Stranger Fruit

Epic Takedown of Pivar

Many readers will by now have encountered the (frankly) frivolous law suit filed – for $15 million for Jeez sake- by Stuart Pivar against PZ Myers for negatively reviewing Pivar’s book Lifecode. Peter Irons – retired law professor at UCSD – has shared the following letter he has sent to Pivar:

Dear Mr. Pivar:

I don’t know if this is a current email address for you; I obtained it from the Internet by accessing some of your 2004 correspondence regarding the NYAA affair.

First, let me introduce myself. I am a lawyer (a graduate of Harvard Law School) and am admitted to practice before several state and federal courts, including the United States Supreme Court. I also was on the faculty of Boston College Law School and the University of California, San Diego, where I taught constitutional law from 1982 until my retirement in 2004. My legal specialty is First Amendment law, including the law of defamation, about which I have written in several books and law review articles. I mention this background, quite frankly, to impress you with my credentials in this field, which are substantially greater than those of Michael J. Little.

I might also add that I was a close friend of Stephen Jay Gould, from our college days in the 1950s until his death in 2002. Steve and I were neighbors in Cambridge for many years, and talked extensively about his work in evolutionary biology and paleontology. As an aside, if Steve were still alive, I think he would have a viable defamation action against you for your false statements about his views, but that’s a moot point.

Over the past week, I have become very familiar with your defamation suit against Seed Media Group and Professor Paul Z. Myers, about which I learned from several legal and science blogs that I follow. I have carefully read the complaint that Mr. Little filed on August 16 in the Federal District Court in New York City.

In my professional opinion, this is a very poorly drafted complaint, with no legal merit whatever. I won’t discuss its stylistic deficiencies, which are numerous and which show evidence of haste and sloppiness by Mr Little, which Judge Scheindlin will surely notice.

On a substantive level, the complaint will never survive a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, for "failure to state a claim upon which relief can be based." You allege defamation by Professor Myers on the sole basis of his characterization of the revised edition of your Lifecode book as the work of "a classic crackpot." This was in the context of a fairly lengthy review of your book (following an earlier review of your book’s first version) that was not included or even referenced in Mr. Little’s complaint.

As Mr. Little should have known, by due diligence, Professor Myers’ characterization was protected opinion, not a false statement of fact. As such, it is immune from defamation actions. Mr. Little cited, in paragraph 21 of the complaint, a single case to support your action: McFadden v. U.S. Fidelity & Guarantee Co. (766 So.2d 20). I have carefully read this opinion, which has no precedential value in any state or federal court. The claim in Mr. Little’s complaint that in this case "[t]term ’crackpot’ was considered as actionable as slander per se" in simply not true. This case was remanded by the Mississippi Court of Appeals to the trial court; no trial was held on this question and no subsequent opinion was issued.

More to the point, and a case Mr. Little should have discovered by due diligence, is an opinion of the U.S. Court of Appeals for the Seventh Circuit in Dilworth v. Dudley et al., 75 F.3d 307 (7th Cir. 1996). For your edification, and that of Mr. Little as well, let me summarize and quote from this opinion, written by Chief Judge Richard Posner, one of the most highly respected federal appellate judges. The case involved a book by a mathematics professor at DePauw University, in which he characterized an article by an engineer and amateur mathematicians as the work of a "crank," a term that is synonymous with "crackpot." In upholding the district judge’s dismissal of this defamation case under Rule 12(b)(6), Judge Posner wrote that the term "crank" is an opinion and "is mere ’rhetorical hyperbole.’ … To call a pereson a crank is basically just a colorful and insulting way of expressing disagreement with [the author’s] master idea, and it therefore belongs to the language of controversy rather than to the language of defamation." In my opinion, Judge Scheindlin would be more impressed with Judge Posner’s opinion than in
dictum from a Mississippi judge. Judge Posner, by the way, also wrote that terms like "scab," "traitor," "fake" and "phony" (far more pejorative than "crackpot") "are incapable of defaming because they are mere hyperbole…." Judge Posner added, "By publishing your views you invite public criticism and rebuttal; you enter voluntarily in one of the submarkets of ideas and opinions and consent therefore to the rough
competition of the marketplace."

