Anti-vaccine harassment – can you sue for libel?

For the past three years or more, ever since I (pretty accidentally) got drawn into the vaccine discussion, several of you asked an opinion over the legal aspects of dealing with anti-vaccine harassment. One recurring question is “can I sue for libel over this.”

I want to take advantage of a number of recent and particularly ugly attacks to provide a primer on when you can, in fact, sue for libel over something said online.

I also want to make clear that – as many of you heard from me – I think that almost always suing for libel is the wrong strategy. First, I think tort suits are a bad way to deal with discussion, even ugly discussion. And at least in part, if you step up, you should know the discussion can include ugliness. And sometimes from both sides.

Second, even if you are a private figure, tort suits are hard, expensive, and public. And if the other side is willing to put aside ethical standards – and if you get to the point where you think about suing for libel, you’re usually dealing with someone with, at best, flexible ethics – that’s going to be part of the lawsuit process as well, and you can expect things to get worse before you win. And after you win.

Third, in many cases our law is rigged against those speaking on public matters, intentionally, because we value free speech. That can protect you if you’re sued by an opponent, but it will work against you if you are the one suing.

Further, suing an anti-science attacker can really work for them. You give them publicity they would not otherwise have. If they win, they can really push the slur against you. After all, it’s not libel, you lost, they can claim it’s true even if they won because the law is rigged against the plaintiff. If they lose, it’s because of the conspiracy, and because the system is rigged against them – and they still had the publicity and cost you time you will never get back, grief, and probably resources. It really is a bad deal for you, no matter what.

And finally, it leaves a bit of a bad taste that the tactic has been repeatedly used by anti-vaccine activists.

But I also see the other side. I hear you when you tell me that you should not have to put up with harassment  when it crosses a line. I understand that you have not given up your private rights by becoming involved in this discussion. The law values and protects reputation, and harm to your reputation can cause a variety of other harms to your livelihood and your family – and your emotional well-being.

Being a vaccine advocate does not mean you cannot use your legal rights, especially when you are under direct attack to your good name. And if you’re already being sued from your side, a counter-suit, if you have a claim, might make sense.

At any rate, it’s probably worth going over the basics of the law.

Anti-vaccine harassment – David Gorski

 

The immediate trigger for this post was a set of nasty, baseless, unwarranted attacks by alternative medicine promoter Mike Adams on physician and science blogger David Gorski, who is the managing editor of the website Science-Based Medicine. Gorski is also on the faculty of the Barbara Ann Karmanos Cancer Institute, one of 69 National Cancer Institute-designated comprehensive cancer treatment and research centers in the United States. Karmanos is located in Detroit, Michigan, and is affiliated with Wayne State University School of Medicine.

Dr. Gorski has discussed some of Adams’ attacks on his blog.

So this article sets out what United States defamation law says, and tries to walk you through when you can or cannot sue for defamation because of an attack that, in your view, went too far. When and whether to do so is, of course, up to you. Again, my leaning would be no, if you can avoid it.

Note: this is not a substitute to speaking to a lawyer. I hope you don’t need to hear this, but if you’re going to sue someone, talk to an attorney first. What I hope to do in this post is give you some guidance on when it makes sense to talk to a lawyer.

Defamation: A Primer

 

Several other excellent discussions of defamation can be found on Popehat or through the Digital Media Law Project .

There are several issues to consider before commencing any type of legal action:

  1. Which state is your attacker in, and which state are you in?

Remember that state law may well limit your ability to sue for statements related to matters of public concern via anti-SLAPP laws, designed to prevent suits aimed at chilling speech. Without going too far into the details, anti-SLAPP laws generally provide for quick summary judgment if the plaintiff cannot prove she is likely to prevail and impose on the plaintiff the risk of attorney fees in some circumstances. State law also affects the substance of defamation law, though federal constitutional law matters, and there are commonalities among states. Everything said here may be different depending on your state’s law.

