White Coat Underground

A major victory for science-based medicine

The following is a collaborative effort by PalMD, the usual author of this blog, and Ames Grawert, JD, a soon-to-be-sworn-in attorney working in New York City.

Proponents of science-based medicine have always had one major problem—human beings are natural scientists, but we are also very prone to cognitive mis-steps. When we follow the scientific method we have developed, we succeed very well in understanding and manipulating our environment. When we follow our instincts instead, we frequently fail to understand cause and effect. This is how people on the fringes of medicine and science survive—intentionally or otherwise, they exploit our natural tendency to have too much faith in our own non-systematic observations.

One of the most important examples of this is the anti-vaccination movement (hereafter called the “infectious disease promotion movement” or IDPM). There have always been those suspicious of medicine and science, but the IDPM has taken this a step farther. They encourage people to “go with the gut”, ignoring centuries of science and public health data in favor of superstition. It’s not hard to exploit a parent’s fears. But exploiting these fears leads to real harm as many of us in the blogosphere have documented (and documented, and documented).

The IDPM is so fixed on their false beliefs that vaccination causes some sort of serious harm that they cannot be swayed by evidence. As each piece of their hypothesis is disproved, they move on to the next. Thimerosal doesn’t lead to autism? Then maybe it’s “the toxins”. Once the idea is fixed, there is no way to dislodge it. It simply shifts around a bit.

Since there is no science to lend legitimacy to the infectious disease promoters, they must rely on appeals to emotion. Most of their websites are full of testimonials, misinformation, and outright hostility. And when they really get backed into a corner, rather than hunkering down to do some real science, they sue.

Dr. Paul Offit is a nationally known expert on vaccination. He was featured in an excellent article by WIRED reporter Amy Wallace in which he said, among other things:

She lies.

The “she” in this instance is Barbara Loe Fisher, one of the leaders of the infectious disease promotion movement. She didn’t like this at all. Among her complaints she alleges the following:

The purpose of the Wired article was to create the impression that anyone not in support of universal and mandatory vaccination is irrational, uneducated, unscientific, controlled by fear and a danger to the public health. Wallace and Offit combined in an effort to defame and discredit those not in favor of universal and mandatory vaccination and singled out Plaintiff Fisher, whom the article describes as the “movement’s brain,” and the “media’s go-to interview for … ‘parents [sic] rights’” for condemnation as a liar.

To many physicians and scientists, this type of claim is hard to understand. Science is a process for finding and understanding facts. People can become emotionally tied to their work but science doesn’t care, and scientists often have vigorous debates about their work. Real scientists and real doctors must have thick skins.

So when someone is so attached to their own scientific opinion that they feel a need to use the legal system to protect their beliefs, many of us are left scratching our heads. Why wouldn’t she just try to find evidence to support her beliefs? How can a court possibly have something useful to say about a scientific question? What the Hell?

If you’re thinking that the law shouldn’t work this way — that angry combatants in the battle of ideas shouldn’t be able to leverage defamation law into silencing their more strident critics — you’re right. And it doesn’t. For better or worse, the American first amendment is a vigorous creature. Where other countries would hold defendants liable for negligently false and offensive speech, American law prefers that ideas be spoken, and their value decided by informed citizens, rather than lawyers and judges. This is actually a relatively novel topic in conflict of laws jurisprudence, and regardless of whether its assumption about the intellectual capacity of our public is accurate, it’s a uniquely American approach to the law, and one that Fisher completely ignores.

(FYI — all cases noted below in parentheses are Supreme Court cases, and therefore circumscribe any state defamation law. We don’t even need to reach beyond federal constitutional law to show where Fisher goes wrong.)

Virginia’s defamation laws follow the traditional American model, (although it eliminates the slander/libel, or speech/print distinction). Virginia therefore requires a showing of objective falsity, and a degree of malice, before defamation can be proven. The latter is keyed partially to whether the person pleading defamation is a “public person.” Because citizens should be free to question their leaders, as a matter of free speech, courts will only hold a defendant liable for defaming a public figure if the defamation occurs with actual “Sullivan” malice (referring to a famous Supreme Court case).

Accordingly, it becomes important to define a “public person.” While a private person speaking on a public matter — e.g., a small-time attorney commenting on a high-profile case — counts as “private” (Gertz v. Robert Welch), someone who voluntarily inserts herself in the role of shaping public opinion is a public person (Curtis Publishing v. Butts).

This distinction exists precisely because of people like Fisher. While she’s not a household name, she styles herself an opinion-maker, and has taken the requisite actions to make herself just that.

