NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________

No. 20-1238 ____________

MICHAEL KONOWICZ, a/k/a Michael Phillips; ISARITHIM LLC, Appellants

v.

JONATHAN P. CARR; SEVERE NJ WEATHER, LLC, d/b/a Weather NJ; WEATHER NJ, LLC, d/b/a Weather NJ ____________

On Appeal from the United States District Court for the District of New Jersey (D.C. No. 3:15-cv-06913) District Judge: Honorable Michael A. Shipp ____________

Submitted on November 12, 2020

Before: HARDIMAN, SCIRICA, and RENDELL, Circuit Judges.

(Filed: December 8, 2020)

___________

OPINION* ____________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. HARDIMAN, Circuit Judge.

Michael Konowicz appeals the District Court’s summary judgment in favor of

Jonathan Carr and affiliated entities. We will affirm in part and reverse in part.

I

Konowicz and Carr are weather aficionados and rivals. A self-described

“professional, accredited meteorologist,” App. 21, Konowicz maintains a website and

various social media platforms, operating under the name “theWeatherboy.”1 He has a

Certificate in Broadcast Meteorology from Mississippi State University (MSU) and is a

member of the American Meteorological Society (AMS). Carr describes himself as an

amateur weather enthusiast. Since 2010, he has operated Weather NJ (formerly Severe NJ

Weather), which provides online weather forecasting services through its website and

social media platforms. Carr has some 225,000 followers as a result of his forecasting

hobby.

This federal case arises out of social media barbs between Carr and Konowicz.

From December 2014 to June 2015, Carr wrote a series of Twitter posts attacking

Konowicz’s education, qualifications, and experience. Carr also published an article,

Beware of the fake “Team of Meteorologists,” in which he repeated (and expanded on)

several assertions made in his earlier tweets.

1 Although Konowicz has since assigned the trademark for Weatherboy to Isarithm LLC, references to Weatherboy herein refer to Konowicz in his individual capacity.

2 In response to the Twitter posts and the article, Konowicz sent Carr a cease-and-

desist letter in July 2015. The letter accused Carr of spreading “false statements of fact

concerning [Konowicz],” and labeled Carr’s allegedly defamatory statements

“categorically false.” App. 846–47. Konowicz also provided Carr a copy of Konowicz’s

MSU certificate with the letter. Konowicz demanded Carr “issue a full and complete

retraction” and “take down [his] online defamatory statements.” App. 849. Carr did

neither.

In September 2015, Konowicz sued Carr for defamation, unfair competition, and

violating the Lanham Act. Carr filed an answer and a counterclaim against Konowicz for

defamation. The District Court granted Carr summary judgment on Konowicz’s claims

and granted Konowicz summary judgment on Carr’s counterclaim. Only Konowicz

appealed.2

II

A

Konowicz made two arguments in the District Court: (1) Carr originally published

his statements with actual malice—i.e., “knowledge that [they] w[ere] false or with

reckless disregard of whether [they] w[ere] false or not,” New York Times Co. v. Sullivan,

(1964); and (2) the statements were republished with actual malice. On

appeal, Konowicz focuses on the latter point, arguing that Carr’s receipt of the cease-and-

2 The District Court had jurisdiction under

and 1367(a). We exercise jurisdiction under

.

3 desist letter provided him “notice of the falsity of his claims.” Konowicz Br. 36. By

republishing the statements on his website after receiving the letter, Konowicz argues,

Carr acted with actual malice.

At summary judgment, the appropriate question was “whether the evidence in the

record could support a reasonable jury finding . . . that [Konowicz] has shown actual

malice by clear and convincing evidence.” Anderson v. Liberty Lobby, Inc.,

,

255–56 (1986). To make that determination, the District Court had to consider each

allegedly actionable statement. We do the same here.

1

The first statements under review were made in December 2014. In response to a

third party’s Twitter thread questioning the identity of Weatherboy, Carr wrote: “Real

name Michael Konowicz. No degree or AMA record. fake audience.”3 App. 439.

Konowicz argues that because he provided Carr with a copy of his MSU certificate and

his AMS membership number, a jury must determine whether Carr acted with actual

malice when he republished these statements. Carr responds that a certificate is not the

same as a “degree,” and that he continued to believe his statement even after receiving

the cease-and-desist letter.

Because we look to the speaker’s subjective understanding of the truth or falsity of

a statement when considering actual malice, see St. Amant v. Thompson,

(1968), we agree with Carr and the District Court that Carr’s “no degree” comment

3 Both parties agree Carr meant to type “AMS.”

4 lacks clear and convincing evidence of actual malice. See Anderson,

.

Knowledge of the certificate would not have led Carr to possess a “high degree of

awareness of [the] probable falsity” of his claim because he reasonably believed that

Konowicz’s certificate is not a “degree.” Garrison v. Louisiana,

(1964).

