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A victory for science-based medicine

The following is a collaborative effort by Peter Lipson, MD, a usual contributor to Science-Based Medicine, 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 spurned the (slightly) more plausible venue of state court for the glory of federal court. It’s not gone well. Count this as still further prove 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:

Posted in: Science and Medicine

Leave a Comment (28) ↓

28 thoughts on “A victory for science-based medicine

  1. Citizen Deux says:

    Great summary of the case and actions behind a reprehensible abuse of the courts. If only our neighbors inthe UK were similarly inclined, Simon Singh would not be forced to defend his position against the BCA.

  2. David Gorski says:

    Nice analysis.

    I’m particularly intrigued by the “public figure” angle. My mistake in looking at this case the first time was my assumption that, because so few people even know who Barbara Loe Fisher is, she isn’t really that “public” a figure. However, her activism in trying to change laws regarding vaccine mandates, to influence parents not to vaccinate, and to promote the myth the vaccines cause autism all conspire to make her a very public figure indeed. In fact, before the rise of Jenny McCarthy as the most famous face of the anti-vaccine movement and Generation Rescue as “Jenny McCarthy and Jim Carrey’s Autism Organization,” Barbara Loe Fisher was arguably the most influential anti-vaccinationist in the U.S. Since Jenny and Jim have eclipsed her, and Generation Rescue has far surpassed the NVIC in fame and influence, I have to wonder if this lawsuit is a desperate attempt to reclaim some relevance.

  3. PublicHealthStudent says:

    Given that the chances of success in US courts are small, what do you think the chances are that she sill subsequently sue her in UK courts using their crazy libel laws?

  4. Sometimes you don’t realize how uniquely American the sanctity of free speech is.

    I knew Britain had fairly draconian libel laws, but I never realized that many Brits (and other Europeans) don’t see free speech in general the way the US does until I was involved in a comment thread with some UK’ers on Gorski’s “friend’s” blog regarding holocaust denial and free speech.

    ….Wow, I haven’t checked out that post for a while. It was posted on Nov 12, and people are STILL posting comments on it; it’s over 330 comments now!

  5. professional_lurker says:

    I think you’ll find that the generalization “she lies”, is probably the crux of their position. I’d be more apt to agree that the statement were simply the “harsh hand of science”, if there were some specificity over what she is/was lying about. There’s not.

    If, for example, he had cited a particular instance where Fisher had allegedly lied about some facet (s) of her website or the articles / books and specifically addressed what she were lying about, I would agree with you and I don’t think you would have seen her file suit. But because the statement is being used to describe her and not her wrong positions specifically, I think you’re off the mark.

  6. SkepticalLawyer says:

    Nice post. And congratulations to Ames for passing the New York bar exam!

    Please allow me to add a couple of clarifications. (I went to law school in Virginia and worked on a libel article with a professor for a summer, but don’t remember Virginia state (sorry, I mean Commonwealth) law. And I’m going by memory here, so someone can feel free to correct me if I’m wrong.

    When the plaintiff is a public figure (or public official), under federal constitutional law, namely the First Amendment, she must prove that the defendant made the defamatory statement with “actual malice.” State law can make it tougher on plaintiffs with a higher standard, but can’t make it any easier.

    “Actual malice” doesn’t mean what it sounds like, or what it would mean in plain English. It means with knowledge of the statement’s falsity or with reckless disregard of its truth or falsity. “Reckless disregard of its truth or falsity” means that the speaker/writer must actually have some information that leads him/her to believe that the statement might be false. This is a higher standard than negligence, which would require only that a reasonable person in the speaker’s shoes would have known that the statement might be false. In other words, there has to be some subjective knowledge or belief on Offit’s part that the statement either was or might be false.

    Also an important point here is that Fisher has to show that the statement was false and that Offit made it with “actual malice.” Offit doesn’t have to prove, or even produce evidence, that shows that the statement is true or that he thought it was true.

    So, to succeed, Fisher must show both (1) that she does not lie; and (2) that Offit knew that she does not lie or that he had some information that led him to believe that she does not lie, but he made the statement anyway. In some states, she would also have to show some actual damages, but apparently not in Virginia.

    And, if I’m not mistaken, she must prove these by “clear and convincing” evidence, which generally means that the factfinder (jury or judge) must be convinced that the two requirements have been proved to be highly probable. It’s a tougher standard than the general “preponderance of the evidence,” or more likely than not, standard for most civil claims.

  7. windriven says:

    This is fine news indeed. I had (mis)understood that Dr. Offit had settled out of court.

  8. LindaRosaRN says:

    Dear SkepticLawyer,

    The complaint as filed makes two telling points.

    She alleges actual malice, sidestepping the issue of whether she is a public figure or not. (Without being a public figure, she couldn’t get significant damages.) Proving actual malice raises the bar.

    But she also alleged libel per se. That would appear to lower the bar.

    So where is the bar set in a case like this?

    Thanks, Linda

  9. wales says:

    Her attorney is experienced and lists among his specialties constitutional law and libel law. It is unlikely that the choice of venue was solely that of the plaintiff. Should be interesting. But it is necessary to perform some mental contortions to arrive at the conclusion that this is a victory for anyone, much less science based medicine. I agree with lurker, it doesn’t appear to be about science at all.

  10. Chris says:

    Her lawyer also appeared on a show with Kevin Trudeau. Not exactly a person with any integrity.

