author: MURPHY, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellant, v. Trung N. DUONG; William M. Baker; Curtis A. Anthony, Defendants-Appellees.
    No. 16-6078
    United States Court of Appeals, Tenth Circuit.
    Filed February 14, 2017

      K. McKenzie Anderson, Assistant United States Attorney (Mark A. Yancey, Acting United States Attorney, with her on the briefs), Oklahoma City, Oklahoma, for Plaintiff-Appellant.
    Michael L. Brooks, The Brooks Law Firm (John W. Coyle, III, Coyle Law Firm, R. Scott Adams and Robert W. Gray, Adams & Associates, P.C., Oklahoma City, Oklahoma, Richard E. Stout, Stout & Stout, Edmond, Oklahoma, and Laura K. Deskin, Laura K. Deskin, PLLC, Oklahoma City, Oklahoma, with him on the brief), Oklahoma City, Oklahoma, for Defendants-Appellees.
    Before BRISCOE, EBEL, and MURPHY, Circuit Judges.
   MURPHY, Circuit Judge.

1. Introduction

Defendants were charged in a two-count superseding indictment with child sex trafficking and conspiracy to engage in child sex trafficking. See 18 U.S.C. §§ 1591, 1594 (2008). The superseding indictment asserted only one basis by which the government would seek to prove mens rea as to the child victim’s age — that Defendants had a reasonable opportunity to observe the child before engaging in a commercial sex transaction. Defendants moved to dismiss the indictment, arguing it failed to allege the mens rea element of child sex trafficking. The district court agreed and dismissed the indictment.

The government appeals, arguing it can meet its burden of proving the mens rea with regard to Defendants’ awareness of the child victim’s age by showing only that Defendants had “a reasonable opportunity to observe” the victim. See 18 U.S.C. § 1591(c). This court agrees and, exercising jurisdiction pursuant to 18 U.S.C. § 3731, reverses the judgment of the district court.

II. Background

In 2015, Defendants-Appellees, Trung N. Duong, William M. Baker, and Curtis A. Anthony, were charged by a federal grand jury with child sex trafficking and conspiracy to engage in child sex trafficking, in violation of 18 U.S.C. §§ 1591(a)(1), (a)(2), (b)(2), (c), and 1594. The only element of the charged crime relevant to this appeal is Defendants’ mens rea with respect to the victim’s status as a minor. See United States v. Brinson, 772 F.3d 1314, 1325 (10th Cir. 2014) (setting out the elements of child sex trafficking). The original indictment charged three bases to satisfy this element: (1) knowledge, (2) reckless disregard, and (3) a reasonable opportunity to observe the victim.

In December 2015, the government prosecuted a related case against a fourth defendant, Russell D. Ehrens. United States v. Ehrens, No. 15-CR-200-C (W.D. Okla.). Ehrens was charged with child sex trafficking. The indictment alleged he engaged in a commercial sex act with the child victim “knowing and in reckless disregard of the fact that [the victim] had not attained the age of eighteen years and having had a reasonable opportunity to observe [the victim].” In the Ehrens matter, the government sought a jury instruction permitting the jury to find that Ehrens had the required mens rea with respect to the victim’s age solely on the basis that he had a reasonable opportunity to observe the victim. The district court refused to give the instruction.

In response to the district court’s ruling on the proposed jury instruction in the Ehrens matter, the government sought a superseding indictment in the instant prosecution. As to the mens rea requirement with .respect to Defendants’ awareness of the child victim’s age, the superseding indictment charged only that Defendants had a reasonable opportunity to observe the victim. The government also filed a motion in limine, asserting it intended to prove Defendants’ mens rea by “eliciting] testimony and evidence that each Defendant had a reasonable opportunity to observe the child that he obtained, not that he had knowledge of that child’s age or was in reckless disregard of her age.” Accordingly, the government sought to preclude Defendants from asserting a mistake-of-age defense or arguing lack of knowledge of the victim’s underage status. The district court denied the motion, ruling the government was required to produce some evidence “regarding Defendants’ knowledge or reckless disregard regarding the victim’s age.” The court also dismissed the superseding indictment, concluding it failed to allege each element of the crime charged. In this appeal, the government challenges the district court’s ruling dismissing the superseding indictment.

III. Discussion

A. The Substantive Crime

This court reviews the dismissal of an indictment for abuse of discretion. United States v. Todd, 446 F.3d 1062, 1067 (10th Cir. 2006). Here, however, the government is asking this court to resolve the purely legal question of whether 18 U.S.C. § 1591(c) allows a child sex-trafficking conviction when the government proves the defendant had a reasonable opportunity to observe the victim, but does not also show the defendant knew or recklessly disregarded the underage status of the victim. Although this is a question of law reviewed de novo, “[a]n error of law is per se an abuse of discretion.” United States v. Lopez-Avila, 665 F.3d 1216, 1219 (10th Cir. 2011); see also Todd, 446 F.3d at 1067 (“We review the sufficiency of an indictment de novo.... ”).

“Any exercise in statutory interpretation must begin with an examination of the plain language at issue.” Tuckel v. Grover, 660 F.3d 1249, 1252 (10th Cir. 2011). During that examination, we must keep in mind that “[t]he plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.” Robinson v. Shell Oil Co., 519 U.S. 337, 341, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997). Having considered all these factors, this court joins the Second and Fifth Circuits in concluding § 1591(c) is not ambiguous and provides an additional method by which the government can satisfy the mens rea element with respect to the age of a victim of child sex trafficking. Accord United States v. Copeland, 820 F.3d 809, 813 (5th Cir. 2016); United States v. Robinson, 702 F.3d 22, 31 (2d Cir. 2012).

At the time the alleged criminal acts occurred, § 1591(a) provided that:

Whoever knowingly—
(1) in or affecting interstate or foreign commerce, ... recruits, entices, harbors, transports, provides, obtains, or maintains by any means a person; ... knowing, or in reckless disregard of the fact ... that the person has not attained the age of 18 years and will be caused to engage in a commercial sex act, shall be punished as provided in subsection (b).

18 U.S.C. § 1591(a). The parties differ over the interpretation of § 1591(c) which, on the relevant date, provided that:

In a prosecution under subsection (a)(1) in which the defendant had a reasonable opportunity to observe the person so recruited, enticed, harbored, transported, provided, obtained or maintained, the Government need not prove that the defendant knew that the person had not attained the age of 18 years.

Id. § 1591(c). Our analysis begins and ends with the statutory language.

18 U.S.C. § 1591 was promulgated in 2000 as part of the Trafficking Victims Protection Act of 2000 (the “TVPA”), Pub. L. No. 106-386, div. A, § 112(a)(2), 114-Stat. 1464, 1487-88 (Oct. 28, 2000). A stated purpose of the TVPA was to “combat trafficking in persons, especially into the sex trade, slavery, and involuntary servitude.” 114 Stat. at 1464. In conformity with that purpose, § 1591 was added to Title 18 of the United States Code to provide federal criminal penalties for individuals who force or coerce a person, to engage in a commercial sex act or who cause a minor to engage in a commercial sex act. 114 Stat. at 1487 (codified at 18 U.S.C. § 1591(a), (b) (2000)). With respect to criminal activity involving a minor, as originally enacted the statute required the government to prove the defendant knew the child victim was a minor. 114 Stat. at 1487 (codified at 18 U.S.C. § 1591(a) (2000)). If the government met that burden, the penalty provisions were harsh: imprisonment up to life if the child victim was less than fourteen years old and imprisonment up to twenty years if the child victim was between fourteen and eighteen. 114 Stat. at 1487 (codified at 18 U.S.C. § 1591(b) (2000)).

The mens rea provision in the original version of § 1591(a) was amended by the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (the “TVPRA”), Pub. L. No. 110-467, tit. II, § 222(b)(5), 122 Stat. 5044, 5069 (Dec. 23, 2008). Under the amended statute, a second method by which the government could prove the relevant mens rea was added to the statute. Specifically, the amended statute permitted the government to prove a defendant acted in “reckless disregard of the fact” that the child victim was a minor. 122 Stat. at 5069 (codified at 18 U.S.C. § 1591(a)). This lessening of the government’s burden of proof was wholly consistent with the objective of the TVPRA to “enhance measures to combat trafficking in persons.” 122 Stat. at 5044.