Critically, when it comes to public figures, the first amendment protects hyperbole, and some pretty wicked satire, too (N.Y. Times v. Sullivan; Hustler Magazine v. Falwell). A statement about someone’s character and honesty — “she lies” — may be offensive. But it’s this kind of vigorous dialogue that the first amendment not only protects, but encourages. Any conclusion to the contrary would hold our capacity for public debate hostage to a few sensitive players who “can’t take the heat.”

If you want a poignant example of just what Fisher’s argument would deprive us of, look no farther than her complaint. While talking about alleged distortions in the Wired interview, she writes:

Although before the Wired article appeared Defendant Wallace interviewed Plaintiff Fisher at length and derived substantial information from her concerning the risks and rights issues that mandatory vaccination begets, she chose not to include content reflecting that information in her article. (emphasis ours)

Give her credit for honesty: Fisher isn’t hiding the fact that, if we accept her argument, the editorial decisions of newspapers are now suddenly subject to judicial review. It may be that American defamation law is too generous, providing too much room for offense. But the line for which Fisher advocates would change one problem for a far more grave one.

In critiquing Fisher’s decision to “lawyer up,” we might also consider her choice of forum. Why federal court? First, note that the sole basis for federal jurisdiction in Fisher’s complaint is “diversity of citizenship.” She’s not pleading a violation of federal law; she’s pleading state-law defamation, but because the Constitution’s framers imagined federal court as a neutral ground between citizens of different states, federal jurisdiction is proper.

In diversity cases, federal courts apply state substantive law (there is no federal common law*). So she’s not trying to avoid state law. I suspect this is a prestige thing. Suing in federal court sounds better than suing in state court, requires better lawyers, and therefore costs more. Call it the Birther/Orly Taitz instinct. Even though litigating in federal court is impossible given the nature of her claim, she’s (Fisher, like Taitz) spurned the (slightly) more plausible venue of state court for the glory of federal court. It’s not gone well for Taitz.  Count this as still further proof that Fisher’s real desire is publicity, and the slim chance of vindication — not the redress of any real legal grievance.

Fisher’s actions betray a fundamental misunderstanding of both science and law. Science requires conflict, and the law does not protect us from the consequences of our ideas or the negative opinions of others. A free society cannot thrive on suppression of conflict, and science cannot progress without an atmosphere that allows vigorous, sometimes painful, debate.

Even before knowing the outcome (which is almost certainly going to sting for Fisher), this case is a major victory for those who favor free speech and the role it plays in science. It highlights the desperation of those whose cult-like beliefs are being discarded by the reality-based community. As the foundations of their beliefs rot, they cling to the hope that the law will save them from the onslaught of science. But they are likely to discover a painful fact: just as you have a right to your own beliefs, others have the right to remark on their arbitrariness and idiocy. Science, like the law, allows us to have our own opinions, but not our own facts.

For further analysis:

Comments

  1. #1 Marilyn Mann
    January 7, 2010

    I’m thoroughly confused by this post. What hasn’t gone well? The lawsuit was just filed.

    The words “It hasn’t gone well” link to a lawsuit involving the birthers and Orly Taitz. I thought we were talking about Fisher’s lawsuit.

    She’s suing under the theory of defamation per se. I have no idea whether she has a good case for that or not, but I thought defamation per se did not require a showing of malice. Can you address whether or not the words “you lie” are defamation per se under Virginia law?

  2. #2 PalMD
    January 7, 2010

    I guess I’m confused about what you’re confused about. The analogy is to other cases where people seek out supposedly more favorable venues to get shot down.

  3. #3 Marilyn Mann
    January 7, 2010

    I’m confused for the following reasons.

    1. You say Fisher will have to show malice, but she is suing under a legal theory that does not require a showing of malice.

    2. The grounds under which the birther lawsuits were thrown out do not seem to be applicable here. This is a state law case brought in federal court under diversity jurisdiction. The lawsuits brought by Orly Taitz purport to be on federal law grounds.

    3. When you said “It’s not gone well,” I assumed from the context that you were referring to the Fisher lawsuit. Apparently, you were referring to the birther litigation.

    4. Since this case has just been filed, isn’t it premature to declare victory? Don’t get me wrong, I would love to see the case dismissed, but so far as I know that hasn’t happened yet.

  4. #4 JScarry
    January 7, 2010

    I was confused as well. You mentioned Orly as an example of someone who files in federal court but the next sentence implies that it is not going well for Fisher. I clicked on the links thinking that there would be more information on this case but it was about the birthers.

    It looks like you think that the ‘she’ refers to Taitz but readers are thinking it applies to Fisher.