2. Who Are You?

Are you a limited purpose public figure or a private figure? Chances are that nobody in the vaccine controversy is an all-purpose public figure, whose entire life is open to scrutiny and criticism. Even Dr. Paul Offit is probably a limited-purpose public figure: he thrust himself “to the forefront of particular controversies in order to influence the resolution of the issues involved.” Gertz v. Robert Welch Inc., 418 U.S. 323 (U.S. 1974) [the “thrust himself” language is the language the court uses, not my description] and distinguished himself in a particular field, and is thus a public figure who “voluntarily exposed [himself] to increased risk of injury from defamatory falsehood concerning [him]” (id), but he is not a public figure in relation, to his private life the way the First Lady, for example, is.

Similarly, individuals who blog or speak up publicly routinely on vaccine issues are probably limited purpose public figures. Online commentators in public are in a grey area, and pediatricians speaking to patients, or people speaking only to closed, local mom groups may be private figures for this purpose.

In this case, the attack focused both on Dr. Gorski’s blogging and his work as a physician. Dr. Gorski’s blogging is clearly a case of him putting himself “in the forefront of particular controversies” – covering his criticism of alternative medicine and his criticism of anti-vaccine misinformation. He is a limited purpose public figure for that purpose. I’m less sure about his work as a physician.

On one hand, he draws on his clinical knowledge in his discussion of, for example, alternative treatments of cancer and their chances. On the other hand, the attack involved what purports to be (though, as Dr. Gorski points out, almost certainly isn’t) reviews from patients of his one-on-one work, and that does not feature in his blogging: there is an argument that for those purposes he is a private figure.

If you’re a public figure for the purpose of the attacking speech, you will face two limits on your ability to sue:

  1. The burden of proof for showing the statement is false is on you. For private figure, your opponent will need to show the statement is true.
  2. You will need to show malice – a term of art that means you need to show your attacker either knew the statement was false or was reckless towards that possibility at the time of making the statement. This is a very high bar. It’s not impossible, but it’s highly unlikely you’ll be able to show this.

If Dr. Gorski’s work as a physician is done as a private figure, Mike Adams, attacking his reputation as a physician, is not going to be able to take advantage of these barriers.

3. What was said?

A defamatory statement is a false factual statement that “exposes a person to hatred, ridicule or contempt, lowers him in the esteem of his peers, causes him to be shunned, or injures him in his business or trade.”

It’s not enough that the statement was rude. Nor does an assertion that cannot be proven false (for example, an opinion) constitute defamation, regardless of how harsh it is (Mikovitz v. Lorain Journal, 497 U.S. 1 (1990). “You are a nasty, evil person” is not defamation.

A statement that’s clearly hyperbolic is unlikely to be defamatory as well, because it’s unlikely to be taken as fact. So “you’re a genocidal maniac” would not, in most circumstances, be grounds for defamation, unless there’s something about the situation that could make it seem credible.

Accusing someone of a crime, for example, is defamation per se. So when Mike Adams compared Dr. Gorski to a convicted criminal, Dr. Fata, in an interview with Robert Scott Bell, and then went on to say:

But even in terms of his conduct, the pattern of derangement and pathology is consistent with someone who is a serial criminal. And that’s important to recognize. Because when there’s smoke there is fire. And when you have a place where massive crime is being committed, massive fraud is being committed, today they just announced felony charges against Flint water quality employees, government employees, Flint and Detroit they are cesspools of criminality and coverup and I think it’s no coincidence that Dr. Gorski is in the midst of all of this.

And in a separate article claimed that: “Dr. David Gorski accused of deliberately promoting cancer-causing medical interventions because he financially benefits from cancer patients”

Adams committed defamation per se.

When Adams is claiming that Dr. Gorski’s patients think badly of him, he is not committing defamation per se, but he is clearly making a statement of fact that can harm Dr. Gorski’s reputation and injure him in his business and trade.