The specific provision at issue here, § 1591(c), was also added to the statutory scheme pursuant to the TVPRA. It appears in Title II § 222, a section of the TVPRA containing multiple statutory amendments under the heading, “Enhancing penalties for trafficking offenses.” 122 Stat. at 5067. Section 1591(c) is worded in terms of what the government “need not prove” when the “defendant had a reasonable opportunity to observe the person so recruited, enticed, harbored, transported, provided, obtained or maintained.” 122 Stat. at 5069 (codified at 18 U.S.C. § 1591(c)). When this “need not prove” language is considered against the TVPRA’s stated objective of enhancing measures to combat human trafficking, the only reasonable reading of § 1591(c) is that Congress intended to further lessen the government’s burden in situations where the defendant observed the victim of child sex trafficking.

We next consider § 1591(c) in context. See Holloway v. United States, 526 U.S. 1, 6, 119 S.Ct. 966, 143 L.Ed.2d 1 (1999) (“In interpreting the statute at issue, we consider not only the bare meaning of the critical word or phrase but also its placement and purpose in the statutory scheme.” (quotation omitted)). Reasonably read, § 1591(c), which expressly states the government “need not prove” knowledge when a defendant had a reasonable opportunity to observe the child victim, relieves the government of a burden imposed on it by another provision. That other provision is § 1591(a), which permits the government to meet its burden of proving the relevant mens rea element in one of two ways: (1) the defendant knew the child victim was a minor, or (2) the defendant recklessly disregarded the fact the child victim was a minor. 18 U.S.C. § 1591(a). As discussed, this provision was amended by the TVPRA and decreased the prosecution’s burden of proving mens rea by permitting it to show reckless disregard in lieu of knowledge. Reading the two provisions together to give effect to both, indicates that § 1591 must be interpreted to give the prosecution three methods by which it can prove the relevant mens rea. The government can prove knowledge, the most difficult burden to meet and, prior to the enactment of the TVPRA, the only method available to the prosecution. With the changes made to § 1591(a) by the TVPRA, the government can also prove the defendant acted in reckless disregard of the child victim’s age. Finally, § 1591(c), by its plain language, permits the government to meet its burden of proving knowledge by showing the defendant had a reasonable opportunity to view the child victim.

Defendants argue this interpretation of § 1591(c) effectively relieves the government of the burden to prove either knowledge or reckless disregard when a defendant had a reasonable opportunity to observe the child victim, notwithstanding the fact that § 1591(c) references only knowledge. They assert this result fails to give effect to all provisions of the statute because the amendment to § 1591(a) by the TVPRA — which added the reckless disregard standard — becomes irrelevant. Defendants argue the only way to give effect to all the statutory language is to read §' 1591(c) as permitting the government to meet the lesser burden of proving reckless disregard only in situations where the defendant had a reasonable opportunity to observe the child victim.

Defendants’ assertion is true, in part. Once the government has shown a defendant had a reasonable opportunity to observe the child victim, it has satisfied its burden under the knowledge standard and there is no need for it to also prove the defendant recklessly disregarded the fact the victim was a minor. Thus, Defendants are correct that the government’s burden of proving the relevant mens rea is fully met in situations where the defendant had a reasonable opportunity to observe the child victim and the reckless disregard standard has no application in that situation. Contrary to Defendants’ assertion, however, our interpretation does not make the reckless disregard standard superfluous. In situations where a defendant did not have a reasonable opportunity to observe the child victim and the government does not have direct evidence of knowledge, the reckless disregard standard provides the government with an avenue to prove the relevant mens rea. Thus, our interpretation of § 1591(c) does not write the reckless disregard standard out of the statute.

Defendants also advocate for their interpretation of § 1591(c) on the basis that it is consistent with the purposes of the TVPRA because it relieves the government of its burden of proving knowledge, permitting it to prove the lesser standard of reckless disregard. But § 1591(a) accomplishes that same objective without § 1591(c). As ■ amended by the TVPRA, § 1591(a) now permits the government to meet its burden in one of two ways — by proving either (1) knowledge or (2) reckless disregard. The government is no longer limited to proof of actual knowledge. Under the interpretation we adopt, both § 1591(a) and (c) are given effect: (1) § 1591(a) lowers the government’s burden from one of proving knowledge to one of proving knowledge or reckless disregard and (2) § 1591(c) further lowers the governments burden in situations where the defendant had a reasonable opportunity to observe the child victim. Section 1591(c) specifically states that the government should be relieved of a burden when a defendant had a reasonable opportunity to observe the victim. Defendants’ interpretation would restrict the government’s ability to show mens rea under the reckless disregard standard and, thus, is at odds with the plain language of § 1591(c), specifically, and the stated purpose of the TVPRA, generally.

Having examined the plain language of § 1591(c) in the context of the statute as a whole, this court concludes that any burden on the part of the prosecution to prove mens rea with respect to the age of the victim of child sex trafficking is satisfied when the defendant had a reasonable opportunity to view the victim. This interpretation satisfies the stated purpose of the TVPRA — to bolster the government’s ability to regulate human trafficking — by lessening the government’s burden in child sex trafficking cases. It also gives effect to all provisions of § 1591. As so construed, at the time Defendants were indicted the government’s burden of showing mens rea with respect to the age of the child victim could be satisfied in one of three ways: (1) Defendants knew she was a minor, or (2) Defendants recklessly disregarded the fact she was a minor, or (8) Defendants had a reasonable opportunity to observe her. Accordingly, the superseding indictment which only charged reasonable opportunity to observe the victim was sufficient and the district court erred by dismissing it.

B. The Conspiracy Charge

Defendants argue our interpretation of § 1591(c) does not resolve whether the district court erred by dismissing the conspiracy counts. Relying on a ease from the Seventh Circuit, they assert they could not have agreed to commit the crime of child sex trafficking without knowing the victim was a minor at the time they entered into any agreement to violate 18 U.S.C. § 1591. See United States v. Salgado, 519 F.3d 411, 415 (7th Cir. 2008) (holding “[t]he crime of conspiracy is committed, or not, before the substantive crime begins”). This argument confuses the conduct charged in the superseding indictment with Defendants’ defense to that charged conduct.

Defendants were charged with conspiring with a woman known to them as “Carmen” to “knowingly recruit, entice, obtain, and maintain, by any means, a person or persons, having had a reasonable opportunity to observe such person or persons, and knowing and in reckless disregard of the fact that such person or persons would be caused to engage in a commercial sex act. The person or persons so recruited, enticed, obtained, and maintained had not attained the age of 18 years....” By alleging Defendants had a reasonable opportunity to observe the victim, the superseding indictment specifically charges that Defendants had knowledge the victim was a minor for purposes of the conspiracy counts. See supra § III.A. Accordingly, the indictment charges the mens rea element of the crime of conspiring to engage in child sex trafficking and the district court erred by dismissing it.

IV. Conclusion

The judgment of the district court is reversed and the matter remanded for further proceedings not inconsistent with this opinion.

      . Unless otherwise indicated, all citations to 18 U.S.C. § 1591 are to the version of the statute which took effect on December 23, 2008. See William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Pub. L. No. 110-457, tit. II, § 222(b)(5), 122 Stat. 5044, 5069-70 (Dec. 23, 2008).

      . The superseding indictment identified two child victims, R.W. and M.M.

      . Appellees filed a supplemental appendix containing, inter alia, a portion of the trial transcript in a related case, including images of the child victim. The unopposed motion to seal this supplemental appendix was conditionally granted. The government then moved to strike the supplemental appendix. This appeal can be resolved by taking judicial notice of all filings of the parties and rulings of the district court in United States v. Ehrens, No. 15-CR-200-C (W.D. Okla.). See United States v. Smalls, 605 F.3d 765, 768 n.2 (10th Cir. 2010). Accordingly, the government’s motion to strike the supplemental appendix is granted. The motion to permanently seal the supplement appendix is denied as moot but the supplemental appendix shall remain sealed pursuant to this court's order dated August 18, 2016. The Clerk of the Court shall destroy the supplemental appendix and all copies in its possession when the time for filing a petition for writ of certiorari has expired. Should there be a petition for writ of certiorari, the supplemental appendix shall be disposed of as provided in a further order of this court.

