This article, about anti-vaccine activist Catie Clobes legal actions against Karen Ernst, was written by Dorit Rubinstein Reiss, Professor of Law at the University of California Hastings College of the Law (San Francisco, CA), who 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 a 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
It is not unusual to observe anti-vaccine activist harassment of those who challenge their claims, by threatening legal action. Most often, the legal threats are baseless but can seem threatening. Because such episodes are not uncommon, I have decided to describe the latest, explain why the threat it made is unfounded, and offer some guidance on what to do if you face such a threat.
Anti-vaccine activist harassment of Karen Ernst
On July 23, 2020, my friend Karen Ernst, leader of Voices for Vaccines, received a litigation threat from a lawyer representing anti-vaccine activist Catie Clobes. The letter claimed Ms. Ernst “engaged in behavior that is unwanted and intrusive to Ms. Clobes” that “had adverse effects on Ms. Clobes,” that she “publicly shared information that has portrayed Ms. Clobes in a false and misleading light,” and “encouraged others… to harass and share accusations maligning Ms. Clobes character.”
It also accused Ms. Ernst of interfering “with a valid contract Ms. Clobes had entered into with a billboard advertising company.” The letter claimed this had “adverse effects” on Ms. Clobes, and threatened that Ms. Clobes could “pursue a restraining order and any other legal relief available to her.”
Getting such a letter can, of course, induce fear. That is the case even if – as here – the actual legal claims in it are baseless and the letter does not carry legal authority – in other words, Ms. Ernst is not violating any law by ignoring the letter. If she were violating a law previously, she still is – but she was not. The letter changes nothing legally. It’s an attempt to intimidate – and an unfounded one. But being threatened with litigation can cause alarm and distress. This post will provide some background, explain why the legal claims are baseless, and then provide suggestions about what to do if you get a letter threatening litigation.
Catie Clobes background
On March 1, 2019 baby Evee Gayle Clobes died in her sleep. Her mother blamed vaccines. However, the police report and thorough examination suggested that young Evee died after ending up face-down in her mother’s adult bed – suffocation due to unsafe sleep conditions.
Ms. Catie Clobes – Evee’s mother – took umbrage with these articles. Understandably, she read corrections of her story (the story blaming Evee’s death on vaccines) as accusations that she had a role in Evee’s death, and reacted with pain and anger. In fairness, Ms. Clobes was also subjected to direct attacks, with some commenters addressing her personal life and openly accusing her of recklessness in her child’s death.
None of the bloggers above targeted Ms. Clobes that way – the focus of each story was on the evidence about the child’s death, none suggested the death was anything but a tragic accident due to unsafe sleep conditions (a mistake many well-meaning parents make), and none aimed any abuse at Ms. Clobes or directly looked into her personal life beyond the events surrounding Evee’s death. But to understand the picture, it’s important to realize that Ms. Clobes was also subjected to more aggressive attacks.
Karen Ernst did not write any of the posts nor did she make any attacks. What Ms. Clobes accused her of is sending the medical examiner’s letter cited in the NBC to the NBC journalists. But Catie Clobes herself shared that letter publicly on the anti-vaccine show Highwire with Del Bigtree, so the letter was clearly public irrespective of anything Ms. Ernst did.
Ms. Clobes also accused Ms. Ernst of interfering with a billboard company contract. Ms. Clobes intended to put up a billboard claiming vaccines cause SIDS; but extensive evidence shows that that’s not true. Multiple studies show that vaccines do not cause SIDS.
Billboard companies in most states are subject to truth in advertising laws. In Minnesota, too, the law prohibits false statements in an advertisement, which would include billboards. Hence, posting an untruth on a billboard is against the law, and they could face sanctions.
Catie Clobes claims that Ms. Ernst contacted the billboard company and threatened them. Whether or not this happened, the company, realizing the billboard would be false, told Ms. Clobes that she would need to revise the billboard. She revised the billboard from “Vaccines cause SIDS” to “36 hours after vaccines, I was gone.”
For background, previously, a billboard company in California canceled a contract with Catie Clobes and the parents of Nicholas Catone that would have stated that vaccines killed their children. Since the evidence is that vaccines killed neither child, such a billboard would have been misleading, and the billboard canceled the contract after learning that they were being used to spread untruths.
Ms. Clobes accused Sen. Richard Pan of interceding in that incident, and this experience left a mark. The Minnesota billboard setback was all the more painful because of that previous experience.
In reality, anti-vaccine billboards put children at risk. It is responsible and appropriate to oppose them. When they are blatantly untruthful, a company that posts them is also acting illegally.
The claim that Ms. Ernst encouraged anyone to harass or accuse Ms. Clobes is simply false. Correcting misinformation – pointing out that vaccines do not cause SIDS, and that the evidence is that Evee’s death was not vaccines related – is not targeting a person.
The legal claims
The letter made three legal claims against Ms. Ernst. None of them have a basis. The claims are that Ms. Ernst:
- “[P]ublicly shared information that has portrayed Ms. Clobes in a false and misleading light” – that Ms. Ernst engaged in defamation against Ms. Clobes.
- “[E]ncouraged others… to harass and share accusations maligning Ms. Clobes character.”
- Interfered with a valid contract.
None of these claims hold water.
