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:

• Neurologica Blog
  
• Respectful Insolence
• Terra Sigillata