      . The Brinson court addressed whether the evidence presented at trial was sufficient to support each of the elements of child sex trafficking. See United States v. Brinson, 772 F.3d 1314, 1325-26 (10th Cir. 2014). Because the evidence was sufficient to show the defendant knew or recklessly disregarded the fact the victim was a minor, Brinson did not consider the question presented in this appeal. See id. at 1326 (noting the minor’s high school registration form was found in the defendant’s vehicle and it indicated she was fourteen years old).

      . Defendants argue the Eleventh Circuit has adopted their interpretation of 18 U.S.C. § 1591(c). In United States v. Mozie, 752 F.3d 1271, 1282 (11th Cir. 2014), the Eleventh Circuit addressed the defendant’s argument that § 1591(c) was unconstitutional on its face because it lowered the government’s "burden of proof below the beyond-a-reasonable-doubt standard by allowing conviction based on a showing that the defendant only recklessly disregarded the victim's age.” The court rejected this argument, stating it conflated mens rea with burden of proof. Id. at 1282. The court also held that the "Due Process Clause does not prevent Congress from criminalizing conduct that is done with reckless disregard instead of actual knowledge,” stating that if the government proved “the defendant had a reasonable opportunity to observe the victim, it need prove only that he recklessly disregarded the fact that she was under the age of eighteen, not that the defendant knew she was.” Id. The court repeated this standard when it addressed the defendant's challenge to the sufficiency of the evidence but did not apply it, concluding instead that the evidence was sufficient to show the defendant knew the ages of the victims. Id. at 1286. Because the Mozie court neither engaged in an analysis of the statutory language nor applied the standard it stated, that opinion is not persuasive on the issue of whether a defendant’s reasonable opportunity to observe the child victim satisfies the mens rea element as to the victim’s age.


source: Caselaw Access Project

author: ■RESTANI, Judge:.

license: Public Domain

text:
    EDWARD LEWIS TOBINICK, MD, a medical corporation, d.b.a the Institute of Neurological Recovery, INR PLLC, a Florida professional limited liability company, d.b.a. Institute of Neurological Recovery, M.D. Edward Tobinick, an individual, Plaintiffs-Appellants, v. Steven NOVELLA, an individual, Society for Science-Based Medicine, Inc., a Florida Corporation, SGU Productions, LLC, a Connecticut limited liability company, et al., Defendants-Appellees, Yale University, a Connecticut corporation, et al., Defendants.
    No. 15-14889
    United States Court of Appeals, Eleventh Circuit.
    (February 15, 2017)

      Cullin A. O’Brien, Cullin O’Brien Law, PA, Fort Lauderdale, FL, Geoffrey Michael Cahen, Quarles & Brady, LLP, Boca Raton, FL, for Plaintiffs-Appellants.
    Marc J. Randazza, Jay Marshall Wol-man, Randazza Legal Group, PLLC, Las Vegas, NV, Jason Allan Fischer, Fischer Law, PL, Miami, FL, for Defendant-Ap-pellee Steven Novella, an individual.
    Scott Allan Cole, Alexandra Valdes, Cole Scott & Kissane, PA, Miami, FL, for Defendant-Appellee Society for Science-Based Medicine, Inc.
    Darren Joel Spielman, Kain & Associates, PA, Fort Lauderdale, FL, for Defendant-Appellee SGU Productions, LLC, a Connecticut limited liability company.
    Eugene Volokh, UCLA School of Law, Los Angeles, CA, for Amici Curiae Gregory Dolin, Henry Greely, David Hyman, Abigail Moncrieff, Natalie Ram, The Center for Medicine and Law.
    Ian Clark, Pro Se.
    Coralie Graham, Pro Se.
    Robert Bruce Rich, Weil Gotshal & Manges, LLP, New York, NY, for Amici Curiae Association of American Publishers, Inc., American Booksellers for Free Expression, Comic Book Legal Defense Fund, Media Coalition Foundation, The Freedom to Read Foundation.
    Mark P. McKenna, Notre Dame Law School, Notre Dame, IN, for Amicus Curiae Intellectual Property Law Professors.
    Hannah Bloch-Wehba, Student Press Law Center, Arlington, VA, for Amici Curiae Reporters Committee for Freedom of the Press, 24 Media Organizations.
    Bruce D. Brown, Reporters Committee for Freedom of the Press, Washington, DC, for Amicus Curiae Reporters Committee for Freedom of the Press.
    Before HULL and MARTIN, Circuit Judges, and RESTANI, Judge.

       Honorable Jane A. Restani, Judge for the United States Court of International Trade, sitting by designation.

   ■RESTANI, Judge:.

Appellants Edward Lewis Tobinick, MD (“INR CA”), INR PLLC (“INR FL”), and M.D. Edward Tobinick (“Dr. Tobinick”) (collectively, the “Tobinick Appellants”) appeal the district court’s orders striking INR CA’s state law claims pursuant to California’s anti-SLAPP statute, twice denying amendment of the Tobinick Appellants’ complaint, denying relief pursuant to Federal Rules of Civil Procedure (“Rule”) 37, 56(d), and 60 due to potential discovery-related abuses, and granting summary judgment against the Tobinick Appellants on their Lanham Act claim. We affirm the district court in all respects.

BACKGROUND

This case concerns a dispute between two doctors regarding the medical viability of a novel use for a particular drug.

I. The Parties

Dr. Tobinick is certified in internal medicine and dermatology, and he is licensed in both California and Florida. He has two clinics that conduct business as The Institute of Neurological Recovery: INR CA in Los Angeles, California, and INR FL in Palm Beach County, Florida. Dr. Tobinick has developed an unorthodox use for the drug etanercept by delivering it through perispinal administration, which involves a needle injection near particular spinal ligaments. Dr. Tobinick claims that this new use of etanercept is effective at treating spinal pain, post-stroke neurological dysfunctions, and Alzheimer’s disease. Etaner-cept is the generic name of Enbrel, which was first approved by the United States Food and Drug Administration (“FDA”) in November 1998 to treat rheumatoid arthritis. Notably, Enbrel has not been FDA approved for the purposes which Dr. To-binick seeks to use the drug.

Steven Novella (“Dr. Novella”) is a neurologist at Yale New Haven Hospital’ in the Botulinum Program and treats patients with a variety of conditions, including headaches, back pain, Alzheimer’s disease, dementia, and seizures. Dr. Novella also engages in endeavors apart from these professional obligations. For instance, he is on the board of the non-profit Society for Science-Based Medicine, Inc. (“Society”). In addition, in May 2005, Dr. Novella began working with his brother, Jay Novella (“Jay”), to produce and broadcast a podcast that discusses a variety of scientific issues. This podcast, “The Skeptics Guide to the Universe,” is hosted on a website (www.theskepticsguide.org) owned by the for-profit company SGU Productions, LLC (“SGU”). Also, Dr. Novella is the executive editor of and contributor for the Science-Based Medicine (“SBM”) blog (www.sciencebasedmedicme.org), which examines issues related to science and medicine, and is operated by a non-profit entity, the New England Skeptical Society.

II. Factual Background

In response to a May 5, 2013, Los Ange-les Time article discussing Dr. Tobinick’s novel treatments, Dr. Novella published an article “Enbrel for Stroke and Alzheimer’s” in SBM’s blog on May 8, 2013 (the “first article”). In this six-page article, Dr. Novella explains that he learned of the Los Angeles Time article, the typical characteristics of “quack clinics” or “dubious health clinics,” the key features of Dr. Tobinick’s clinic, and lastly the plausibility of and the evidence supporting Dr. Tobin-ick’s allegedly effective use of etanercept. Particularly relevant to this case, Dr. Novella also quotes a portion of the Los Ange-les Time article, which reported that “[Dr. Tobinick’s] claims about the back treatment led to an investigation by the California Medical Board, which placed him on probation for unprofessional conduct and made him take classes in prescribing practices and ethics.” Am. Compl. Ex. 1 at 3, Edward Lewis Tobinick, MD v. Novella, No. 9:14-cv-80781-RLR (S.D. Fla. Aug. 1, 2014), ECF No. 55 (“Am. Compl.”).