And he may be making that statement – unlike the others  – towards a private figure, unable to hide behind the protections our system gives to those attacking public figures.  That means that to protect against a defamation claim Adams would have to show that the statement is true. It may be  hard for  him to show that Dr. Gorski’s patients think badly of him based only on unattributed online reviews.

4. To Whom?

The statement has to be said to at least one other person. And be aware: repeating a defamatory statement is defamation (with some exceptions that are not often relevant here). So when Adams pretends to cite patient reviews, he cannot claim it’s not defamatory because someone else said it first.

And yes, this applies to you, as well: the fact that Brian Deer said that Andrew Wakefield is a fraud first, does not by itself mean calling Wakefield a fraud is not defamatory. Of course, Andrew Wakefield is, for these purposes, almost certainly a public figure, so the protections above apply: he would have to prove the claims are not true and he would have to show malice.

Relying on Deer’s carefully documented findings would probably make showing malice impossible: those claims provide grounds of believing the claims are true. Furthermore, the careful documentation behind the claims of data manipulation by Wakefield – and the testimony of concealing research results by his former Research Assistant, Nicholas Chadwick – would probably provide a strong truth defense even if Wakefield was not a public figure: given the evidence, calling Andrew Wakefield a fraud is not libel, since a truthful statement is not libelous. But since he’s a public figure, the case is unlikely to get to that point.

Anti-vaccine harassment –the take home?

 

Many of you get attacked regularly through anti-vaccine harassment. Suing is not a good option for you under most circumstances, but might be available sometimes. I would strongly warn you against making threats of litigations unless you mean it. It can annoy your attacker without any benefit. Plus, empty threats of litigation are simply bad form.

The examples from Mike Adams’ vicious attacks on Dr. Gorski show you what kind of statements can be defamatory. Adams hit all the checkboxes on the “let’s defame someone criticizing me, because they’re effective and I can’t win on the merits or intimidate them in other ways” form.

Even so, the case would be tricky, because the protections our system offers to those attacking public figures are so strong: to put it bluntly, our system assumes that when you put yourself in public, you accept some level of attack. It leans towards allowing more, rather than less, criticism of those involved in the public debate. Even when the attacker is clearly out to intimidate, harass, and bully, because they know that on the merits, they lose – as in Adams’ case.

Thus, if Dr. Gorski wanted, it’s possible for him to sue – but hard. Which is probably what Adams is banking on (and of course, any suit will give him free publicity and potentially legitimacy that, in spite of his reach, he doesn’t currently have outside of the world of conspiracy theory believers).

It’s a bit of a catch 22. Be effective, be attacked by those who have nothing else. Sue them, set yourself for, at best, hardship, and contribute to their legitimacy. In the circle of those familiar with the situation, Dr. Gorski probably knows – or should know – that being attacked by the likes of Adams is a badge of honor. It increases, not decreases, his credibility.

And really, the better response to the bullying behavior of Adams is to expose it for what it is and mock it from here to Antarctica and back, something few are as good at as Dr. Gorski himself, who already started.  And also see a recent mocking article published right here.

The challenge for us is to educate those outside the circle of those directly engaged in the fight against pseudoscience and pseudo-medicine about the (lack) of worth of Adams as a source and the complete lack of credibility of his attacks. Of course, the hysterical tone should help, but it’s important for us not to assume but to speak up and educate.

Dorit Rubinstein Reiss
This article is by Dorit Rubinstein Reiss, Professor of Law at the University of California Hastings College of the Law (San Francisco, CA), is a frequent contributor to this and many other blogs, providing in-depth, and intellectually stimulating, articles about vaccines, medical issues, social policy and the law. 

Professor Reiss writes extensively in law journals about the social and legal policies of vaccination. Additionally, Reiss is also member of the Parent Advisory Board of Voices for Vaccines, a parent-led organization that supports and advocates for on-time vaccination and the reduction of vaccine-preventable disease.