Thoughts in a Haystack

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As you have probably heard by now, PZ Myers and Seed magazine have been sued by Stuart Pivar in Federal District Court, Southern District of New York. The Complaint can be found in a pdf file here thanks to Jim Lippard. The essential facts alleged are:

First of all, Pivar is alleging libel per se, which is a defamation that is considered so outrageous and harmful to the injured party that specific damages need not be proven. If Pivar can establish such a libel, the fact that he suffered no monetary damages would not prevent an award. The jury can award damages in any amount that it sees as properly compensating the plaintiff. One basis of finding a libel per se is if the statement "tends to discredit the plaintiff in the conduct of [his] occupation, profession, trade or office."

The first question is whether calling someone a "crackpot" is libelous. It has been held under New York law that, at least where there is no connotation of incompetence in a person's profession, calling someone a "clown" amounts to nothing more than "name-calling or a general insult, a type of epithet not to be taken literally and not deemed injurious to reputation." As the court in that case said: "A certain amount of vulgar name-calling is tolerated, on the theory that it will necessarily be understood to amount to nothing more." I strongly suspect the same interpretation would follow for a term like "crackpot," at least in most situations.

Indeed, in the case cited by Pivar in his complaint, McFadden v. United States Fidelity and Guaranty Co., a Mississippi Court of Appeals decision (not the most persuasive authority in New York or the Second Circuit), where an insurance company employee told an insured that her doctor was a "quack" and a "crackpot," the court held:

In other words, the audience, the profession and the context were all in play, not just the word "crackpot." That raises the question of whether Pivar can fairly call developmental biology his "profession," rather than an avocation or, more likely, a subject totally unknown to him. If it is not his profession, then he must prove specific damages, which might be quite hard for him to do. There is also a question whether, in the rough and tumble of the scientific blogosphere, the use of "crackpot" is understood as going to the professional abilities of the person.

Another hurdle is whether Pivar is a "public figure." If he is, then he must prove "actual malice," again, a very hard standard to meet. Strangely, his boasting about having discussed his ideas with Stephen Jay Gould, who was supposedly, but for his untimely death, about to publish a "refutation of the fundamentalist Darwinian theory of evolution" that Pivar's work also attacks, may go some way to making Pivar just such a "public figure," even without his supposed connections to Andy Warhol and Prince Charles. If he claims to be a major player in a controversy as great as "fundamentalist Darwinian theory," (including whether any such animal exists) he cannot help but be a public figure.

And let's not forget that truth is a perfect defense to libel.

That's just a treetops overview of the possibilities and doesn't even address the issue of tortious interference with contract (I'll try to get to that tomorrow). Over all, I think that to call Pivar's case weak is to give it too much credit. However, winning the case might never have been the intent. Pivar is reportedly rich and, especially if his case, weak as it is, can survive an early summary judgment motion, he can quickly force the defendants to run up quite spectacular legal bills. Seed will have to decide what it wants to do, recognizing that abandoning PZ to this particular wolf might be the death knell of their magazine. But stupider corporate decisions have been made in the past.

Maybe we'd better start collecting for PZ's defense fund right away.
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