On June 9, 2014, the Tobinick Appellants filed a complaint against Appellees Dr. Novella, the Society, SGU (collectively, the “Novella Appellees”), and also Yale University (“Yale”), challenging Dr. Novella’s first article. In response to the lawsuit and on July 23, 2014, Dr. Novella published another article in SBM’s blog entitled “Another Lawsuit To Suppress Legitimate Criticism — This Time SBM” (the “second article”). In the second article, Dr. Novella details the lawsuit filed by the Tobinick Appellants and provides Dr. Novella’s view that the lawsuit is designed to silence his public criticism of Dr. Tobinick’s practices. He also restates in large part his same criticisms of Dr. Tobinick’s practices as set forth in the first article. In doing so, Dr. Novella again mentions the Medical Board of California (“MBC”)’s investigation into Dr. Tobinick’s practices, explains that the MBC “filed an accusation in 2004, amended in 2005 and 2006,” and lists in detail the different allegations made in the 2004 Accusation against Dr. Tobinick. Am. Compl. Ex. 5 at 3-4.

III. Course of Proceedings

As stated above, the Tobinick Appellants filed their initial complaint on June 9, 2014. On June 11, 2014, the Tobinick Appellants moved for a preliminary injunction to enjoin the Novella Appellees from continuing to display the articles. On August 1, 2014, the Tobinick Appellants filed an amended complaint to add allegations relating to the second article that was published just nine days prior. This operative amended complaint contests several aspects of the first article, including claims that these neurological conditions “not known to be immune mediated [can be] treated by a specific immunosuppressant,” claims that Dr. Tobinick’s retrospective case studies are not probative medical evidence, implications that Dr. Tobinick is committing a health fraud, statements that Dr. Tobin-ick’s clinics are “a one-man institute,” and that Florida is a “very quack-friendly state.” Am. Compl. ¶¶ 54, 60, 63, 69, 71. Regarding the second article, the Tobinick Appellants’ operative complaint specifically takes issue with only one new statement therein, that “there have been no double-blind placebo-controlled clinical trials of the treatment provided by [Dr. Tobinick].” Am. Compl. ¶ 102. These disputes are covered in the operative complaint by the following causes of action: violation of the Lanham Act, 15 U.S.C. § 1125(a) (Count I); common law unfair competition (Count II); trade libel (Count III); libel per se (Count IV); and tortious interference with business relationships (Count V).

On August 8, 2014, and August 13, 2014, SGU and Yale, respectively, moved to dismiss the action as to them for lack of personal jurisdiction. On August 11, 2014, Dr. Novella moved to dismiss all claims against him for various reasons. On August 18, 2014, the Society moved to dismiss the action against it for failure to state a claim, or for summary judgment, because, inter aha, the Society did not engage in false advertising under the Lanham Act.

On September 25, 2014, pursuant to SGU’s and Yale’s motions to dismiss for lack of personal jurisdiction, the district court dismissed each from the case. On September 30, 2014, Dr. Novella invoked California’s anti-SLAPP law and moved to strike the only California plaintiffs, INR CA’s, state law claims. On January 23, 2015, the district court denied Dr. Novella’s motion to dismiss in nearly all respects but granted his motion to dismiss Count V of the amended complaint, i.e., the tortious interference claim, because Florida’s single publication rule barred that claim. The Tobinick Appellants do not challenge this dismissal on appeal.

On March 16, 2015, after converting the Society’s motion to dismiss into a motion for summary judgment, the district court granted summary judgment in favor of the Society with respect to the Lanham Act (Count I) and the unfair competition (Count II) claims, explaining that the articles were not commercial speech. The district court also dismissed without prejudice the trade libel (Count III) and libel per se (Count IV) claims against the Society because the Tobinick Appellants failed to properly notice the Society of these claims as required by Florida law. The district court, therefore, dismissed the Society from the action, but it did provide the Tobinick Appellants leave to re-file their claims against the Society in a separate suit. On April 2, 2015, following limited discovery, the district court denied the To-binick Appellants’ motion for a preliminary injunction.

On May 11, 2015, the deadline for amended pleadings, the Tobinick Appellants moved for leave to file a second amended complaint, adding new factual allegations some of which related to new webpages and a podcast that discussed Dr. Tobinick, raising a new claim for common law civil conspiracy, reasserting claims against the previously-dismissed defendant SGU, and inserting two new defendants— Jay and Paul Ingraham (“Ingraham”), a co-blogger of Dr. Novella. On May 15, 2015, the Tobinick Appellants filed a corrected version of their motion for leave to amend.

On June 4, 2015, the district court granted Dr. Novella’s special motion to strike INR CA’s state law claims (“anti-SLAPP order”). On June 18, 2015, the district court issued an omnibus order denying the Tobinick Appellants’ corrected motion for leave to file a second amended complaint. In that omnibus order, the district court also granted Dr. Tobinick’s and INR FL’s request for voluntary dismissal of Counts III and IV for trade libel and libel per se, respectively. Shortly thereafter, on June 25, 2015, Dr. Novella filed his answer to the operative amended complaint.

On August 18, 2015, the Tobinick Appellants again-moved for leave to file another second amended complaint in order to add a claim under the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”). On August 20, 2015, the district court denied the Tobinick Appellants’ motion.

On August 25, 2015, Dr. Novella moved for summary judgment on all remaining claims. On September 1, 2015, the Tobinick Appellants filed two motions based on the allegation that Dr. Novella provided false deposition testimony, one motion pursuant to Rule 37 seeking sanctions and one pursuant to Rule 60(b) seeking reconsideration of the district court’s anti-SLAPP order. The Tobinick Appellants argued that Dr. Novella falsely denied that he had communicated with the author of the May 5, 2013, Los Angeles Times article; denied that he had ever discussed Dr. Tobinick with Ingraham; and denied communicating with another physician, Stephen Barrett, regarding Dr. Tobinick.

On September 15, 2015, the district court denied each of the Tobinick Appellants’ motions based on the alleged discovery-related abuses. On October 2, 2015, the district court found that Dr. Novella’s speech is not commercial and then granted summary judgment in favor of Dr. Novella on both remaining claims. The district court reasoned that the Tobinick Appellants largely based their unfair competition claim (Count II) on their Lanham Act false advertising claim (Count I). The Tobinick Appellants now appeal.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction of this appeal pursuant to 28 U.S.C. § 1291. We review de novo “the district court’s interpretation and application of a statute” such as California’s anti-SLAPP statute. Royalty Network, Inc. v. Harris, 756 F.3d 1351, 1354 (11th Cir. 2014). We review for an abuse of discretion the district court’s denial of leave to amend and the denial of requests for relief brought under Rules 37, 56(d), and 60(b). World Holdings, LLC v. Fed. Republic of Germany, 701 F.3d 641, 649, 654-55 (11th. Cir. 2012) (Rule 56(d)); Garfield v. NDC Health Corp., 466 F.3d 1255, 1270 (11th Cir. 2006) (leave to amend); Serra Chevrolet, Inc. v. Gen. Motors Corp., 446 F.3d 1137, 1146-47 (11th Cir. 2006) (Rule 37); Cox Nuclear Pharmacy, Inc. v. CTI, Inc., 478 F.3d 1303, 1314 (11th Cir. 2000) (Rule 60(b)).

Further, we review a grant of summary judgment de novo, “viewing all facts in the light most favorable to the nonmoving party and drawing all reasonable inferences in favor of that party.” McCullum v. Orlando Reg’l Healthcare Sys., Inc., 768 F.3d 1135, 1141 (11th Cir. 2014). “Summary judgment is appropriate where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.” Id.

