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A federal New York judge held Tuesday that a state agency violated the free speech rights of a controversial author when it sent dozens of letters to cable broadcasters suggesting they stop running the writer’s infomercials. Northern District Judge Gary L. Sharpe gave New York state and its Consumer Protection Board until Friday to figure out how to remedy the problem created when, apparently aware that the plaintiff was going to seek an injunction, it sent letters to 102 broadcasters urging them to yank Kevin Trudeau’s infomercials from their programming. “I believe that letter is coercive,” Sharpe said during a hearing. Trudeau is the author of a book promoting natural cures and accusing government agencies of suppressing evidence on the viability of alternative health remedies in order to bolster the pharmaceutical industry. The Consumer Protection Board contends Trudeau’s claims are false and misleading. It issued press releases challenging Trudeau’s assertions, but then went a step further by drafting a letter to broadcasters — on letterhead invoking the auspices of Governor George E. Pataki and board Chairwoman Teresa A. Santiago — strongly suggesting they should drop the infomercials or, “at a minimum,” add disclaimers. With the plaintiff on his way to federal court to seek an injunction to bar distribution of the letter, the Consumer Protection Board last week quickly sent out 102 letters to broadcasters. With the letter, it included a press release in which it said Sharpe had declined to issue a restraining order early last week. Sharpe did indeed decline to issue a restraining order last Tuesday, but that decision was based on procedural matters rather than the merits. He issued the order later in the week. But dozens of copies of the letter had already gone out, and several broadcasting companies opted to pull the ad rather than potentially tangle with state government, according to the plaintiff’s counsel. On Tuesday, the parties reappeared before Sharpe for a lengthy debate and discussion over the nature of the communication from the state to broadcasters, culminating in a strong ruling for the plaintiff. Sharpe found for Trudeau even after holding him to a heightened standard in two regards. First, the court found that judicial restraint of a state agency is an “extraordinary and drastic remedy,” especially when the government is purporting to act for the public good — as is the case here. He said the plaintiff would need to scale that hurdle to prevail. Second, without deciding whether the speech at issue in Trudeau’s infomercials is fully protected “core” free speech, “commercial” speech or some “hybrid” of the two, Sharpe assumed it was commercial speech, the most regulable form of communication. Still, he held for the plaintiff. “The state has done more than was the least restrictive [means to its stated goal of warning the public about the contents of Mr. Trudeau's book],” Sharpe said. “Then, they compounded that with their Friday [press] release.” Sharpe agreed with the plaintiff’s lead counsel, David J. Bradford of Jenner & Block in Chicago, that the press release, touting a “federal court order” against Trudeau, implied there was judicial force behind the communication to broadcasters, when there was not. AUTHORITY OF BOARD At issue in part was the fact that the Consumer Protection Board has no regulatory powers. Assistant Attorney General Roger W. Kinsey stressed that the agency has no authority over broadcasters, and, consequently, there is no threat it could make to coerce them into abandoning the infomercials. “There’s nothing they can do beyond using their bully pulpit,” Kinsey argued. Assistant Attorney General Bridget E. Holohan also represented the agency. But Sharpe, referring to case law cited by Bradford and attorney Michael J. Grygiel of McNamee, Lochner, Titus & Williams in Albany, NY., said it is irrelevant whether or not the agency is actually empowered to take action against broadcasters (see Bantam Books v. Sullivan, 372 U.S. 58 [1963], and Okwedy v. Molinari, 333 F.3d 339 [2003]). “There is no question that the Consumer Protection Board does not have authority to enforce that which it states in its letters,” Judge Sharpe said. “But that is not the test. The test is whether a reasonable cable company … would feel objectively that adverse consequences could follow if it did not comply with what appears to be the demands of the letter.” Sharpe stressed that the Consumer Protection Board has every right to inform the public of its opinion of Trudeau’s theories and made clear that he does not think much of them himself. He also said if the agency had simply recommended disclaimers it would not have violated the First Amendment. But Sharpe said the call for censorship went too far. Grygiel had argued that the letter at issue went beyond persuasion and was coercive. The court agreed. The board is sticking by its opinion, according to executive director Caroline Quartararo. “We believe there are claims made in the infomercial that are not in the book,” Quartararo said, claiming, contrary to Sharpe’s finding, that the book does not provide the type of information on cures that Trudeau claims in his television ads. “The Consumer Protection Board believes that Kevin Trudeau is preying on the hopes and fears of very sick people, and it is shameful.”

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