  5. #5 PalMD
    January 7, 2010

    I’m declaring victory because simply filing the suit shows the complete bankruptcy of her cause.

    As to the other q’s, i’ll be deferring to the co-author.

  6. #6 Marilyn Mann
    January 7, 2010

    “I’m declaring victory because simply filing the suit shows the complete bankruptcy of her cause.” OK, now I see your point. Sorry, I was “thinking like a lawyer” lol.

  7. #7 PalMD
    January 7, 2010

    As to malice (and I’m counting on someone else to parse this out for me), Virginia law appears to require malice as part of a defamation suit.

  8. #8 Briana
    January 7, 2010

    It doesn’t matter what Virginia law requires because, under the Supreme Court’s explication of first amendment defamation doctrine, malice (or speaking with reckless disregard or knowledge of falsity) is ALWAYS required, despite what state law may have previously required.

  9. #9 Ames
    January 7, 2010

    #8′s got it. I didn’t address the Virginia state law issue because regardless of the Old Dominion’s take on defamation law, defamation of a public person requires actual malice plus falsity, and there’s a super-high bar for malice, which hyperbole or mere incendiary rhetoric won’t get you over.

    As to the Orly point, I’m sorry if I didn’t make it clearer, but I was using Orly as an example of someone who, like Fisher, is drawn to the prestige of federal court without really knowing what she’s doing. It’s not going well for Orly; Fisher’s less egregious, but I expect it won’t go well for her either.

  10. #10 Ames
    January 7, 2010

    My fault, apparently, was using the ambiguous “she” to refer to Orly in the first and second sentences, then switching back. Let this be a lesson to all!

  11. #11 D. C. Sessions
    January 7, 2010

    If I understand other related commentary, malice is part of the “public figure” aspect. For a public figure, it’s not sufficient that a statement is false and defamatory; it’s also necessary that the false statement was made with “reckless disregard for the truth” or “actual malice.”

    The “defamation per se” only seems to apply to damage theories.

    IANAL — and I trust that someone who is will correct me.

  12. #12 Marilyn Mann
    January 7, 2010

    I stand corrected. In defamation per se, you don’t have to prove damages (harm to reputation). I was relying on my memory, always dangerous!

    I still wonder whether Offit et al. have evidence that Fisher is lying (i.e., that her statements are not only untrue, but that she knows they are untrue). My guess is that she really believes the BS she spews out.

  13. #13 Ames
    January 7, 2010

    Per se is a way to bypass the necessity to prove damages when the subject is egregious, but it only attaches in some pretty heavy scenarios (saying someone has a “loathsome disease” [STD], is dangerously incompetent at your job, or impugning the chastity of a woman). There, damages are presumed.

    Soooo… Defamation per se is pretty dated.

  14. #14 Ames
    January 7, 2010

    The delicate dance required to prove that someone “knows” they’re lying is one of the reasons that calling someone a liar isn’t defamation ;-)

  15. #15 Marilyn Mann
    January 7, 2010

    @Ames #13 I agree, and I am not asserting that she will be able to prove defamation per se. I would have to study the case law before I would have an opinion on that.

    @Ames #14 Can you cite the cases that support that? Not saying you’re wrong — I have no idea, and I’m curious.

    This is not my area of law — I’m a securities lawyer.

    Also, can you explain why dismissal of the birther suits is analogous here?

    Thx.

  16. #16 PalMD
    January 7, 2010

    From my perspective as a non-lawyer, the dismissal of birther suits is, rather than a legal analogy, a strategic one. Birthers go to the federal courts for “cachet” and instead get a heaping bucket of fail (and fines).

  17. #17 Tsu Dho Nimh
    January 7, 2010

    Can I suggest a rewrite to clear out the confusion. I too thought the links would be to some legal face-slap administered to Fisher and was befuddled by the links.

    Call it the Birther/Orly Taitz instinct. Even though litigating in federal court is impossible given the nature of Taitz’s claim, she has spurned the (slightly) more plausible venue of state court for the glory of federal court and it has not gone well for Taitz.

    Count this as still further proof that Fisher’s real desire is the publicity of a FEDERAL LAW SUIT, and the slim chance of vindication — not the redress of any real legal grievance.

  18. #18 Circus Act
    January 7, 2010

    Why do you people care so much? Been following this whole “New Atheist Movement” for the past few years and I really cannot get over how deeply victimized you all are. Is that the game act ilike the victim and you’ll get power that way? Does any atheist doctor ever make a mistake? Yeah, and when you do you get sued. Deal with it.

