Thoughts in a Haystack

The Doctor's Data, Inc. (DDI) suit against Dr. Stephen J. Barrett and his excellent resources Quackwatch and The National Council Against Health Fraud is a piece of work. It's not loony-tunes, like the Institute for Creation Research's lawsuit against the Texas Higher Education Coordinating Board. In some ways, it is much worse. It is a professionally drafted complaint that throws plenty of s**t against the wall in hopes that something might stick. It is nothing but (a lot of) smoke and mirrors in furtherance of an obvious SLAPP suit.

Now, would any reasonable person take the above paragraph as anything other than my opinion? From my characterization of Barrett's resources as "excellent," through my saying that the complaint is "professionally drafted," to my calling it "a piece of work" in aid of a SLAPP suit, is there the slightest doubt that I am expressing my opinion and not stating facts? This is a crucial distinction that must be kept in mind in all libel actions in the US.

An example may help: if I say that person A is "a fraud" (especially when I lay out my reasons for thinking so, with no indication that I have undisclosed information to that effect), I am stating an opinion. The person reading my opinion may credit it, to a greater or lesser degree, based on what s/he knows about me and/or what information I give to support my statement. But that doesn't change the character of my statement from opinion into a statement of fact.

On the other hand, if I say that person A has been "convicted of fraud," I am making a statement of fact about some past encounter of person A with the judicial system. If, in fact, person A has never been found guilty of a criminal fraud, I may (or may not) have libeled that person (there is more to libel than just making a false statement of fact).

Much of the basis of DDI's suit is Dr. Barrett's characterization of the use made by "nonstandard practitioners" (DDI's phrase* ... Barrett actually says "chelation therapists and other offbeat practitioners") of DDI's reports, as well as certain aspects of those reports, as "defrauding" patients. He sets out his basis for that opinion in (what must be for DDI, excruciating) detail in his article, "How the Urine Toxic Metals Test Is Used to Defraud Patients."

Under our Constitution, we are all free to express our opinions, as often and loudly as we choose and despite the discomfort those opinions may give to some people. They can be disgusting opinions, coming from neoNazis or the KKK, but they cannot be stifled, either by police action or by civil courts under the guise of "libel."

The reasons I have for my opinions as to DDI's suit all come from the complaint itself, since I have no independent knowledge of DDI, never having even heard of them before yesterday. I'll be giving more of those reasons as I can get to them.

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* Update: DDI's Exhibt A, an apparent printout of Dr. Barrett's article, supposedly as it existed on March 29, 2010, does contain the phrase "caters to nonstandard practitioners." I was going by the current article as it appears on Quackwatch. While I cannot see how a such a change in the article could affect the outcome of the case, it would be wise for Dr. Barrett to refrain from any further changes to the articles complained of, with the exception of adding information, until the case is over.
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