Thoughts in a Haystack

Dr. Steven Novella and Orac have noted that the doyen of the anti-vaccination movement, Barbara Loe Fisher (aka Barbara Loe Arthur), has brought a libel suit against Dr. Paul Offit, reporter Amy Wallace, and Wired Magazine, over the article "An Epidemic of Fear: How Panicked Parents Skipping Shots Endangers Us All." Unfortunately for Fisher (and fortunately for those publicly supporting science against pseudoscience) the laws of libel in the US are not as easy to use as a weapon to silence criticism as those in Britain, which made the British Chiropractic Association's suit against Simon Singh so dangerous.

First of all, in order to support a claim of libel, specific words must be alleged that make a factual claim about a person. Fisher's complaint goes on at length about how the article depicts "anyone not in support of universal and mandatory vaccination is irrational, uneducated, unscientific, controlled by fear and a danger to public health" and, conversely, "lionizes Offit as an altruistic scientist dedicated to child welfare unfairly persecuted by the 'anti-vaccine' movement." Fisher is called the "brains" of the anti-vaccination movement, which she denies she is, since she is not "anti-vaccine" but for safety and informed consent, a tactic already deconstructed by Orac at Respectful Insolence. I think it is safe to say that the "charge" that she has any brains is not the focus of the suit.

In any event, such general and unspecific statements are not actionable and are, as we shall see later, clearly opinion, at worst. Statements of opinion are protected by the freedom of speech clause of the Constitution's Bill of Rights and cannot be the subject of libel suits in any court in the US.

Fisher offers only one statement specifically about her that remotely supports a claim of libel. Offit is quoted as saying of Fisher, "She lies." In context it is:

"Kaflooey theories" make him crazy, especially if they catch on. Fisher, who has long been the media's go-to interview for what some in the autism arena call "parents rights," makes him particularly nuts, as in "You just want to scream." The reason? "She lies," he says flatly.

"Barbara Loe Fisher inflames people against me. And wrongly. I'm in this for the same reason she is. I care about kids. Does she think Merck is paying me to speak about vaccines? Is that the logic?" he asks, exasperated. (Merck is doing no such thing).

To give you an idea of the hurtles that American libel plaintiffs face, let me quote from a 2000 Federal District Court case, Sabratek Corp. v. Keyser:

[A] threshold issue for the court to resolve is whether the alleged statements are reasonably susceptible of the defamatory meaning imputed to them. This threshold inquiry is guided not only by the meaning of the words as they would be commonly understood, but by the words considered in the context of their publication. While assertions of fact may form the basis of a defamation claim, expressions of opinion are not actionable. To determine whether a statement is fact or opinion, the dispositive inquiry is "whether a reasonable reader could have concluded that the publications were conveying facts about the plaintiff." When the defendant's statements, read in context, are readily understood as conjecture, hypothesis, or speculation, this signals the reader that what is said is opinion, not fact.

According to the complaint, [defendant] stated to certain individuals that [plaintiff] is a "pathological liar," "the biggest pathological liar in the world," a "dirty liar," and further said that "that guy is a fraud" and "I have a list of one hundred people you can call that will say that this guy is a dirty liar." Such statements do not constitute defamatory statements of fact, rather, they are appropriately labeled hyperbole and opinion. In Ram v. Moritt [the court] held that statements made regarding the plaintiff ("liar," a "cheat," and a "debtor") in the presence of patients in plaintiff's waiting room were not susceptible of a defamatory meaning; rather they constituted personal opinion and rhetorical hyperbole, not objective fact. [In] Mr. Chow of New York v. Ste. Jour Azur S.A. , [the court] discusses numerous cases where language such as "blackmailing," "traitor," "deceiver," "exploiter," and "liar" were held to be hyperbole and not based in fact. These cases further demonstrate that [defendant's] statements regarding [plaintiff] are mere hyperbole.

Further, ... [t]he court must "consider the publication as a whole," and "not pick out and isolate particular phrases." [T]he meaning of a writing "depends not on isolated or detached statements but on the whole apparent scope and intent"; courts are required to consider "the larger context in which the statements were published, including the nature of the particular forum". Further, statements of opinion which disclose the facts on which they are based are not actionable. [Citations omitted]

In Sabratek, the defendant, the owner of an investment advisory newsletter, called the managers of a corporation liars and frauds. Importantly, the plaintiffs were not considered "public figures," who must meet a much higher standard (malicious intent or reckless disregard for the truth) in order to establish defamation than private citizens. Fisher is almost certainly a public figure in the debate over vaccinations and, therefore, must meet the higher standard.

In the complete context, it is clear that Offit's words, "She lies," is opinion based on Offit's belief that Fisher "inflames people against me." In this regard, Fisher's kvetching about being portrayed as the "bad guy" to Offit's "good guy" actually hurts her case, since it emphasizes that this is a clash of opinion (though, in the case of Offit, well founded opinion fully laid out in the article, as opposed to Fisher's ill-founded opinion about vaccines). Nor is there any hint in the article that Offit had any undisclosed grounds for thinking she lied. His statement is clearly based on what she has said about him and vaccines. Fisher's case will be, just based on the complaint itself, hard pressed to survive an early motion for summary judgment.

Lastly, in an amusing attempt to give some shred of substance to her suit, Fisher alleges a libel per se. Libels per se are, traditionally, statements that a person committed a serious crime; that tend to injure another in his trade, business or profession; that accuse a person of having a loathsome disease; or that impute that a woman is unchaste. Fisher tries to make out a case for injury to her trade, business or profession by alleging she 1) she is the "alter ego" of her supposedly nonprofit organization, the National Vaccine Information Center (NVIC), 2) which is funded by "contributions of public supporters" and that 3) her income is derived from a "small salary" from the NVIC (as well as a pension from her late husband).

In other words, her trade, business or profession is getting the public to donate to a "nonprofit" organization so she can be paid. Kinda makes her complaints about Offit being portrayed as "altruistic" rather hollow, doesn't it?
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