  19. #19 daedalus2u
    January 7, 2010

    There is some precedent in food disparagement laws, that people who disparage a perishable agricultural commodity without scientific basis can be liable for damages.

    http://www.cspinet.org/foodspeak/laws/states/georgia.htm

    The flu vaccine is certainly an agricultural product, it is grown on live fertilized chicken eggs. It certainly is perishable because it has a limited shelf life and because the strains susceptible to it mutate and become resistant. I think there is a plausible case for flu vaccine manufacturers, or those stuck with vaccine that cannot be used, to sue the anti-vaxers for damages for product disparagement.

  20. #20 Vicki
    January 7, 2010

    Religion has nothing to do with it. A few posts back, we are reminded that vaccination is a mitzvah.

    Truth matters, and public health matters. We care because the anti-vaxxers are literally taking other people’s lives into their hands. They are endangering strangers, and their own children, because of their delusions.

  21. #21 Ames
    January 7, 2010

    #17, that’s precisely what I meant. Thank you!

    Marilyn, (1) Pal nailed the analogy, and (2) the question I’m trying to answer is not whether it fits the definition of libel per se, because I don’t think I have to answer that question. I’m trying to dispose of it on the grounds that saying “she lies” isn’t malicious enough to meet the Sullivan standard for actionable libel against a public figure. There, I find support in Part III of NYTimes v. Sullivan Actual malice is a high bar — it requires a reckless disregard for falsity and damage, and I doubt Fisher can even get to “falsity.” I’m not trying to argue this on Virginia law — I’m arguing it on the grounds that a reading of the first amendment which fails to protect a fairly commonplace pejorative is inconsistent with history, case law, and, at the risk of sounding schlocky, our spirit as a people :).

  22. #22 Marilyn Mann
    January 7, 2010

    *prints out NY Times v. Sullivan*

    OK, I’ll take a look. If I were representing the defendants, however, I would certainly try to argue that “she lies” is not defamation per se, and that she has to show damages in order to have a cause of action for defamation. I would also argue the constitutional issues.

    I guess the analogy to Orly Taitz does not seem a particularly close one to me. Certainly, if this case is dismissed because Fisher is a public figure and has not shown malice, I would not expect any sanctions against Fisher’s counsel. This just does not rise to that level of frivolousness. Just my opinion, FWIW.

  23. #23 Prometheus
    January 7, 2010

    Congrats Ames Grawert, JD, a soon-to-be-sworn-in attorney!

    Welcome to the club *high fives*.

    It is my considered opinion that Jonathan Emord (attorney for petitioner)is a monumental self serving douche.

    Thoughts?

  24. #24 Anne
    January 7, 2010

    Marilyn, there’s an interesting case from Judge Hilton, the same judge who’s been assigned in Fisher’s case – Hatfill v. New York Times, 488 F.Supp.2d 522 (E.D. Va. 2007), aff’d,. 532 F.3d 312 (4th Cir.), cert. denied, 129 S. Ct. 765 (2008). Hatfill was a defamation case by a scientist who was falsely suspected of sending anthrax through the mail after 9/11. Judge Hilton granted the defendant’s summary judgment motion. There’s a long discussion in Judge Hilton’s decision of the evidentiary standards for proving actual malice by a public figure plaintiff. According to Judge Hilton, there must be clear and convincing evidence that the defendant either knew the statement was false, or “in fact entertained serious doubts as to the truth” of the statement. That is a high bar.

    Now I’m wondering if there’s a conflict of laws issue as to the claim against Dr. Offit, since Virginia apparently has a “place of publication” rule for determining which state’s law applies. Galustian v. Peter, 561 F.Supp.2d 559, 565 (E.D. Va., 2008). If Dr. Offit’s publication was to Amy Wallace, where did that publication occur? California? Yet another twist in an interesting case.

  25. #25 Calli Arcale
    January 7, 2010

    Circus Act — well, that was random. You’re the first person to bring up religion in this thread. Are you one of those people who thinks science is somehow in opposition to religion, so if something must be scientific, it must be atheistic? And that expressing an opinion contrary to yours constitutes “victimization”? I must blow your mind — I’m a passionate Christian, and a skeptic. New Atheism Movement, my ass. This is about *science*, not religion. There *is* a difference.

    (Sadly, the Atheists Alliance demonstrated that pretty well when they gave the Dawkins award to Bill Maher. Atheist, yes. Scientific, definitely not.)

  26. #26 D. C. Sessions
    January 7, 2010

    OK, I’ll take a look. If I were representing the defendants, however, I would certainly try to argue that “she lies” is not defamation per se, and that she has to show damages in order to have a cause of action for defamation. I would also argue the constitutional issues.