DISCUSSION

I. Dr. Novella’s Special Motion to Strike

The Tobinick Appellants challenge the district court’s anti-SLAPP order on two grounds. First, the Tobinick Appellants contend that the district court erred in adopting the anti-SLAPP expedited procedures because doing so “trampled federal procedure and constitutional rights” and violated the doctrine of Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Second, the Tobinick Appellants argue the district court’s determination that there was no evidence of actual malice by Dr. Novella is erroneous. Dr. Novella responds that the Tobinick Appellants waived their Erie claim and, in the alternative, that the district court did not err on the merits of that claim. Dr. Novella also avers that the Tobinick Appellants fail to point to evidence of actual malice.

A. Waiver of Erie Claim

We do not consider an issue “not raised in the district court and raised for the first time in an appeal.” Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004) (quoting Walker v. Jones, 10 F.3d 1569, 1572 (11th Cir. 1994)), We have recognized exceptions to the waiver doctrine, including, inter alia, where there is a: (1) “pure question of law, and if refusal to consider would result in a miscarriage of justice[,]” or (2) “no opportunity to raise [the objection] at the district court level.” Id. at 1332 (quoting Wright v. Hanna Steel Corp., 270 F.3d 1336, 1342 (11th Cir. 2001)).

The Tobinick Appellants waived their challenge to the district court’s application of California’s anti-SLAPP statute based on the Erie doctrine. The Tobinick Appellants did not raise the Erie claim in their response to Dr. Novella’s special motion to strike INR CA’s state law claims, nor do the Tobinick Appellants now contend that they ever raised the issue before the district court. Moreover, when asked by the district judge “what about the issue of anti-SLAPP statutes applying in diversity cases in federal court?” the Tobinick Appellants’ counsel responded “[t]here seems to be a plethora of case law that suggests that it is allowable in diversity actions in federal court.” Tr. of Mot. Hr’g, at 26, Edward Lewis Tobinick, MD v. Novella, No. 9:14-cv-80781-RLR (S.D. Fla. Nov. 20, 2014), ECF No. 113. The Tobinick Appellants, therefore, waived the issue. See, e.g., NCDR, L.L.C. v. Mauze & Bagby, P.L.L.C., 745 F.3d 742, 753-54 (5th Cir. 2014) (deeming waived party’s argument that Texas’ anti-SLAPP statute conflicts with the certain federal Rules).

No exception to waiver saves the Tobin-ick Appellants’ claim. The Tobinick Appellants have not identified any miscarriage of justice resulting from a finding of waiver, nor do we see one, given the weakness of the Tobinick Appellants’ state law claims. Furthermore, not only did the To-binick Appellants squarely concede the Erie issue at the hearing, the district court nevertheless considered the argument in its anti-SLAPP order. The district court acted reasonably in applying California’s anti-SLAPP statute to the state law claims, stating that “the majority of circuit courts have found anti-SLAPP special motions to strike permissible, and ... the. specific anti-SLAPP statute at issue has previously been allowed in federal court.” Edward Lewis Tobinick, MD v. Novella, 108 F.Supp.3d 1299, 1305 n.4 (S.D. Fla. 2015) (“Tobinick”). Moreover, that the Seventh Circuit’s June 29, 2015, decision in Intercon Solutions, Inc. v. Basel Action Network, on which the Tobinick Appellants rely, had not been issued until after the district court issued its June 4, 2015, anti-SLAPP order does not excuse the Tobinick Appellants’ waiver. See 791 F.3d 729, 731-32 (7th Cir. 2015) (holding that Washington’s anti-SLAPP statute was inapplicable in federal court after that state’s highest court interpreted that anti-SLAPP statute as going beyond a summary judgment procedure and as violating the right to a trial by a jury by requiring a judge to make factual findings).

First, Intercon is obviously of limited applicability. Second, notwithstanding the date of the Intercon decision, the Tobinick Appellants explicitly conceded the Erie issue at the hearing in which Dr. Novella’s counsel alerted the district court of that potential issue. Even more telling, the To-binick Appellants did not raise the Erie issue-in their September 1, 2015, motion for reconsideration of the district court’s anti-SLAPP order, which was filed months after Intercon had been decided. Accordingly, we decline to consider the merits of the Tobinick Appellants’ Erierbased challenge for the first time on appeal.

B. Actual Malice

In applying California’s anti-SLAPP statute, the district court reasoned that Dr. Tobinick was a limited public figure and that he had not produced evidence of actual malice such that INR CA, Dr. Tobinick’s California entity, had a probability of prevailing on its state law claims. Tobinick, 108 F.Supp.3d at 1308, 1309; see Cal. Civ. Proc. Code § 425.16(b)(1). The Tobinick Appellants challenge only the latter holding regarding actual malice.

Actual malice is defined as “with knowledge that [a statement] was false or with reckless disregard of whether it was false or not” and must be shown “by clear and convincing evidence.” Reader’s Digest Ass’n, Inc. v. Superior Court, 37 Cal.3d 244, 208 Cal.Rptr. 137, 690 P.2d 610, 617 (1984) (quoting N.Y. Times Co. v. Sullivan, 376 U.S. 254, 280, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964)). To show reckless disregard for truth or falsity, California courts apply a subjective test in which “[t]here must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.” Id., 208 Cal.Rptr. 137, 690 P.2d at 617-18 (quoting St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968)). California courts consider factors such as “[a] failure to investigate, anger and hostility toward the plaintiff, [and] reliance upon sources known to be unreliable or known to be biased.” Id. 208 Cal.Rptr. 137, 690 P.2d at 618-19 (citations omitted); see Christian Research Inst. v. Alnor, 148 Cal.App.4th 71, 55 Cal.Rptr.3d 600, 612 (2007).

The Tobinick Appellants have not presented evidence that rises to the level of actual malice. The Tobinick Appellants believe there is actual malice because (1) Dr. Novella improperly relied on the MBC’s 2004 Accusation, which had been superseded by a 2006 Second Amended Accusation, (2) Dr. Novella provided false declarations to the district court because one declaration indicates that, in researching the articles, Dr. Novella relied on the MBC’s 2004 Accusation and other declarations state he relied on the MBC’s 2006 Second Amended Accusation, (3) the articles contained false statements, such as claiming Dr. To-binick ran a “one-man institute,” and (4) Dr. Novella’s deposition included false testimony regarding communications with certain third-parties. Here, even all of the Tobinick Appellants’ circumstantial evidence taken as true is insufficient to show that Dr. Novella had serious doubts as to the truth of the content contained in his two articles.

Contrary to the Tobinick Appellants’ arguments, the evidence indicates that Dr. Novella consulted both the MBC’s 2004 Accusation and the 2006 Second Amended Accusation. We see no reason why the fact that Dr. Novella consulted the 2006 document precludes him from having also consulted the 2004 document. Notwithstanding the alleged discrepancy, the Tobinick Appellants are unable to point to a definitively false statement in either of Dr. Novella’s articles stemming from the reliance on the 2004 Accusation. Instead, Dr. Novella’s second article explicitly acknowledges that the MBC’s 2004 Accusation was amended in 2006, thereby laying credence to the belief that Dr. Novella had seen both documents.