So, in my opinion, Judge Scheindlin will promptly dismiss your suit. Assuming, for sake of argument, that she does not, your suit faces several insurmountable evidentiary obstacles. First, your complaint alleges that your Lifecode book, in both the 2004 and 2007 versions, was published by "Ryland Press, Inc." My research has turned up no such publisher anywhere in the world. There is, in New York and London, a publisher called Ryland, Peters & Small, but during my recent telephone conversation with a member of their staff, I was told they did not publish your book (they specialize in cookbooks and stationery). So you would certainly be asked during discovery to identify and produce records from "Ryland Press," including sales figures. I also talked with Terry Krohn at Axiom House, which advertises your second Lifecode book; he told me it was not published by him, that he listed it as a favor to you, and that it had no sales to date. It would be impossible for you to prove even one dollar of damages, let alone $15 million.

Finally, you and Mr. Little are subject to monetary sanctions under Rule 11 of the FRCP; I’ll let Mr. Little explain that to you, since he is presumed to know of this potential consequence of filing a meritless suit.

Let me emphasize that I am sending you my opinions as a private party; I do not represent anyone in this suit. You are free to disregard my opinions but, if I were you, I would consider them carefully and instruct Mr. Little to promptly withdraw the complaint.

Sincerely,
Peter Irons, Esq.

And there is little to be added to this.

Comments

  1. #1 Bryn
    August 24, 2007

    After reading that email, I would much, much rather have Mr. Irons on my side than Mr. Little. Sage, well-written advice that I don’t think for a moment Mr. Pivar will take.

  2. #2 Dave Carlson
    August 24, 2007

    The kiddies have a word for this sort of thing: owned.

  3. #3 PuckishOne
    August 24, 2007

    Pardon me while I wipe away a tear…that was beautiful.

  4. #4 G. Williams
    August 24, 2007

    The kiddies have a word for this sort of thing: owned.

    I believe the correct term is: PWNED!

    (The P, capital letters, and exclamation point are very important here. :)

  5. #5 Chris
    August 25, 2007

    With regards to Pivar’s lawyer, an even more appropriate saying has to be STFU, n00b!

  6. #6 Dan
    August 25, 2007

    I always thought it was “PWN3D!!1!”

  7. #7 Blake Stacey
    August 25, 2007

    Duly added to the big list.

  8. #8 jimmiraybob
    August 25, 2007

    I suspect that, in true classic crackpot fashion, Mr. Pivar’s first reaction will be to seek to file suit against the good esquire. And then Judge Scheindlin after she throws out the suit. And then his lawyer. And then a class action suit against the Mighty Darwinist Conspiracy (In which I’m hoping to be named).

    Ultimately, he will spend the rest of his life sitting on park benches ranting and railing to his squirrel army about life’s greatest tragedy.

  9. #9 Fabula
    August 25, 2007

    Nice letter. Would like to see the response, if any.

  10. #10 Frito
    August 25, 2007

    And here we see the best of the legal profession responding to the works of… well, the not so best and the welted ass that results.

  11. #11 Blake Stacey
    August 25, 2007

    Now, we await a message from Neil deGrasse Tyson about the “endorsement” on Pivar’s book, fraudulently attributed to him.

  12. #12 Jewbacchus
    August 25, 2007

    Classy.

  13. #13 Stuart Coleman
    August 25, 2007

    I love Peter Irons, if you haven’t you should definitely check out his books, he’s a fantastic author.

  14. #14 Stanton
    August 25, 2007

    Anybody else get the feeling that Mr Pivar would have had a better case if he had opted to put a horse’s head in Professor Myers’ bed instead of suing him for 15 million dollars?

  15. #15 M
    August 25, 2007

    Wonderfully written…I did notice a typo, though:

    In upholding the district judge’s dismissal of this defamation case under Rule 12(b)(6), Judge Posner wrote that the term “crank” is an opinion and “is mere ‘rhetorical hyperbole.’ … To call a pereson a crank is basically just a colorful and insulting way of expressing disagreement with [the author's] master idea, and it therefore belongs to the language of controversy rather than to the language of defamation.”

  16. #16 whomever1
    August 25, 2007

    I have to say–it seems a little strange to me that someone would submit a book of this sort to PZ at all, unless they had Perry Mason fantasies about getting PZ to break down in tears and admit Pivar was right. I mean, the squid-guy is usually more abrasive than not.

  17. #17 Mytho
    August 25, 2007

    This is so beautiful, I can’t think of a better way to put it. Some blogger I know that writes agains krackpots and the sort received a similar threat of lawsuit, he promptly answered that he was SO grateful for the threat of it, to think that he could go to a court of law with a claim simmilar to the one against PZ was really great! To have a chance to unveil the claims of one of this guys in front of a judge, and the chance to demonstrate once and for all the lies of the guy who threatened him was so deligtful that he could hardly wait for it. The lawsuit never happened, sadly :(

  18. #18 Ophelia Benson
    August 25, 2007

    Here here about Peter Irons’s books. They’re terrific.