  11. stargazer9915 says:

    Lets hope “the plaintiff” goes the way of the dodo or good ol’ Hulda. Sounds mean and spiteful but one can only hope. (My sole opinion)

  12. David Gorski says:

    No, let’s not hope the plaintiff goes the way of Hulda Clark. Instead, let’s hope her lawsuit is dismissed rapidly.

  13. Peter Lipson says:

    While the filing of the suit makes life temporarily difficult for one of my medical heroes, it highlights the desperation and moral/scientific bankruptcy of people like Loe Fisher, which is why I consider it a major victory. Once they resort to the courts to support their health beliefs, they have taken a major step toward irrelevance.

  14. Dawn says:

    As I recall the Wired article, when you take the “she lies” phrase in context, Dr Offit is referring to the information BLF’s NVIC gives out. So, as I read it, his reference of “she lies” refers to the untruths in the information NVIC gives out, not that BLF personally is a liar. IANAL so I don’t know if context makes a difference in this case or not.

    P.S. Congrats on passing the NYS bar exam, Ames. My cousin took it many years ago and said it was the hardest test he’d ever taken (yes he passed, but I don’t recall if it was on the first attempt or not)

  15. SkepticalLawyer says:

    LindaRosenRN,

    The “libel per se” means only that she doesn’t have to prove specific damages. In other words, it is presumed that she suffered harm to her reputation.

    It does not affect the need for her to prove that the statement was false and was made with “actual malice.”

  16. David Gorski says:

    The “libel per se” means only that she doesn’t have to prove specific damages. In other words, it is presumed that she suffered harm to her reputation.

    That is what I, as a nonlawyer, understood. Examples I’ve seen cited are falsely accusing someone of a crime; falsely accusing someone of something that, if it were actually true, would mean she is incapable of doing her job or incompetent (which seems to be what BLF is arguing by claiming that impugning her truthfulness impairs her ability to do her job running the NVIC); or the older example of falsely accusing a woman of unchaste behavior.

  17. provaxmom says:

    This component of the actual complaint:

    “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”

    It makes me smile. :) It’s like BLF has done the work for us….she’s named it herself so that us reasonable folk don’t have to resort to name-calling.

    I think that she and her posse are going to find themselves in the ‘be careful what you wish for’ camp. They are the ones forcing the issue and in doing so are going to find themselves called on the carpet. I see it as a lose-lose situation. All of their scientific evidence (or lack thereof) is going to be called up. If she is claiming damages, then all of her group’s finances are going to be under scrutiny–and some parents may find themselves wondering exactly where all of their donations went. If they don’t want this stuff made public, then they’ll have to drop the case, which won’t look good either.

    Anyone have any word or heard anything as to how CN or Dr. Offit have responded to this? I really, really would hope that Nast would not choose to settle.

  18. EricG says:

    @ provaxmom

    “I think that she and her posse are going to find themselves in the ‘be careful what you wish for’ camp. They are the ones forcing the issue and in doing so are going to find themselves called on the carpet. I see it as a lose-lose situation. All of their scientific evidence (or lack thereof) is going to be called up. If she is claiming damages, then all of her group’s finances are going to be under scrutiny–and some parents may find themselves wondering exactly where all of their donations went. If they don’t want this stuff made public, then they’ll have to drop the case, which won’t look good either.”

    wording like that makes it almost sound too good to be true. can anyone with some law insight attest to how likely this is to occur? or, under what circumstances this might occur?

  19. EricG says:

    @ provaxmom

    “I think that she and her posse are going to find themselves…If they don’t want this stuff made public, then they’ll have to drop the case, which won’t look good either.”

    that paragraph’s wording almost makes it sound too good to be true. can anyone with some law insight attest to how likely this is to occur? or, under what circumstances this might occur?

  20. EricG says:

    yea…go ahead and moderate that first (longer version) out…as well as this…

  21. SkepticalLawyer says:

    @EricG

    It depends (how’s that for a lawyer-like answer?). It’s very hard to predict what will happen in any particular litigation, which is why most litigation settles without ever going to trial.

    There have been many articles written about the dangers for plaintiffs of bringing a libel suit, because it makes even more public something that you are upset became public in the first place.

    If this case goes far enough, then it is certainly possible that Fisher’s organization’s internal communications will be subject to disclosure in the discovery process. The organization’s finances may or may not be subject to discovery, depending on the specific claims that the parties make as the case progresses.

    This is certainly a good opportunity for Offit and Wired to get some insight into the workings of Fisher’s organization. I am personally waiting anxiously to see what they come up with!

  22. johnathanelopez says:

    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? 3d tutorials

  23. Versus says:

    Check out the website of Ms. Loe Fisher’s attorney:

    http://www.emord.com/default.htm

  24. provaxmom says:

    You know what my wish is? I wish that a countersuit is filed, except Dr. Offit and co. don’t ask for money. When they win, BLF has to change the name to “National Vaccine MISinformation Center.”

  25. khan says:

    Versus, that’s an interesting law practice.

  26. provaxmom says:

    Yes, they certainly do keep the FDA lawyers busy, don’t they?

  27. SD says:

    @lips:

    “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?”

    O RLY? SRSLY?

    I object to the notion of regulation, and this is the sort of stuff that comes out of SBM? “Why can’t we just use science, instead of using the law?”

    Uh, wow. *Wow*.

    “mind… blown…”
    -SD

  28. BillyJoe says:

    …when there are only oranges, he always wants a pear.

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