "non-commercial" speech must "pre-approved" (censored).
Clearly, CertainTeed wants the expression of all speech by SRB to be prevented. If that is not possible,
CertainTeed hopes to have the practice of "pre-approving" all advertising (commercial speech) transferred
into an order the Court also "pre-approve" (censor) non-commercial speech - because CertainTeed knows
this process of Court censorship will take several months to attain, and it offers numerous opportunities to
prevent free speech without having a trial.
If CertainTeed's position wins the day, for the first time in America, a Federal Court will be responsible for
ongoing censoring and approval of non-commercial speech before it can be published - including this blog.
If CertainTeed has its way, the free speech rights of ALL BLOGGERS will be subject to "pre-approval."
CERTAINTEED ARGUES - FREE SPEECH MUST BE DENIED (OR CENSORED)
CertainTeed has a long history, in this case, of presenting numerous lies and deceptions to the Court. [1]
Unfortunately, the Court has often failed to recognize these lies - or it has simply chosen to ignore them.
The most profound impression left by this suit is the complete lack of regard for Truth, Honor and Integrity
by both the "professional" lawyers and the Court. If I were a Judge I would not tolerate such behaviour,
but that's just me.
But CertainTeed's real expertise is in misdirection. In its latest Motion, CertainTeed carries-on at length
about how SRB must be prevented from continuing to make false statements... but it never (ever) identifies
which statements are allegedly false. CertainTeed continues to claim "SRB is making false statements" BUT
never identifies a specific statement because, by speaking in generalities, CertainTeed continues manipulation
of the Court - and continues to avoid any burden of proof.
In fact, what is happening is that CertainTeed cannot identify any "false" statement (or it undoubtedly would)
it just wants ALL statements to be prohibited - or at least subject to the never ending pre-approval process.
In order to convince the Court that SRB should be prevented from expression of "non-commercial" speech,
CertainTeed now makes two different arguments. The first argument is the roofing business was not closed.
It does not offer any proof of the allegation, but absence of proof has never stopped CertainTeed before.
CertainTeed simply states it "is likely" the roofing business is still operating. Or that (SRB) has "the hope
of being paid by someone." Incredibly, this is the quality of "evidence" supporting CertainTeed's claims.
Hopefully the Court will require more than some mere speculation before even considering such nonsense...
but we will see what the Court does as it has often shown an undue preference to support CertainTeed.
The second argument CertainTeed offers is: Even if the roofing business was closed several months ago
all the previous Orders against "advertising to promote the roofing business" still apply to non-commercial
speech after the business is dissolved. In other words, because the Court ordered all "advertising" must be
pre-approved before publishing on the business website, after the business is dissolved, all non-advertising
STILL falls under the Order - therefore, non-commercial speech is subject to "pre-approval" (censorship).
This is an interesting argument which, depending on the Court, may set a legal precedent on expression of
free speech. Eventually we may need to establish a new agency to "pre-approve" (censor) all publications.
Can we call the agency "Pre-Approval of Speech Is Certain (teed)"... or PASIC for short?
The Court must now decide whether:
(A) It will simply prohibit the expression of ALL "non-commercial" free speech.
The Court might Order that ALL expression of speech by SRB be prohibited. It that case this blog,
and all other published statements, must be immediately deleted and all free speech will be prohibited.
(B) It will require all "non-commercial" free speech be censored before publishing.
The Court might Order that ALL expression of speech by SRB is subject to "pre-approval" before
publishing. In that case this blog, and all other published statements, would be prohibited for weeks,
or months, required for the censoring. In other words, The Order would prohibit ALL free speech ...
But only for the Indefinite Period of Time necessary for the Court's "pre-approval" (censorship).
(C) It will require CertainTeed find a "false" statement BEFORE complaining further.
And, if it finds a "false" statement (representing "the majority" of shingles fail before 15-20 years),
CertainTeed would then be able to file with the Court for action against the specific alleged violation.
However, expression of free speech is NOT prevented unless, and until, there is a specific violation.
What a novel solution - Protection of free speech until AFTER some proof of falsity... Imagine that.
(D) Or, the Court could just declare, like CertainTeed, that the roofing business was never closed.
In that case, the Court can prohibit expression of true statements and opinions for several months
(just as it does now) while it "pre-approves" (censors) the expression of "free speech."
So, when is the expression of free speech NOT free?
When CertainTeed does not like what is said - and the Court PROHIBITS expression of ALL SPEECH
while it supposedly searches through the statements and opinions to "pre-approve" (censor) the speech.
Warning: The "pre-approval" (censorship) process PREVENTS expression of free speech for a few months.
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[1] CertainTeed has shown that it is more than willing to try to manipulate the Court with blatant lies and
deceptions on numerous occasions. In the latest case, Brian Esler is now trying to convince the Court
that SRB operated for several years (between 2000 and 2004) without using any Internet advertising.
Apparently, this is supposed to prove SRB did not dissolve the roofing business or support an idea the
Court did not impose an Undue Burden by preventing Internet advertising during weeks of censoring.
However, several weeks ago, Mr. Esler argued (at-length) that SRB's testimony must be ignored
because it only reflected the "biased" information received while employed at Statewide Systems
between 2000 and 2002. Moreover, several weeks ago, Mr. Esler argued (at-length) that SRB's
testimony about a photograph must be ignored since the photo was provided by a former employer,
DSK Home Improvement, (after being employed between 2002 to 2004) and that SRB had no
"personal knowledge" about the photo provided by this former employer.
So now Mr. Esler comes before the Court intentionally lying about certain facts regarding SRB's
previous employment - in order to further his current objectives. Obviously Mr. Esler will commit
whatever lie or deception is needed to advance his position, the question is: What will the Court do?
Will the Court continue to ignore or excuse Mr. Esler's latest attempts at manipulation through lies?
Will the Court (finally) hold Mr. Esler accountable for some basic level of truth, honor and integrity?
In this deception, as in many of his previous lies, Mr. Esler does not even present a convincing lie.
Mr. Esler demonstrates again, as he has demonstrated throughout the proceedings, his willingness
to lie with impunity - Because there is no danger that the Court will ever sanction his behaviour.
I suspect Mr. Esler, all CertainTeed's lawyers (and the Court), lecture their children and grandchildren
about the need for honesty, integrity, principles, honor and good moral character... while every day
they are committing (or allowing) blatant lies, deceit and deceptions in order to "win" the latest case.
What does it profit a man... ?
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