  19. #19 chris y
    August 25, 2007

    the Mighty Darwinist Conspiracy (In which I’m hoping to be named)

    I am Spartacus.

  20. #20 Theda
    August 25, 2007

    But, perhaps it is demonstrably true that Pivar is a crackpot. We have crackpot indices, don’t we (e.g. John Baez). Remeber what happened to Oscar Wilde when he sued the Marquis of Queensbury. It might be more fun to have a trial.

  21. #21 Michael
    August 25, 2007

    If this was a PR stunt I hope Mr. Privar’s goal was to convince the world that he is a petty, thin-skinned retard, ’cause that is all he is going to achieve. It also sounds like he should use his fortune to procure more capable legal counsel.

    Here is my favorite quote:

    Judge Posner added, “By publishing your views you invite public criticism and rebuttal; you enter voluntarily in one of the submarkets of ideas and opinions and consent therefore to the rough
    competition of the marketplace.”

    Word.

  22. #22 Chris
    August 25, 2007

    I agree with the sentiment that Pivar and company were, in fact, pwn3d :) It’s also nice to see that the precedent in a case like this is actually in favor of the ‘good guys’.

  23. #23 Niobe
    August 25, 2007

    that it had no sales to date. It would be impossible for you to prove even one dollar of damages, let alone $15 million.

    oooooh SNAP!

    That’s a burn for the ages.

  24. #24 Peter M.
    August 25, 2007

    As a retired lawyer with a fair amount of First Amendment knowledge, Atty. Irons is 100% correct.

    Pivar’s suit reminds me of the case in the District of Columbia in which an administrative law judge sued a local dry cleaning establishment for a grotesque sum over an allegedly lost pair of pants. The plaintiff has essentially ruined himself financially — he may not get reappointed to the bench because of his shenanigans.

  25. #25 Melissa G
    August 25, 2007

    This is brilliant. I will definitely check out Irons’s books!

    Well– looks like someone can look forward to an increase in book sales as a result of this lawsuit! Just not Pivar.

  26. #26 Les Lane
    August 25, 2007

    The obscurity of the publisher (Ryland) suggests that it’s either a vanity press or that the book is self published. Crackpots favor this form of publishing.

    Novel hypotheses, especially those w/o obviously testable predictions, are prone to be ignored by scientists. Those who promote such hypotheses must make influential contacts within the field. Either they’ll help the idea gain acceptance or they’ll advise against publishing. If advice is universally against publishing, any reasonable author will accept the advice or persevere until the hypothesis can be expressed in a recognizably acceptable way.

  27. #27 Susannah
    August 25, 2007

    Melissa: “Well– looks like someone can look forward to an increase in book sales as a result of this lawsuit! Just not Pivar.”

    Well, someone might buy one copy of that second book, just for laughs. One person, one copy. That’s a humongous increase, if Irons is correct.

  28. #28 tom hall
    August 25, 2007

    A good mind to have on your side!

  29. #29 Lux
    August 25, 2007

    Wow. That was all kinds of fabulous to read. :)

  30. #30 Kausik Datta
    August 25, 2007

    Oh, I absolutely loved the letter by Mr. Irons!! Clear, precise, free from unnecessary legalese, and oh! what a smashing take-down!!
    I wonder whether Pivar or his Little lawyer would have the guts to respond… Hmmmmm!

  31. #31 Graculus
    August 25, 2007
  32. #32 tourettist
    August 25, 2007

    When I checked Lifecode‘s ISBN at http://www.books-by-isbn.com I got the following:
    “Sorry – 0976406004 is a numerically correct ISBN, but we have not gathered data on this title yet. On the occasion of your present request we have queued the generation of a page concerning this ISBN. This page will be generated, if possible, within the next few hours. Please check back at this URL later.”

  33. #33 Mr. Upright
    August 26, 2007

    A wonderful smackdown. I especially perked up at “Dilworth v. Dudley et al.”

    Last spring I met Underwood Dudley at a conference and spoke to him about his books on mathematical cranks. I don’t recall him mentioning a lawsuit. I did immediately go out and buy three of his books: “Mathematical Cranks,” “The Trisectors”, and “Numerology: Or, What Pythagoras Wrought.” Good reads, especially for someone like me who asked the physics dept. secretaries to forward every bit of crank lit sent by the deluded self-published.