As for the claim that AMS had no record of Konowicz, the District Court found

that even though Konowicz “provided some objective evidence to Carr that Konowicz

[held] at least one type of . . . membership or accreditation” with AMS, this did not raise

a genuine issue regarding actual malice. App. 1189. We agree.

Although the cease-and-desist letter provided Carr with Konowicz’s AMS

membership number as well as a link to a search feature on AMS’s website, such

evidence does not create a genuine dispute as to actual malice. Under Carr’s reasonable

subjective belief, “AM[S] record” referred to records of official accreditation, not a more

general record of membership. While Carr easily could have verified Konowicz’s general

affiliation with the organization, the evidence provided did not prove official

accreditation. Republication of the statement in light of the cease-and-desist letter did not,

therefore, constitute actual malice.

Finally, with respect to the claim that Konowicz had a “fake audience,” we agree

with the District Court that there was no evidence of actual malice. Carr had many

reasons for believing that Konowicz’s audience was largely composed of fake accounts.

The cease-and-desist letter did little to refute Carr’s repeated claims to that effect. So

Carr was not put on notice of the “probable falsity” of his statement, Garrison,

5 at 74, and Konowicz failed to show actual malice regarding Carr’s “fake audience”

claims.4

2

In February 2015, Carr warned his Twitter followers to be “careful of Weatherboy

Weather. Total fraud. Have unsettling proof.” App. 384. When pressed for proof, Carr

responded on the same message thread: “check records on Michael Konowicz. Not a pro

met. Not a member of AMS.” Id. As with the December statement claiming Konowicz

had “No degree or AM[S] record,” App. 439, Konowicz argues Carr’s republication of

these statements after receiving his certificate and AMS membership number constitutes

clear and convincing evidence of actual malice. We disagree.

The District Court did not err when it held that Carr’s republication of these

statements did not raise an actual malice issue for the jury. As the Court noted, the parties

“disagree[d] over the operative portion of the AMS’s definition of meteorologist.” App.

1187. Carr relied on this definition: “[a] meteorologist is an individual with specialized

education . . . most typically in the form of a bachelor’s degree or higher.” Id. at 1187–

88. Carr’s statement was not made with actual malice because Konowicz’s certificate is

not “a bachelor’s degree or higher.” Id.

We likewise agree with the District Court that the claim Konowicz was not a

“member” of AMS does not create a genuine dispute as to actual malice. As Carr

4 Carr references Konowicz’s “fake audience” repeatedly. Because Konowicz never offers clear and convincing evidence to support a finding of actual malice, the analysis for each reference is identical.

6 understood the term, “membership” does not encompass Konowicz’s generic, non-

credentialed participation in the organization. On Carr’s understanding, only Certified

Broadcast Meteorologist and Certified Consulting Meteorologist AMS accreditations

qualify as “membership.” Here again, the cease-and-desist letter did not invalidate Carr’s

reasonable understanding, so Konowicz cannot meet the clear-and-convincing threshold

to show Carr made the statement with a “high degree of awareness of [its] probable

falsity.” Garrison,

.

3

Carr continued to make allegedly defamatory statements in March 2015. After

Weatherboy wrote that United Airlines invited him to its headquarters in Chicago to

study its winter weather operations, Carr responded with a series of four tweets, stating:

“Chicago story fake. No names. No credentials. No supporting media. Shots similar to

other images on Google images”; “Keep sponsoring fake articles to fake audience while

impersonating a fake team of meteorologists. #StayClassy”; “541 likes on a sponsored

article to a fan-base of 250k. Sorry, that proves dirty pool. For real unparalleled trust and

reach see . . . my page”; and “just some guy impersonating a team of real meteorologists

practicing horrible journalism.” App. 41.

Konowicz cites his cease-and-desist letter as evidence that contradicts Carr’s

claims that Konowicz’s “team of meteorologists” was “fake.” We are unpersuaded.

The cease-and-desist letter states: “Weatherboy Weather[] is indeed a team effort,

from other meteorologists, photographers, designers, and staff.” App. 847. As the District

7 Court noted, however, that assertion did not put Carr on notice that his statement was

false—it put him on notice that he and Konowicz disagreed. While Konowicz did

eventually provide proof that he contracted with two independent meteorologists, this

“team” evidence “only came out during discovery.” App. 1189. Because this evidence

was adduced well after the statement was made, it does not suggest Carr knew the falsity

of his statement when he republished it.

Konowicz also argues he provided clear and convincing evidence that his trip to

Chicago was real, so Carr republished the statement with actual malice. Konowicz

included several photographs in a second letter sent to Carr in February 2016—four

months after Konowicz filed suit and three months after the republication at issue.

Konowicz claims these photographs show United invited him to Chicago. We agree with

the District Court that these photographs are not clear and convincing evidence of actual

malice because they would not cause Carr to understand his statement to be “probabl[y]

fals[e]” at the time of republication. See St. Amant,

; see also Gertz v.

