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Why critics should not sue Robert F Kennedy Jr for defamation


Last updated on February 21st, 2024 at 02:47 pm

This article about why critics don’t sue Robert F Kennedy Jr for defamation 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 vaccination’s social and legal policies. 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 diseases. She is also a member of the Vaccines Working Group on Ethics and Policy.

I was asked to explain, given several comments on it, why – if Robert F. Kennedy Jr’s claims about them are untrue – his victims, like Anthony Fauci, Paul Offit, or vaccine manufacturers do not sue him for his defamation. Essentially, there are three reasons for it.

One is that defamation law in the United States is set – for good reasons – against the plaintiffs, and such claims, especially by public figures, are hard to win – and a loss would be worse than not suing, appearing to validate the claims, even if it doesn’t.

The second reason is that, at least for public officials, there is a hesitancy to sue – and rightly, in my view.

The third is that bringing a lawsuit carries real drawbacks for regular people who are not grifters. They cost money, and they give attention to the claims of their attackers – a bit of the opposite of the reasons some people bring SLAPP lawsuits.  

brown and gold gavel on brown wooden table
Photo by EKATERINA BOLOVTSOVA on Pexels.com

What happened with Robert F Kennedy, Jr?

Robert F Kennedy Jr (RFK Jr) has been in the news both because of his presidential run and because of an appearance on Joe Rogan that led to targeted attacks – including direct stalking – against scientist Dr. Peter Hotez.

Several people better suited for me (like Dr. David Gorski, Brandy Zadrozny, and the Skeptical Raptor) wrote in-depth profiles about Mr. Kennedy’s conspiracy theories, anti-vaccine views, and how he misinforms, and why we do need to debunk his false claims and ignoring him may not be enough.   Anna Merlan wrote about Kennedy’s Joe Rogan appearance, and how they led to direct harassment of Dr. Hotez.  

Given the in-depth discussion by others, I was not going to address this. But a question came up about defamation lawsuits – no, not the question about whether anti-vaccine activist Steve Kirsch, who recently began threatening critics with defamation lawsuits, has a case.

I’m fairly sure none of his threats involve a valid case, though they may cause distress and impose costs on opponents – that’s what SLAPP lawsuits are for, after all. If you want a good source on what to do if threatened with a defamation lawsuit, I still have not found better than Popehat’s article on this. 

The question I was asked to address was why should critics not sue RFK Jr for defamation. This has come up over the years – in part from Robert F. Kennedy Jr himself, who said a few times that if he lied about his critics they could just sue him for defamation. As a lawyer, he probably knows that’s not that simple and is using this as another dishonest gambit, in a long line of dishonest gambits. 

But I heard this question both from anti-vaccine activists and from vaccine advocates who were wondering whether RFK Jr’s victims have a claim – often clearly hoping that they do. Two specific questions that came up included “If RFK Jr’s book about Anthony Fauci is full of lies, why does Fauci not sue?” (Yes, RFK Jr’s book is full of lies). Or, “If RFK Jr’s claims about Dr. Paul Offit are false, why does Dr. Offit not sue?”

Well, there are actually pretty good reasons. To start from the end — someone not suing you for defamation does not mean you were truthful about them. First, they may rightly conclude you are not worth their time; you are not credible enough to seriously harm their reputation, or they just have better things to do.

I have not even considered suing the anti-vaccine activists making up things about me, because it seems to me a really, really bad way to spend my time. Of course, I have not been targeted anywhere near the way Dr. Offit, Dr. Fauci, or Dr. Hotez were, but it seems like suing any of those people would be a poor use of time. 

Second, there are other important reasons.

Winning a defamation lawsuit in the United States is hard

Defamation requires a false statement of fact (or more than one) that harms another person’s reputation. That means that opinions, hyperbole, etc’ are not defamation – that, for example, was the basis for rejecting anti-vaccine activist Barbara Loe Fisher Arthur against Dr. Paul Offit. 