  34. #34 Vjatcheslav
    August 26, 2007

    I love that little bit of sarcasm against fools who are incapable of getting something correct.

  35. #35 Physics309
    August 26, 2007

    I have been reading a lot of legal documents the last few years and have come to have a great appreciation for a well-written legal document. A good one will have a well-expressed and systematic flow of logic that is supported with law, evidence, and precedent than anyone with an education can follow. Mr. Iron’s letter exhibits all of these characteristics. I think all scientist should spend time reading these kinds of documents to help them become better writers. Certainly, many of the published scientific papers I have read could stand to follow their example.

    Some the posted comments have been excellent, as well.

  36. #36 nulldevice
    August 26, 2007

    Isn’t Judge Judy’s name “Judy Scheindlin”? Maybe they’re taking this case to Judge Judy!

    I think the bit about “no sales” is very telling, and not entirely surprising. No sales? Well, that’s OBVIOUSLY because of the cruel Darwnist orthodoxy keeping the guy down. And the lawsuit gets thrown out? Well that too is OBVIOUSLY because the godless judicial activists are trying to spread evil secularism throughout this good christian nation.

    Call me cynical, but it seems to me (protected opinion! Speculation! Don’t sue me!) Pivar and Little have to know their suit is entirely groundless, and are using this as an excuse to drum up publicity for a book that would otherwise not even get noticed, and then also to make Pivar himself a martyr for the ID movement.

  37. #37 JanieBelle
    August 26, 2007

    Heh. Check out the customer generated tags at Amazon

    “balloon animals” “crackpot” “crank” “crap” etc. etc.

    Good chuckles there.

  38. #38 The Science Pundit
    August 26, 2007

    Heh. Check out the customer generated tags at Amazon…

    “balloon animals” “crackpot” “crank” “crap” etc. etc.

    Good chuckles there.

    Posted by: JanieBelle |

    We should Google Bomb him by writing blogposts where we all hotlink the word “crackpot” to Pivar’s book.
    :-D

  39. #39 gerald spezio
    August 26, 2007

    Anytime you see a functional analysis of the legal extortion racket, you must guard against further brain damage by those who profit most from the system that gives them extraordinary power. We don’t want to get overly bogged down in a swamp of mystifying legal prodcedure lest we miss all the money changing hands amidst the classy suited professionalism and fraternity back slapping. A good scientist would be charged with quantifying the money changing hands. Remember, attorney’s fees are confidential – IT’S THE LAW OF THE LAND.
    Harvard lawyer, Peter Irons tells us that fellow Harvard lawyer, Dick Posner, is a “highly respected federal appellate judge.” Here is some alternative data for a more learned appraisal of Posner’s professed intellectual abilities. http://www.nybooks.com/articles/187

  40. #40 pixel
    August 26, 2007

    As kids say:
    “Learn 2 sue mister Little! PWNED n00b!”

  41. #41 bza
    August 26, 2007

    Harvard lawyer, Peter Irons tells us that fellow Harvard lawyer, Dick Posner, is a “highly respected federal appellate judge.” Here is some alternative data for a more learned appraisal of Posner’s professed intellectual abilities

    Um, the Posner takedown you link to is by Ronald Dworkin, who is himself a graduate of Harvard Law. So, you might want to dial down the snark about HLS.

  42. #42 AnthonyH
    August 26, 2007

    Gerald (#39):

    Harvard lawyer, Peter Irons tells us that fellow Harvard lawyer, Dick Posner, is a “highly respected federal appellate judge.” Here is some alternative data for a more learned appraisal of Posner’s professed intellectual abilities.

    Dworkin’s article would be better characterized as a high-level debate on ethics and legal scholarship, than as a takedown of Posner. Dworkin is indeed a legal scholar of merit and importance, but on what basis do you characterize him as “more learned” than Posner? Also, Posner is still a federal judge, which is a lifetime appointment; in essence he defines the law. Dworkin writes about and teaches the law, but his writings are not legally binding.

  43. #43 Ick of the East
    August 27, 2007

    I think all scientist should spend time reading these kinds of documents to help them become better writers.

    Or they could just read Darwin. In the first (and only) law class I ever took, we were assigned the chapter in Origin concerning the evolution of the eye. Why? Because it was one of the best written arguments my professor had ever read.
    .

