defamation

Why critics should not sue Robert F Kennedy Jr for defamation

Professor Dorit Rubinstein Reiss reviews why the critics of Robert F Kennedy Jr have not sued him for defamation despite his false claims.

Catie Clobes v NBC – problematic anti-vaccine lawsuit against a journalist, Part 2

This article, part 2 of the Catie Clobes v NBC anti-vaccine lawsuit, 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. She is also a member of the Vaccines Working Group on Ethics and Policy.

In part 1, I explained the elements of defamation and why Ms. Clobes will likely be a limited-purpose public figure for her lawsuit against NBC. This lawsuit would require her to prove actual malice, which she has neither alleged nor is likely to be able to show.

In this post, I will explain why Ms. Clobes is also unlikely to be able to prove the claims against NBC in the article are false. As a reminder, “Only false statements of fact can be defamatory. Arguments, characterizations, insults, and aspersions can’t be unless they are premised on explicit or implied false statements of fact.” The claims that large parts of the article being opinion and not fact is essentially negating their case. Any parts of the article that are opinions are not defamation.

Public health and vaccines commentaries – employment repercussions

When employees speak up on matters of public health and vaccines in their free time, those who do not like the speech may retaliate by complaining to their employers, who may be tempted – or feel forced – to act against the employee. But employers should not, and some types of employers – public employers – are likely barred from doing so.

This post considers mostly employees in public institutions – department of health, teaching hospitals, or universities – because these employees have legal protection against sanctions – an employer is likely legally prohibited from acting against them because of speech on matters of public health and vaccines in their free time.

However, the points made about defamation and the policy considerations also apply to private employers, those who can fire employees at will, at least when the employees provide mostly accurate, fact-based information.

These issues can come up in a variety of contexts, some of which the employer may appreciate more than others. One situation is when an employee working for a public institution spends part of his personal time commenting on public health and vaccines issues and informing the public through a personal blog, on which his position is mentioned, or by commenting on social media, Facebook or Twitter.

The employee provides information, corrects misconceptions, and criticizes those offering bad advice or factually inaccurate information, sometimes with strong language. A person so criticized contacts the public institution and threatens to sue for defamation if the blogging does not stop and the statements are not retracted, or if the employee is not otherwise dealt with.

Or, for example, an employee makes a joke about a public health issue – in good or bad taste – in her personal time. People offended complain to the employer, either just criticizing the employee or threatening legal action. In both cases, employers should not take measures against the employee.

First, in most circumstances, there would almost certainly be no defamation case here. Second, limits created by the First Amendment on the ability of public employers (though not private ones) to fire an employee for their speech likely apply here. Finally, there are public benefits from allowing the employee to speak in this manner.Read More »Public health and vaccines commentaries – employment repercussions

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.