Similarly, the allegedly false statements in Dr. Novella’s articles and the inconsistencies in his deposition testimony are insufficient to demonstrate actual malice. Neither speaks to whether Dr. Novella was “aware of any erroneous statements or [was] in any way reckless in that regard” when he wrote the articles. Sullivan, 376 U.S. at 286, 84 S.Ct. 710. The mere existence of a false statement does not, on its own, demonstrate Dr. Novella’s knowledge of its falsity. Tellingly, the Tobinick Appellants are unable to show that many of Dr. Novella’s statements are actually false or that they are anything more than medical or personal opinion. As an example, the Tobinick Appellants rely on Dr. Novella’s characterization of Florida as a “very quack-friendly state,” Am. Compl. ¶ 71, but this statement is plainly Dr. Novella’s opinion and cannot be proven as true or false. The Tobinick Appellants, instead, point to isolated statements, which do not pertain to the article’s essential criticism of Dr. Tobinick’s medical practices, as evidence that Dr. Novella recklessly included falsities in the article. But, this evidence at most demonstrates mere negligence and does not raise to the level of reckless disregard needed to prove actual malice. See Sullivan, 376 U.S. at 271-72, 84 S.Ct. 710 (“[E]rroneous statement is inevitable in free debate, and ... it must be protected if the freedoms of expression are to have the ‘breathing space’ that they ‘need to survive[.]’ ”). For instance, the Tobinick Appellants allege that Dr. Novella “falsely implies” that Dr. Tobinick’s clinics “have committed a health fraud insomuch as the [first article] was placed into a category identified as ‘Health Fraud.’ ” Am. Compl. ¶ 63. The article itself, however, never states that Dr. Tobinick is committing or has committed health fraud. And, placement in a category on a website is insufficient here where there is no evidence that Dr. Novella decided in which category the article would be included. Furthermore, regarding the “one-man institute” comment, the Tobinick Appellants have failed to rebut Dr. Novella’s statement that he looked at the websites for Dr. Tobinick and his clinic and “Dr. Tobinick [was] the only physician named and profiled on the websites.” Def. Dr. Steven Novella’s Mot. to Dismiss Ex. 1, ¶ 30, Edward Lewis Tobinick, MD v. Novella, No. 9:14-cv-80781-RLR (S.D. Fla. July 23, 2014), ECF No. 36. Dr. Novella’s statement is reasonably held, as the name of Dr. Tobinick’s California clinic, “Edward Lewis Tobinick, MD,” further supports his belief that “Dr. Tobin-ick was a solo practicioner[.]” Id. Instead, as the district court acknowledged, Dr. Novella’s articles contain “a more nuanced discussion of the issues than [INR CA’s] pleading admits.” Tobinick, 108 F.Supp.3d at 1311.

As to the allegedly false statements in the deposition testimony, they relate primarily to Dr. Novella’s communications with certain third-parties after the first article had been published and do not speak to Dr. Novella’s knowledge of the accuracy of the statements made in either of his articles. In any event, as discussed infra, the Tobinick Appellants’ challenges to Dr. Novella’s allegedly false deposition testimony are based on mere conjecture and, if true, at most demonstrate ill will towards Dr. Tobinick, likely based on differing views on medical matters. See Reader’s Digest Ass’n, 208 Cal.Rptr. 137, 690 P.2d at 619 (“[M]ere proof of ill will on the part of the publisher may ... be insufficient [to prove actual malice].”).

Moreover, although “[t]he failure to conduct a thorough and objective investigation, standing alone, does not prove actual malice,” id 208 Cal.Rptr. 137, 690 P.2d at 619, we conclude that the evidence of Dr. Novella’s investigation, in which he looked to trustworthy sources, demonstrates his lack of subjective belief that the articles contained false statements. Before writing, Dr. Novella consulted the Los Angeles Times article, many of Dr. Tobinick’s case studies, the MB.C’s accusations, and the Tobinick Appellants’ own websites. See Tobinick, 108 F.Supp.3d at 1310. Accordingly, because the Tobinick Appellants have not demonstrated a probability of success on the actual malice issue, the district court did not err in granting Dr. Novella’s special motion to strike the state law claims pursuant to California’s anti-SLAPP statute.

II. The Tobinick Appellants’ Motion for Leave to Amend

The Tobinick Appellants argue that the district court erred in twice denying them leave to amend the operative complaint because there would not have been prejudice to the Novella Appellees.

Rule 15 provides that “[a] party may amend its pleading once as a matter of course....” Fed. R. Civ. P. 15(a)(1). And “[i]n all other cases, a party may amend its pleading only with ... the court’s leave. The court should freely give leave when justice so require.” Id. 15(a)(2). The Supreme Court has explained that a district court may properly deny leave to amend for reasons “such as undue delay.” Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962).

The district court did not abuse its discretion in twice denying leave to amend the operative complaint. Both motions for leave to amend were sought approximately a year after the Tobinick Appellants filed the original complaint. By the time the Tobinick Appellants sought amendment, the course of proceedings had been markedly advanced — the district court had dismissed SGU and Yale for lack of personal jurisdiction, dismissed Count V of the operative complaint, granted summary judgment in favor of the Society, and denied the Tobinick Appellants’ motion for preliminary injunction. The Tobinick Appellants filed the first motion for leave to amend on the deadline for amended pleadings and sought extensive changes to the operative complaint: they alleged new factual allegations, added a civil conspiracy claim, reinserted previously-dismissed SGU back into the case, and added two new defendants. The second motion to amend also sought to supplement the complaint with the new FDUTPA cause of action.

In denying the first motion, the district court reasonably concluded that allowing amendment “would essentially reset the case.” Omnibus Order, at 2, Edward Lewis Tobinick, MD v. Novella, No. 9:14-cv-80781-RLR (S.D. Fla. June 18, 2015), EOF No. 202. The district court noted the “aggressively litigated” course of proceedings, the extent of the amendments sought by the Tobinick Appellants, and the fact that the Tobinick Appellants “could only identify a limited number of recent statements incorporated into the proposed” complaint. Id. at 1-2. Indeed, many of the new factual allegations added by the To-binick Appellants related to the legal defense webpage and the SGU podcast, which were both initially published in July 2014, nearly a year before the Tobinick Appellants filed their first motion for leave to amend. Similarly, the district court denied the second motion, which was filed after the deadline for amended pleadings, in a docket entry “for all of the reasons previously stated on the record at the Court’s Status Conference on June 18, 2015, as well as the timing of the Motion in relation to the dispositive motion deadline, which is imminent, and trial, which is two months hence.” Paperless Order, Edward Lewis Tobinick, MD v. Novella, No. 9:14-cv-80781-RLR (S.D. Fla. Aug. 20, 2015), ECF No. 245. Thus, even though Dr. Novella had not yet filed his answer, the district court did not abuse its discretion because it properly sought to prevent an undue delay caused by the Tobinick Appellants’ last-minute attempts to amend their complaint.

III. The Tobinick Appellants’ Discovery-Related Requests for Relief

The Tobinick Appellants argue that the district court abused its discretion in not granting relief under Rules 37, 56(d), and 60(b) because Dr. Novella misled the To-binick Appellants and the district court through his deposition testimony, thereby prejudicing the Tobinick Appellants by an unfavorable summary judgment ruling.

Under Rule 60(b), a party may move for relief from a final judgment or order, for reasons including fraud. Fed. R. Civ. P. 60(b). The moving party must show “by clear and convincing evidence that an adverse party has obtained the verdict through fraud, misrepresentation, or other misconduct.” Cox Nuclear Pharmacy, 478 F.3d at 1314 (quoting Frederick v. Kirby Tankships, Inc., 205 F.3d 1277, 1287 (11th Cir. 2000)).

Under Rule 37(b)(2), a party may move for sanctions for failure to comply with a discovery order. Fed. R. Civ. P. 37(b)(2). A district court has broad discretion in applying these sanctions, and “a default judgment sanction,” as requested by the Tobinick Appellants, “requires a willful or bad faith failure to obey a discovery order.” Malautea v. Suzuki Motor Co., 987 F.2d 1536, 1542 (11th Cir. 1993).

Rule 56(d) provides: “[i]f a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present- facts essential to justify its opposition, the court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order.” Fed. R. Civ. P. 56(d).

First, to support his requests for Rules 37 and 60(b) relief, the Tobinick Appellants allege a scheme to ruin Dr. Tobinick perpetrated by Dr. Novella and other co-conspirators, but none of his claims are sufficient to demonstrate bad faith or fraud justifying sanctions or reconsideration. Dr. Novella explained each of the alleged false statements in his deposition. As to his communications with the author of the Los Angeles Times article, Dr. Novella testified that at the time of the deposition he did not remember a brief email conversation that had occurred more than two years prior. And, Dr. Novella explained that he truthfully answered his reasonable interpretation of the questions regarding his communications with Ingraham and Barrett. The Tobinick Appellants’ conjecture of an elaborate conspiracy is not sufficient to controvert Dr. Novella’s reasonable explanations and certainly is insufficient to demonstrate bad faith or fraud. It, consequently, was not an abuse of discretion for the district judge to deny the motions under Rules 37 and 60(b).

