“I’ve never seen anything like it,” Randy Miller, the attorney representing Sharp, said in an interview with Ars. “This is not the way our free market economy works. It depends on vibrant and robust commercial speech. You can point out comparisons, or shortcomings, in a competitor’s product—the First Amendment protects that.”
Miller believes the gag order would be unconstitutional even if it applied equally to both parties, but the arbitrator only put limits on Sharp’s speech. It also specifically prevents Sharp from talking to regulatory agencies like the FCC.
“The idea that we have a muzzle on our face, even when speaking to federal regulators, really seems off into another solar system,” Miller said. “No matter how this settles out, it is a first of its kind case.”
Sharp’s lawsuit asks for a judicial order declaring the gag order “not recognizable or enforceable in the United States.”
So what is it that Sharp wants to say, exactly? Miller, who’s focused on his client’s commercial speech rights, didn’t get into that. But court records in the earlier-filed California case give some strong hints.
In June, Hisense lawyers filed a motion (PDF) describing Sharp’s allegations about the Hisense-made, Sharp-branded products. Sharp has claimed that the brightness measurements on some products were not as advertised; that the radiation emitted from the products violates FCC standards; that an internal wire harness threatens consumer safety; and that the advertisement of screen size and resolution violates FTC standards.
Hisense didn’t respond to e-mailed requests for comment about the lawsuit.