  44. #44 Dawno
    August 27, 2007

    I clicked the link at comment #32 then clicked through on the Ryland Press, Inc. hyperlink. It only shows two books – 2004 978-0-9764060-0-6 Stuart Pivar LifeCode: The Theory of Biological Self Organization and 2007 978-0-9764060-9-9 Stuart Rivar Lifecode: From Egg to Embryo by Self-Organization.

    Interesting.

  45. #45 gerald spezio
    August 27, 2007

    bza, No, dial it up, and make it ring loud and clear. We are now about to get a total dose of Israel Firster, Chertoff, another legal whore out of Harvard Law. Always listen to your betters.

  46. #46 gerald spezio
    August 27, 2007

    AnthonyH, Debating ethics and legal scholarship is like debating whether of not the celestial angels did it. “High level” debate about lawyer “ethics” is like discussing deep conundrums about the angels’ wings. Legal ethics are in the category, “Yuppie Weapons of Career.” Somebody has to pay for all this legal horseshit.

    Michael Chertoff, Esquire knows all about professional ethics and how to file these mystifying ethics under career and money grubbing tools. He learned how to play “yuppie extortion racket” at Harvard Law.

    Harvard Law is “the best” for rapid career advancement.

  47. #47 michael
    August 27, 2007

    If only Mr. Pivar knew the difference between Fact, Fiction, and the thruth.
    Polio, Measles, and most BIOLOGY based chemistry works well with HOMEPATHIC methods. If it isn’t biology based then often it is meant as humorous among the educated. The uneducated can not tell inorganic chemistry from organic chemistry (OR I will clarify and classify— People who are not scientific ethical, which includes lawyers and business and theological arenas.). I even encounter PHD scientists who are born after 1940 who do not act with the plumb wonder the scientists born before 1940 did and do. However that can be forgiven if they engage in GOOD discussions and correct scientists with less than a PHD using solid math and science (bio-chem-physics) rather than with PSYCH (which is an art not a science!).. That clears up the misunderstanding all the time.

  48. #48 mike j
    August 27, 2007

    what a joke..

    Even if you have to pay a large sum to the person who you sued “frivolously” so be it..

    Its worth the money to see PZ have a headache.. and must be pretty serious if PZ is having his cronies come out and write legal “defence” directly to the person who is taking legal action.

    I guess Pivar struck a nerve!

  49. #49 triviality
    August 27, 2007

    I wonder if ‘Ryland Press’ has anything to do with Mark Ryland, the former Vice President of the Discovery Institute…

  50. #50 Sigma Orionis
    August 28, 2007

    If I had written Mr. Iron’s letter (which of course, not having any substantive knowledge of law, I can’t, so chalk it up to ‘if ran the zoo’) At the end of the letter I would have paraphrased Humma Kavula:

    “And Incidentally, you ARE a Crackpot”……..

  51. #51 RealityBytes
    August 28, 2007

    Its worth the money to see PZ have a headache.. and must be pretty serious if PZ is having his cronies come out and write legal “defence” directly to the person who is taking legal action.

    If you read the last paragraph of the letter, you’ll find this: “Let me emphasize that I am sending you my opinions as a private party; I do not represent anyone in this suit.”

    It’s pretty clear that Mr. Irons wrote the letter of his own accord based on his knowledge of this area of the law, not because PZ asked him to. You need to work on your basic reading and comprehension skills, mike j.

  52. #52 Monado
    August 28, 2007

    Nice post, John! I’ll look up Peter Irons’ books. I want to put that letter into my blog just so I can admire it whenever I want to.

  53. #53 Don
    August 30, 2007

    For those who don’t know of him, Peter Irons argued and won a case before the U.S. Supreme Court in the early 1990′s.

    Good guy. I am very priveleged to be able to say that as an undergraduate I had a constitutional law class with professor Irons.

    He was a perennial student favorite on campus, and spoke at my graduation ceremony by popular demand.

    A number of years later I ran into him at the campus pub. This was within a year or two of his success before the SCOTUS, and I actually first heard the news right then from him directly, since I’d been totally unaware he had even been arguing that case.

    He’s pretty unassuming in person and a very congenial guy.

    And smart. I should have known he would be the one to come out and politely kick Pivar’s crackpot ass all over the internet.

    Cheers.

  54. #54 Kim Scarborough
    September 8, 2007

    I don’t know about you, but I’m sorry I missed Pivar’s information-filled seminar.