Welch,

, 334 n.6 (1974) (equating “reckless disregard of the truth” with

“subjective awareness of probable falsity”). As Carr explained, the photographs—which

lack dates or identifying features—“are merely evidence that [Konowicz] was at some

airport at some time for some purpose.” Carr Br. 45.

4

Finally, in June 2015, Carr published an article on his website essentially repeating

several of his prior statements. App. 43–47. Specifically, Konowicz draws our attention

8 to one line: “The American Meteorological Society (AMS) currently has zero-evidence

of him.” App. 116; Konowicz Br. 37. The District Court held that Carr’s republication of

this statement after receipt of the cease-and-desist letter did not create a jury question as

to actual malice. We disagree.

Unlike Carr’s claim as to AMS’s lack of an official accreditation record of

Konowicz, see supra Section II-A-1, the claim AMS has “zero-evidence of [Konowicz]”

is broader, encompassing even general, non-accreditation membership in AMS. As

previously noted, however, the cease-and-desist letter provided Carr with Konowicz’s

AMS membership number as well as a link to a search feature on AMS’s website, so Carr

easily could have verified Konowicz’s general membership and affiliation with the

organization.

Carr cannot “automatically insure a favorable verdict by testifying that he

published with a belief that the statements were true.” St. Amant,

. Since

Carr received explicit evidence contradicting his sweeping statement, the decision to

nevertheless republish creates a jury question as to whether Carr acted with actual malice

when he said “The American Meteorological Society (AMS) currently has zero-evidence

of [Konowicz].” App. 116. See, e.g., Schiavone Constr. Co. v. Time, Inc.,

(3d Cir. 1988) (“Where the defendant finds . . . apparently reliable information that

contradicts [his] libelous assertions, but nevertheless publishes those statements anyway,

the New York Times actual malice test can be met.”).

9 B

Konowicz also argues the District Court erred in denying his Lanham Act and

unfair competition claims. We address the two together because “the Lanham Act is

derived generally and purposefully from the common law tort of unfair competition, and

its language parallels the protections afforded by state common law.” Am. Tel. and Tel.

Co. v. Winback and Conserve Program, Inc.,

(3d Cir. 1994); see also

Buying For The Home, LLC v. Humble Abode, LLC,

(D.N.J.

2006) (“[T]he elements of a claim of unfair competition under the Lanham Act are the

same as for claims of unfair competition . . . under New Jersey . . . law.”).

We agree with the District Court that Carr’s statements are not actionable under

the Lanham Act because they are not commercial speech. See, e.g., Boule v. Hutton,

(2d Cir. 2003) (holding that a “statement must be (1) commercial

speech” to fall under the Lanham Act (internal quotation marks omitted)); Taubman Co.

v. Webfeats,

(6th Cir. 2003) (“The Lanham Act is constitutional

because it only regulates commercial speech, which is entitled to reduced protections

under the First Amendment.”).

Carr’s statements from December 2014, March 2015, and June 2015 are not

commercial speech because they do not “refer to a specific product or service.” U.S.

Healthcare, Inc. v. Blue Cross of Greater Phila.,

, 933 (3d Cir. 1990) (citing

Bolger v. Youngs Drug Prods. Corp.,

, 66–67 (1983)). Carr’s remaining

statement—“The American Meteorological Society (AMS) currently has zero-evidence

10 of [Konowicz],” App. 116—appeared within an article that perhaps served as an

advertisement and referred to Carr’s services. We agree with the District Court, however,

that Konowicz has failed to establish Carr’s economic motivation such that his speech

should be actionable under the Lanham Act. Although Carr admits that he makes roughly

$1,000 a month from his weather services, the District Court found that Konowicz failed

to show these profits—as opposed to myriad other potential motivations—prompted Carr

to publish the article or make the statement.

It is true, of course, that courts have found “[t]hese [Bolger factors] are not

exclusive . . . and the presence or absence of any of them does not necessitate a particular

result.” Radiance Foundation, Inc. v. N.A.A.C.P.,

(4th Cir. 2015).

They are, nevertheless, useful in helping courts make the “‘commonsense’ distinction

between speech proposing a commercial transaction . . . and other varieties of speech.”

Bolger,

. Recognizing that “we err on the side of fully protecting speech

when confronted with works near the line dividing commercial and noncommercial

speech,” Facenda v. N.F.L. Films, Inc.,

(3d Cir. 2008), we perceive

no error in the District Court’s “‘commonsense’ distinction” based on the absence of

proof of economic motivation. Bolger,

.

Because Carr’s statements were not commercial speech, Carr was entitled to

summary judgment on Konowicz’s Lanham Act and unfair competition claims.

11 * * *

For the reasons stated, we will affirm the District Court’s judgment regarding all

but one of Carr’s allegedly defamatory statements. We will vacate and remand for a trial

regarding “The American Meteorological Society (AMS) currently has zero-evidence of

[Konowicz].” We will affirm the District Court’s judgment for Carr on Konowicz’s

Lanham Act and unfair competition claims.

12