United States Court of Appeals For the Seventh Circuit ____________________ No. 20-2169 NEXT TECHNOLOGIES INC., Plaintiff-Appellant,

v. BEYOND THE OFFICE DOOR, LLC (doing business as BTOD.com), Defendant-Appellee. ____________________

Appeal from the United States District Court for the Western District of Wisconsin. No. 19-cv-217-wmc — William M. Conley, Judge. ____________________

ARGUED JANUARY 12, 2021 — DECIDED MARCH 24, 2021 ____________________

Before EASTERBROOK, WOOD, and ST. EVE, Circuit Judges. EASTERBROOK, Circuit Judge. Does the Constitution of the United States tell us the limits of criticism in reviews of standing desks? The district judge thought that it does, treated the plaintiff (a seller of office products) as a “limited purpose public figure,” and ruled in favor of the reviewer— which sells a competing line of standing desks—under the First Amendment. 2020 U.S. Dist. LEXIS 102413 (W.D. Wis. 2 No. 20-2169 June 10, 2020) (relying on New York Times Co. v. Sullivan, 376 U.S. 254 (1964), and GerA v. Robert Welch, Inc., 418 U.S. 323 (1974), among other decisions). Call us skeptical about using the Constitution rather than state law or the Lanham Act, 15 U.S.C. §1125, to resolve a fight about products’ aiributes. But we need not decide what the Constitution has to say about this subject, because Next Technologies, the aggrieved manufacturer, lacks a good claim under Wisconsin law. Next Technologies, a maker of office equipment, touts its standing desks as the best in the industry, and it refers po- tential customers to reviews that rate its products highly. So it was dismayed when Beyond the Office Door published reviews critiquing the EvoDesk and NextDesk Terra models. Beyond the Office Door sells many makers’ office products, some under its own brand, so it is a competitor to Next. A firm unhappy about a rival’s statements often resorts to the Lanham Act, but Next did not. Instead it sued under the di- versity jurisdiction, relying on Wisconsin’s common law of defamation. The district judge treated product reviews and political commentary as equivalent and turned straight to the Consti- tution, holding that because Next is a “limited purpose pub- lic figure”—made so by its own efforts to sell its wares—all criticism by a competitor is constitutionally protected unless the statements are knowingly false or made with reckless indifference to their truth. That high standard has not been met, the judge ruled. On the district court’s approach, few claims under the Lanham Act ever could succeed, and com- mercial advertising would be treated just like political cam- paigning. No. 20-2169 3

One court of appeals took that path 41 years ago, see Steaks Unlimited, Inc. v. Deaner, 623 F.2d 264 (3d Cir. 1980), but neither the Supreme Court nor any other court of ap- peals has endorsed that approach. We do not reach any con- stitutional issue today, because we follow the norm that questions under statutes and the common law must be re- solved ahead of constitutional theories, which should be ad- dressed only when their decision is inescapable. See, e.g., New York City Transit Authority v. Beazer, 440 U.S. 568, 582 (1979). The district court’s opinion includes a comprehensive list of the subjects in dispute between the parties. A brief de- scription of a few suffices for our purposes. For example, the review of the NextDesk Terra published on November 1, 2017, states that the desk has mismatched colors and in- cludes this photograph, which shows a vertical column in painted gray and a horizontal piece in bare metal: 4 No. 20-2169 Next asserts t