Second, the district court did not abuse its discretion on the Rule 56(d) issue as the Tobinick Appellants never made a proper motion for Rule 56(d) relief. “A request for a court order must be made by motion.” Fed. R. Civ. P. 7(b)(1). Instead, the Tobinick Appellants requested Rule 56(d) relief in their brief responding to Dr. Novella’s motion for summary judgment. The district court did not issue an order regarding Rule 56(d), likely because it was not moved to do so. Indeed, the Tobinick Appellants had once before sought relief pursuant to Rule 56(d) by motion pending the close of discovery, and the district court both considered and ultimately granted the motion. To the extent that the Tobinick Appellants’ request for Rule 56(d) relief is premised on the same discovery-related abuses as their other two motions, their claim fails because for the reasons already stated the district court did not abuse its discretion. Thus, the district court did not abuse its discretion in denying each of the Tobinick Appellants’ discovery-related requests for relief.

IV. The Tobinick Appellants’ Lanham Act Claim

The Tobinick Appellants argue that the district court erred in granting summary judgment against them on their Lanham Act claim because there are material facts in dispute regarding the commercial nature of Dr. Novella’s speech, chiefly as it relates to his economic motivations. The Tobinick Appellants further contend that Dr. Novella’s statements are false and misleading and that the Tobinick Appellants have satisfied the remaining elements of a Lanham Act claim.

The Lanham Act prescribes liability for false advertising to “commercial advertising or promotion.” 15 U.S.C. § 1125(a)(1)(B). Commercial advertising or promotion includes “(1) commercial speech; (2) by a defendant who is in commercial competition with plaintiff; (3) for the purpose of influencing consumers to buy defendant’s goods or services[;]” and (4) “the representations ... must be disseminated sufficiently to the relevant purchasing public to constitute ‘advertising’ or ‘promotion’ within that industry.” Suntree Techs., Inc. v. Ecosense Int’l, Inc., 693 F.3d 1338, 1349 (11th Cir. 2012) (quoting Gordon & Breach Sci. Publishers S.A. v. Am. Inst. of Physics, 859 F.Supp. 1521, 1535-36 (S.D.N.Y. 1994)).

Commercial speech is “expression related solely to the economic interests of the speaker and its audience.” Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557, 561, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980). The “core notion” of commercial speech, extends to speech that proposes a commercial transaction. Bolger v. Young Drug Prods. Corp., 463 U.S. 60, 66, 103 S.Ct. 2875, 77 L.Ed.2d 469 (1983). The Supreme Court has identified three factors in looking beyond the core notion of commercial speech: (1) that the material was “conceded to be advertisements,” (2) it contained a “reference to a specific product,” and (3) the speaker “has an economic motivation” for distributing the material. Id. No one factor is dispositive. See id. at 67, 103 S.Ct. 2875. “The combination of all three characteristics, however, provides strong support for the ... conclusion that the [material is] properly characterized as commercial speech.” Id. at 62, 67, 103 S.Ct. 2875. But, “speech is not rendered commercial by the mere fact that it relates to an advertisement.” Pittsburgh Press Co. v. Pittsburgh Comm’n on Human Relations, 413 U.S. 376, 384, 93 S.Ct. 2553, 37 L.Ed.2d 669 (1973).

There is no genuine dispute of material fact regarding whether Dr. Novella’s articles are commercial speech. A plain reading of the first and second articles makes clear that they. do not fall within the core notion of commercial speech as they do not propose a commercial transaction. Instead, Dr. Novella’s articles evoke many characteristics of noncommercial speech. The articles “communicate[ ] information, express[ ] opinion, [and] recite[ ] grievances, .... ” See Sullivan, 376 U.S. at 266, 84 S.Ct. 710. Dr. Novella, who posted the articles on SBM’s blog, states in his second article that the purpose of the SBM blog is to “provide an objective analysis of questionable or controversial medical claims so that consumers can make more informed decisions.... ” Am. Compl. Ex. 5 at 1. The content of the articles corroborates this stated educational purpose, as the articles discuss the plausibility of Dr. Tobinick’s practices in relation to the different medical conditions treated, the way etanercept works, and the shortage of medical studies supporting Dr. Tobin-ick’s position. These articles, which conclude that Dr. Tobinick’s perispinal administration of etanercept is ineffective, add to the public debate regarding the viability of a non-FDA approved medical treatment and are clearly of import to the public.

We turn next to the three factors outlined by the Supreme Court in Bolger with regard to non-core commercial speech and conclude that these factors do not save the Tobinick Appellants’ Lanham Act claim. First, the Novella Appellees do not concede that the articles are advertisements, nor can they reasonably be construed as such. The first article makes no mention of Dr. Novella’s practice or medical services. Although the second article does make such a mention, it was authored in re-, sponse to the Tobinick Appellants’ filing of their lawsuit, criticizes the lawsuit as an attempt to suppress Dr. Novella’s critiques, and mentions Dr. Novella’s medical practice only to provide context regarding the lawsuit. In addition, Dr. Novella clarifies in his second article that he primarily treats headaches, thereby distancing the types of medical services he provides from the services marketed by Dr. Tobinick, who does not claim to treat headaches.

Second, the articles do not discuss any products for sale by Dr. Novella, and, as discussed, only briefly mention his practice for context. The articles’ sole reference to a product is found in their discussion of Dr. Tobinick’s medical treatments. But, these references to Dr. Tobinick’s medical treatments are, by themselves, insufficient to subject Dr. Novella’s otherwise protected speech to Lanham Act liability. See Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 761-62, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976) (explaining that speech that includes content on commercial topics is not automatically commercial speech). In Gordon & Breach Sri. Publishers S.A., the district court explained that “a restaurant or movie review or a ... product report” on its own is not commercial speech under the Lanham Act, 15 U.S.C. § 1125(a), but can be transformed into commercial speech when, for instance, a restaurant “posts the ... review in its window.” 859 F.Supp. at 1544. Dr. Novella’s discussion of Dr. Tobinick’s use of etanercept, which resembles a medical peer review of a treatment’s viability, therefore, does not render the articles commercial speech.

Third, the Tobinick Appellants have not demonstrated economic motivation sufficient to transform Dr. Novella’s speech into commercial speech. As a preliminary matter, there is no factual dispute as to where the articles were displayed online, how the websites were set up, and whether the websites generated revenue through advertisements and membership subscriptions. The Tobinick Appellants describe a complex “funneling” scheme to generate profit for Dr. Novella, in which the Tobin-ick Appellants claim that the two articles are connected to other websites through hyperlinks in a way that readers are directed to websites that generate revenue for Dr. Novella, such as through advertising or membership subscriptions. This funneling theory, which attempts to connect the articles to revenue sources, relies on such a level of attenuation that it fails to demonstrate economic motivation in the commercial speech context.

The Tobinick Appellants’ reliance on World Wrestling Federation Entertainment, Inc. v. Bozell is misplaced. 142 F.Supp.2d 514, 525 (S.D.N.Y. 2001). There, a wrestling organization sued a council comprising concerned parents who had initiated a public attack campaign about the risk to children of portraying violence in wrestling television programs. Id. at 521. The district court denied a motion to dismiss the complaint and held that the allegations were sufficient to demonstrate that the council engaged in commercial speech because it featured the attacks “prominently in a fundraising video,” in “fund-raising letters,” and in order “to raise the profile of [the council].” Id. at 525, 526. Unlike the speech in Bozell, Dr. Novella’s articles are neither featured prominently in fundraising efforts (or other similar solicitations for money), nor have the To-binick Appellants shown that these articles are the central content driving advertising or membership-based revenue.

