Blogger Defeats Defamation Claims Over Posts Claiming a “Scam”–RainSoft v. MacFarland

Brian MacFarland runs a blog, For his own home, he held an in-home demonstration of a RainSoft water softener system by Oster, a salesperson at a local distributor, Basement Technologies. (I’m not sure about that brand!). MacFarland was skeptical about the sales pitch, but he also wrote a $100 deposit check (later refunded). He wrote a series of four skeptical and critical posts about the sales pitch and his dealings with the distributor. RainSoft sued him for defamation and Lanham Act false advertising. The court grants summary judgment to MacFarland.

Defamation. The court divides MacFarland’s statements into two buckets and finds that neither bucket qualifies for defamation. First, it says:

MacFarland’s use of the words ‘scam,’ ‘magic show,’ ‘bad logic,’ and the like similarly fall into the First Amendment’s safe harbor for imaginative expression and rhetorical hyperbole. Any reader of his RainSoft posts would reasonably understand these as metaphor.

The court amplifies: “Even before glimpsing Internet poetics in full bloom – the Facebook rants, Twitter meltdowns, and Instagram shade – the First Circuit recognized ‘the reality that exaggeration and non-literal commentary have become an integral part of social discourse.'”

The court then says the other complained-about statements constitute opinions. Further, “MacFarland’s opinions to which RainSoft objects here – including the charge of “false promises,” “high-pressure sales tactics,” and “slightly deceptive practices” – are all accompanied by their factual bases….[and] the law acts a bulwark against liability for the opinions MacFarland draws from these facts, no matter how unwarranted.”

Lanham Act. The court says MacFarland and RainSoft didn’t compete because “the only product MacFarland can be said to have sold readers is his advice, which they got for free.”

Indeed, the court says his posts may not constitute commercial speech at all. Of course they aren’t commercial speech, and it’s not even a close question, but the fact the court has to discuss this in any detail reflects the ridiculous scope creep of the Lanham Act generally into noncommercial activities. The court says:

Neither does the fact that MacFarland makes money from his guidance, either by running ads or receiving promotional kickbacks. If running ads were sufficient to make copy commercial speech, every newspaper article could be subject to Lanham Act liability – an absurdity whose coming the Supreme Court has already prevented [cite to the 1973 Pittsburgh Press case]…

The kickback revenue MacFarland generated – as a member of’s Associates Program – through hyperlinks to products sold by Amazon is not enough to turn his speech commercial, either. The hyperlinks were clearly incidental to his objective of providing consumers information. MacFarland’s customers were his readers, regardless of whether they clicked through to buy something from Amazon.

Conclusion. I appreciated the court’s wrap-up:

The First Amendment…protects us while we freely discuss how we should live and love, how to wage war and keep peace, how best to govern ourselves. And equally, or almost, how to filter tap water on a budget

While MacFarland got a good outcome eventually, this case should have been an easy anti-SLAPP motion that would have sped up resolution and awarded MacFarland his attorneys’ fees. Rhode Island’s anti-SLAPP law is antiquated, but it appears like it could have covered this case. I’m not sure why it was not helpful here. Certainly a modern federal anti-SLAPP law would have been effective.

Case citation: RainSoft v. MacFarland, 2018 WL 4696737 (D. R.I. Sept. 30, 2018)

Selected Related Posts:

Blogger Isn’t Liable for Anonymous Comments–Griffith v. Wall

Illinois Anti-SLAPP Law Doesn’t Apply To Law Firm Blog Posts–Bock & Hatch v. McGuireWoods

Blogger Doing Investigative Research Defeats Personal Jurisdiction–FireClean v. Tuohy

Law Professor Blogger Wins Anti-SLAPP Ruling, But It’s Hard To Celebrate The Win–Welch v. USD

* Legal Blog Faces Defamation Liability for Mischaracterizing Prior Legal Proceedings–Huon v. Above the Law

Don’t Roll The Dice On Defamation Suits Against Gripe Sites, Especially In California–Ocean’s Eleven v. Anders

Court Lauds Blogs “As A Means Of Free Dissemination Of News And Public Comment”–Comins v. Vanvoorhis

9th Circuit Issues a Blogger-Friendly First Amendment Opinion–Obsidian Finance v. Cox

Blogger Wins Lawsuit Over Gripe Post–BidZirk v. Smith