When it comes to public officials or public figures, you need not just to show that the statement was a false statement of fact, but that you have actual malice. On this, I do not think I can do better than Popehat’s explanation

Under more than a half-century of precedent, a public figure can’t prevail on a defamation claim unless they can establish that the defendant made a false statement of fact about them with actual malice. This is an excellent example of how words can have special and not-evident meanings in the legal context. In defamation law, “malice” does not mean “ill will” or “spite” or “hate.” It means knowledge that a claim was untrue, or reckless disregard about its truth or falsity.

“Reckless disregard” has a special meaning too — it means not just foolishness or extreme negligence, but making a factual statement while deliberately disregarding evidence that it is false. This is, by design, an extremely high burden of proof, and makes it extremely difficult for a public figure to prevail on a defamation claim.

In other words, to win a defamation lawsuit against RFK Jr, Dr. Fauci — or Dr. Offit, who is also a public figure for this purpose — would have to show that RFK Jr either intentionally lied about them or made a false statement while intentionally disregarding the evidence against it. Maybe they can show this for some statements, but it would be hard.

This standard was adopted, essentially, to allow people to criticize public figures without being constantly sued for it. It leans against the public figure. While that may frustrate people who are upset at those making up things about others, it’s part of the reason that legal threats by anti-vaccine activists against science supporters are unlikely to succeed in the courts (which does not mean that these threats are ineffective). Most states do not have anti-SLAPP laws, not all anti-SLAPP laws are equal, and SLAPP lawsuits have an impact on victims. But without these protections, more of these lawsuits could succeed). 

A person like Dr. Offit or Dr. Fauci may well conclude that even if most of the claims are false (some are likely opinions), showing that someone like RFK Jr knew they were false may be insurmountable. After all, RFK Jr may well believe many of the extreme claims he makes.

Not everyone is litigation-prone

Defamation lawsuits by federal civil servants are very, very rare. In part, it might be because the standard is so high; in part, because they accept that being criticized is part of their job definition.

More generally, not everyone is comfortable bringing lawsuits – or trusts the courts. With a high standard to meet, and distrust of the courts, even a plaintiff who can point to statements that are not true, and/or a plaintiff who feels wrong, may hesitate to sue. After all, with a very, very high standard, even if the statements are false, the defendant may win (for example, the case may be dismissed for inability to show actual malice). And the attacker may point to the win as showing that they were right all along. This might be worse for the plaintiff. 

Lawsuits have costs – financial and otherwise

Lawsuits cost money. Even a well-off plaintiff may not be easily able to afford a full-blown defamation lawsuit taken to its end. From the other side, that’s why litigation threats – even baseless ones – might work. From the plaintiffs’ side, the costs – and the time – involved may be a deterrent, too. 

Further, remember that we have good reasons to think that many anti-vaccine activists turn that way, at least in part, because they like the attention and crave it. A lawsuit gets more attention. It may get news coverage, increasing the visibility of the claims; it may reach audiences outside the usual anti-vaccine circles, and some people who would not believe a claim coming out of an anti-vaccine activist may accept a claim filed with a court, assuming people are more careful in court filings (which is not always true).

So going the litigation route may hurt the victim – by increasing both the visibility of the claim and their credibility among people outside the anti-vaccine groups, which are already inclined to uncritically believe their leaders’ claims. Why reward their attackers in that way? 

All these are good reasons for victims of anti-vaccine claims not to sue. 

Conclusion

There are very good reasons for people targeted by RFK Jr not to sue him. First, they may consider it a bad use of time better spent on other things. Second, they may have real concerns about meeting the very stringent standard public figures have to meet if they sue for defamation. Third, litigation may not be culturally acceptable to them. And fourth, they may be concerned about the costs of litigation – monetary and other.

Going from “they did not sue me for defamation” to “my attacks on them are right” is, at best, misguided, at worst, fundamentally dishonest. I suspect, in RFK Jr’s case, it’s the latter – as someone who had brought defamation lawsuits against critics, he probably knows the law, at least. 

Dorit Rubinstein Reiss

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