To be sure, neither the placement of the articles next to revenue-generating advertising nor the ability of a reader to pay for a website subscription would be sufficient in this case to show a liability-causing economic motivation for Dr. Novella’s informative articles. Both advertising and subscriptions are typical features of newspapers, whether online or in-print. But, the Supreme Court has explained that “[i]f a newspaper’s profit motive were determinative, all aspects of its operations— from the selection of news stories to the choice of editorial position — would be subject to regulation if it could be established that they were conducted with a view toward increased sales. Such a basis for regulation clearly would be incompatible with the First Amendment.” Pittsburgh Press, 413 U.S. at 385, 93 S.Ct. 2553.

Furthermore, as our sister circuits have recognized, magazines and newspapers often have commercial purposes, but those purposes do not convert the individual articles within these editorial sources into commercial speech subject to Lanham Act liability. See Farah v. Esquire Magazine, 736 F.3d 528, 541 (D.C. Cir. 2013) (holding that a satirical article about a book in a magazine’s online blog was not commercial speech subject to Lan-ham Act liability even though “writers write and publishers publish ... for commercial purposes”); Hoffman v. Capital Cities/ABC, Inc., 255 F.3d 1180, 1186 (9th Cir. 2001) (“A printed article meant to draw attention to the for-profit magazine in which it appears, however, does not fall outside of the protection of the First Amendment because it may help to sell copies.”). We agree. Even if Dr. Novella receives some profit for his quasi-journalistic endeavors as a scientific skeptic, the articles themselves, which never propose a commercial transaction, are not commercial speech simply because extraneous advertisements and links for memberships may generate revenue. See Va. State Bd. of Pharmacy, 425 U.S. at 761, 96 S.Ct. 1817 (“Speech ... is protected ... even though it may involve a solicitation to purchase or otherwise pay or contribute money.”); see also Burstyn v. Wilson, 343 U.S. 495, 501, 72 S.Ct. 777, 96 L.Ed. 1098 (1952) (“That books, newspapers, and magazines are published and sold for profit does not prevent them from being a form of expression whose liberty is safeguarded by the First Amendment.”). Thus, because the articles are not commercial speech, they cannot be subject to Lanham Act liability as commercial advertising or promotion. Accordingly, we need not reach the other elements of a prima facie Lanham Act false advertising action.

CONCLUSION

For all of the reasons stated above, the judgment of the district court is

AFFIRMED.

      . The Society is a separate entity from the SBM blog. The Society has its own website that was first made available to the public on January 1, 2014.

      . The Society’s website also contains a short entry about Dr. Tobinick's use of etanercept. The entry discusses the MBC’s 2006 Second Amended Accusation and subsequent settlement and Dr. Novella's criticism of Dr. Tobin-ick. The entry also links to Dr. Novella’s entire article on the SBM blog.

      . According to Dr. Novella, his statement that the neurological conditions treated by Dr. To-binick are “not known to be immune mediated” means "that the current consensus is not that these conditions are primarily caused by or driven by an autoimmune disease that could be modified by this treatment.” Dep. of Steven Novella, M.D., at 35-36, Edward Lewis Tobinick, MD v. Novella, No. 9:14-cv-80781-RLR (S.D. Fla. Sept. 1, 2015), ECF No. 261-9. Dr. Novella identified etanercept as an example of an immunosuppressant. Id.

      .The purpose of the anti-SLAPP law is to curb the "increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.” See Cal. Civ. Proc. Code § 425.16(a). Such causes of action are subject to a special motion to strike. Id. § 425.16(b)(1).

      . On appeal, the Tobinick Appellants do not explicitly challenge the order granting summary judgment in favor of the Society. Their discovery-related requests for relief could be generously construed as a challenge to the validity of this summary judgment order. But, because we conclude that the district court did not abuse its discretion in denying the requests for discovery-related relief, we see no remaining challenge to the grant of summary judgment in favor of the Society.

      . More precisely, the Tobinick Appellants add allegations regarding (1) a July 23, 2014, legal defense webpage on SGU’s website, which requests donations to help defend against the Tobinick Appellants’ suit, (2) a July 26, 2014, SGU podcast that discusses Dr. Tobinick’s medical treatments, the transcript of which was published on August 7, 2014, and (3) an April 1, 2015, article in SBM’s blog that provided an update on the status of the litigation against the Tobinick Appellants.

      . As reflected in the discussion of actual malice, infra, it seems highly unlikely that the Tobinick Appellants' state law claims would survive even without the availability of an anti-SLAPP motion.

      . The anti-SLAPP statute provides:
      A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.
      Cal. Civ. Proc. Code § 425.16(b)(1).

      . As we have explained, the Supreme Court has identified two types of public figures in this context. An all-purpose public figure is one that “occupfies] positions of such persuasive power and influence that they are deemed public figures for all purposes.” Silvester v. Am. Broad. Cos., 839 F.2d 1491, 1494 (11th Cir. 1988) (quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 345, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974)). A limited public figure, by contrast, "ha[s] thrust [himself] to the forefront of particular public controversies in order to influence the resolution of the issues involved.” Id. (quoting Gertz, 418 U.S. at 345, 94 S.Ct. 2997). Both types of public figures must prove that the defamatory statements were made with actual malice. See Gertz, 418 U.S. at 336, 94 S.Ct. 2997; Reader's Digest Ass'n, Inc. v. Superior Court, 37 Cal.3d 244, 208 Cal.Rptr. 137, 690 P.2d 610, 615 (1984) ("Unlike the 'all purpose' public figure, the 'limited purpose’ public figure loses certain protection for his reputation only to the extent that the allegedly defamatory communication relates to his role in a public controversy.”).

      . The Tobinick Appellants do state that both the 2004 Accusation and the 2006 Second Amended Accusation were superseded by an MBC 2007 Decision adopting a Stipulated Settlement and Disciplinary Order, which recognized that "studies ... have provided evidence that perispinal etanercept is effective for treatment of disc-related pain.” Pis.1 Corrected Rule 60(b) Mot. for Relief from June 4, 2015 Order and Sanctions and Incorporated Mem. of Law Ex. 29, at 4, Edward Lewis Tobinick, MD v. Novella, No. 9:14-cv-80781-RLR (S.D. Fla. Sept. 1, 2015), ECF No. 261. The Tobinick Appellants do not identify which of Dr. Novella’s statements is in conflict with' this settlement; instead, they seems to imply that Dr. Novella's articles are misleading as to existence of these studies incorporated in the MBC’s 2007 Decision. Not only is this implication on its own insufficient to rise to the level of actual malice, but Dr. Novella’s second article appears to reference these very studies. The second article admits that ”[t]here are small studies for disc herniation showing conflicting results.” Am. Compl. Ex. 5 at 3.

      . Because the Tobinick Appellants did not specify the grounds on which they were moving, the district court reasonably construed the basis as for "fraud ..misrepresentation, or misconduct by an opposing party.” Edward Lewis Tobinick, M.D. v. Novella, No. 9:14-cv-80781, 2015 WL 11254727, at *1 (S.D. Fla. Sept. 15, 2015) (quoting Fed. R. Civ. P. 60(b)(3)). On appeal, the Tobinick Appellants do not challenge the district court's construction.

      . Specifically, Dr. Novella's declaration provided that his deposition did not contain false statements because (1) as to Ingraham, he was asked if he discussed the topic of Dr. Tobinick with Ingraham, but the emails show one-sided emails from Ingraham to Dr. Novella, but did not contain responses from Dr. Novella, and (2) as to Barrett, he answered that he could not recall whether or not an email exchange took place and therefore never falsely denied the existence of such emails in his deposition.

      . The Tobinick Appellants argue that the court should consider the "full context” of the “interrelated websites, promotion and links that funnel money directly to [Dr.] Novella.” But, much of the "full context” the Tobinick Appellants implore us to now consider are merely the websites and factual allegations that the Tobinick Appellants sought to add to their complaint by moving for leave to amend. Because we determined above that the district court did not abuse its discretion in denying leave to amend, we limit our review, as we must, to the allegations included in the operative amended complaint.

      . To the extent that the Tobinick Appellants argue that SGU’s legal defense webpage sought donations, as discussed, the allegations regarding that webpage are not under review as they were not made in the operative amended complaint.