    How would you rate a counterclaim for defamation based on the same statements that drew the “she lies?” It would seem offhand that if Dr. Offit prevailed on a claim of defamation then it would pretty thoroughly spike her claim regarding “she lies.”

    As always, IANAL. Please correct as appropriate.

  27. #27 PalMD
    January 7, 2010

    Circus Act sounds very much like (but probably is not) Dave Mabus/Dennis Markuze, a wacko Nostradamus-worshiping atheist hater who regularly spams science bloggers with violent emails threatening their demise.

  28. #28 D. C. Sessions
    January 7, 2010

    It is my considered opinion that Jonathan Emord (attorney for petitioner)is a monumental self serving douche.

    Fortunately for many of us, that’s not a capital offense.

    The question in my mind, though, is whether he’s flirting with Rule 11 — as hard as it is to actually cross that line.

  29. #29 Prometheus
    January 7, 2010

    Emord is a professional woo advocate/diva. He lives on the Rule 11 line. It is repulsive that he has the audacity to call himself a free speech advocate with a briefcase full of sketchy libel suits from self styled toxin docs and naturopaths.

  30. #30 FreeSpeaker
    January 7, 2010

    While your term for anti-vacs is good, I have used the term “Anti-vaccination liar, pro-infectious disease merchants of disability and death.” It covers all bases because anti-vac liars harp on death and forget the disabled victims.

    Offit has the best defense, i.e. the truth. All he has to do is show her lies about him on her website.

  31. #31 Vince Whirlwind
    January 7, 2010

    Sounds like the worst-case scenario is a massive costs bill for Barbara Loe Fisher.
    Best-case scenario would be if it turns out the non-profit organisation she fronts is legally not allowed to pay her costs and her being forced to pay them herself.

  32. #32 Marilyn Mann
    January 7, 2010

    @D.C. Sessions

    I assume that if Fisher is a public figure in this context, so is Offit, meaning that it would be hard for him to prevail in a defamation action against Fisher, for the reasons previously discussed.

  33. #33 Marilyn Mann
    January 7, 2010

    @Prometheus

    I just googled Jonathan Emord, and I see what you mean. He is huge douche.

  34. #34 Chris
    January 7, 2010

    One of the links I saw when I googled Emord was an appearance on a Kevin Trudeau show!

  35. #35 Cuttlefish
    January 7, 2010

    We need to have a talk about vaccines–
    The evidence is right before your eyes,
    And everybody knows just what that means

    When journalists can peek behind the scenes
    And see the anti-vaxxers through disguise
    We need to have a talk about vaccines.

    Their science isn’t worth a hill of beans
    And so the anti-vaxxers turn to lies
    And everybody knows. Just what that means

    May not be clear. The argument careens
    From point to point, and if you cross your eyes,
    We need to have a talk about vaccines.

    But if you look more clearly, through the screens
    And clouds, their falsehood dies,
    And everybody knows just what that means.

    They use, instead, publicity machines
    Which amplify their pseudoscience cries:
    “We need to have a talk about vaccines!”
    And everybody knows just what that means.

    http://digitalcuttlefish.blogspot.com/2010/01/we-have-to-have-talk-about-vaccines.html

  36. #36 JustaTech
    January 8, 2010

    Lawyer question: What’s Rule 11 and how does one skirt it and why is being close to Rule 11 a bad thing? Kthxbai.

  37. #37 D. C. Sessions
    January 8, 2010

    IANAL, but Rule 11 of the Federal Rules of Civil Procedure:
    http://www.law.cornell.edu/rules/frcp/Rule11.htm

  38. #38 Peter Bowditch
    January 8, 2010

    #23 – “Douche” hardly describes Fisher’s lawyer. On his web site he says: “Emord has maintained an abiding conviction to achieve full First Amendment protection for the freedoms of speech and press”. If I said “He lies” I could probably use his own web site in my defence if he decided to sue me.

  39. #39 KWombles
    January 9, 2010

    This post is on Vaccine Casualty in it entirety. Did you know? http://www.vaccinecasualty.com/2010/01/major-victory-for-science-based.html

  40. #40 Marilyn Mann
    January 9, 2010

    Rule 11(b) of the Federal Rules of Civil Procedure, provides

    “By presenting to the court a pleading, written motion, or other paper . . . an attorney or unrepresented party certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:

    (1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;

    (2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;

    (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and

    (4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.”

    If the court determines that rule 11(b) has been violated, it can impose sanctions.