Defamation requires showing that a person publicized a false statement of fact – not an opinion – that harms someone’s reputation. In the case of someone involved in a public controversy – and vaccine safety is a public controversy – the person becomes a limited public figure and has to show not just that the statement they are complaining about is false but that it was said with “actual malice” – that the person saying it knew it was false or deliberately ignored clear signs that the statement was false.
In this case, sharing the medical examiner letter – or for that matter, the NBC article – does not even start to qualify. First, there is no good evidence anything in the letter was false. And even if some small detail was inaccurate, as long as the letter was “substantially true,” there is still no claim – the statement has to be false.
And even if the letter was completely false, and there’s no basis to think that, Ms. Clobes would be unable to show actual malice, because NBC journalists neither knew nor ignored clear signs that the letter was false. In fact, we had every reason to believe the letter was true as it fits the police report shared in the NBC article.
Finally, since Catie Clobes herself shared the letter on Mr. Bigtree’s show, she is ill-placed to claim that anyone, least of all Ms. Ernst, published anything that hurt her reputation. She already put it out herself. If any harm was done to her reputation, it was self-inflicted.
Ms. Ernst never encouraged others to harass or malign Ms. Clobes, either. The fact that the letter gives no examples of that is very suggestive.
Finally, this is not a case where there are good grounds to claim the tort of intentional interference with a contract. I teach that tort. While each state has its own quirks for torts, Ms. Ernst does not even meet the minimum requirements. Here are the minimal elements of the tort.
There are at least three issues that I see with trying to claim interference with contractual relation here, and there may be more:
- Interference has to be improper. But there’s nothing improper in alerting a company to the fact that it’s putting up a misleading billboard and potentially violating the law. This is not the kind of interference the tort is aimed at, and the tort will fail on that alone. Most recently, the restatement third narrowed interference to “wrongful conduct,” which is limited to conduct that aimed to get the benefits of the contract, conduct that’s an independent legal wrong, and conduct only aimed at injuring the plaintiff. Had Ms. Ernst called a company asking not to put up anti-vaccine misinformation, it would not fit under this standard. It would not qualify under the old standard, either.
- Anyone contacting the company would fit under at least one defense to the claim – it is a defense if the agreement was illegal or against public policy. Posting anti-vaccine misinformation – which can mislead parents into not vaccinating their children, and putting those children and others at risk – is against public policy. False advertising is illegal in most states. The FTC also acts legally against misleading advertising, especially those that can harm consumers’ health.
- Finally, under Supreme Court jurisprudence, the First Amendment prevents using this tort to regulate peaceful political activity (see NAACP v. Claiborne Hardware Co. (1982)). Actions to remove the billboards by contacting the company would not be economic in nature but acting in the public interest. In that, the First Amendment protects any such person.
Ms. Clobes does not have a valid legal claim against Ms. Ernst. A letter threatening her with legal action that has no basis is an empty threat. Ms. Clobes also has no basis for a restraining order against Ms. Ernst because Ms. Ernst discussed whether vaccines caused SIDS generally – or whether vaccines caused Ms. Clobes’ daughter’s death – online.
The reality is that Ms. Clobes is a public activist for the anti-vaccine cause. She is trying to scare people from vaccinating their children using information that – however much she believes it – is false. Vaccines do not cause SIDS. Vaccines are very safe.
When you publicly advocate for the anti-vaccine cause, responsible people can and will push back against your claims, because anti-vaccine claims put children at risk. When a child’s death is used to scare people from vaccines, it’s unreasonable to expect the story of that death to remain unexamined. And when the evidence is against a link to vaccines, the responsible thing is to say so.
Speaking out does not target the parent. We can all sympathize with the pain of losing a child, but anti-vaccine misinformation can put other children at risk and lead to many more families suffering the loss of a child. Families deserve to know when claims against vaccines are not true. It is not illegal or wrong to take action against such misinformation. In fact, it is appropriate and important.
What to do if you are threatened with litigation?
The fact that a legal threat is baseless does not make it less distressing or frightening. Many vaccine advocates are not wealthy, and the thought of being taken to court – even on a false claim – can be very threatening. That is, in part, what the person issuing the threat is counting on: it is an intimidation attempt.
In some cases, as with Andrew Wakefield, the anti-vaccine activist is wealthy and will engage in baseless litigation simply to harass and intimidate.
Catie Clobes is probably not in that category. This is a young woman who apparently has little professional credentials or wealth. In her case, the threat is probably more a defensive mechanism of someone unable to deal with the pushback her efforts to scare parents from vaccinating their children generated. Her reaction is to lash out. The threat can still be a problem for those targeted, and I know other vaccine advocates were targeted with such threats and had to deal.
So what do you do?
The wonderful Popehat has a colorful discussion of what to do if you are threatened with litigation for something you wrote. I cannot match his scintillating way with words, and won’t try.
I will say the following:
- If you are threatened by anti-vaccine activist harassment, first of all, do take a breath. Give yourself a moment.
- Remember that most such threats are not legally sound. Most of the time – though not always – you have done nothing actionable. You need to check the specifics, but many, many such threats are without basis.
Reach out to your pro-vaccine groups and ask for help. We can support you emotionally, and chances are we can help you find a pro-bono lawyer. It’s not guaranteed, but there are several places we can look for you. Popehat is a wonderful resource for looking; and we have other options.
Remember that you are not alone. It’s hard to be targeted. But it’s also a sign that you are effective, or at least considered effective by the anti-vaccine movement.
If you would like to show support for Ms. Ernst’s advocacy, please join Voices for Vaccines or make a donation today.