Dispatches from the Creation Wars

One of the stories that Terri’s family has been busily trying to push is that Michael may have abused Terri the night of her collapse, leading to her current problems. Bobby Schindler has been on TV repeatedly saying that they have “uncovered evidence” that “seems to suggest” that he may have abused her. But as usual, it’s one thing to make such accusations on TV and quite another to prove them in court. And as it turns out, this too has been adjudicated and dismissed for lack of evidence. According to the Guardian Ad Litem’s 2003 report, the family first began making accusations of abuse back in 1994, not surprisingly just after Michael finally was convinced that Terri’s condition was not going to improve and therefore she should be allowed to die naturally as she wished. They filed motions to have Michael removed as guardian based upon allegations of abuse that had never been made prior to that, when Wolfson confirms Michael and the family were very close and loving with one another. And here is what happened:

As part of the first challenge to Michael’s Guardianship, the court appointed John H. Pecarek as Guardian Ad Litem to determine if there had been any abuse by Michael Schiavo. His report, issued 1 March 1994, found no inappropriate actions and indicated that Michael had been very attentive to Theresa. After two more years of legal contention, the Schindlers action against Michael was dismissed with prejudice.

Dismissed with prejudice means, at the very least, that the claimant is not allowed to bring those charges again because there was absolutely no possibility of proving them correct. And you can certainly see why. The Schindlers are imagining a ridiculous conspiracy to cover up alleged abuse by all of the physicians and nurses who treated Terri the night of her collapse and since then. If there had been any evidence of abuse at all, the treating physicians would have been required by law to report them to the police. But there is no such evidence, and there obviously never was. Yet the family continues to make this claim on television when it was thrown out of court because they couldn’t support it at all. Just another reason why people should ignore all the spectacular claims they hear on TV, where there are no standards of evidence beyond what will get more ratings for the networks.


  1. #1 Mark Paris
    March 29, 2005

    Way, way back in journalism school, we were told that accusing someone of a crime was “libel per se,” at least in Georgia. That means such an accusation must be backed by evidence of some sort (truth being an adequate defense). If that definition is true in Florida, it sounds like Michael Schiavo has a decent case for libel or slander. It would be pretty easy for him to disprove the charge, since it has already been adjudicated.

  2. #2 Timothy Sandefur
    March 29, 2005

    There has been an avalanche of libel and slander in this case against Mr. Schiavo, and yes, accusing someone of a crime is slander per se. However, the Supreme Court has severely restricted the applicability of defamation laws in cases involving public controversy. In Gertz v. Robert Welch, Inc., 418 U.S. 323, 336-37 (1974) the Court explained that the First Amendment “protect[s] defamatory criticism of nonpublic persons who ‘are nevertheless intimately involved in the resolution of important public questions or, by reason of their fame, shape events in areas of concern to society at large.'” (quoting Associated Press v. Walker, 388 U.S. 130, 164 (1967)). When a private person becomes a public figure, he pretty much gives up the right to collect for defamation. How does a private person become a public figure? Well, “Hypothetically, it may be possible for someone to become a public figure through no purposeful action of his own, but the instances of truly involuntary public figures must be exceedingly rare. For the most part those who attain this status have assumed roles of especial prominence in the affairs of society…[or] have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved. In either event, they invite attention and comment.” Id. at 345.

    Unfortunately, I don’t think anyone can deny that Mr. Sciavo thrust himself to the forefront of a particular public controversy. He had every right, and was entirely in the right, to do so, but he could have chosen otherwise. I doubt the courts would say that his legal entitlement and moral justification in doing so prevents him from thereby becoming a public figure. So there’s really nothing he can do to redress these injuries, I think.

  3. #3 raj
    March 30, 2005

    It is probably the case that statements contending that Michael Schiavo is a murderer, although facially statements of fact, would be considered statements of opinion–that is, shorthand for “I believe that MS is a murderer.” I tend to believe that most people would interpret them in that way. I’m not sure that what most people would likely consider to be statements of opinion would be actionable.

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