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Another Libel Suit – This Time Against Paul Offit

by Steven Novella, Jan 04 2010

We are still in the midst of the libel suit brought by the British Chiropractic Association against Simon Singh, and now another defender of science has been targeted by such a suit. Paul Offit, Amy Wallace, and Wired Magazine have been sued for libel by Barbara Loe Fisher, the head of the National Vaccine Information Center (NVIC).

Here is a pdf of the complaint.

The subject of the suit is the excellent article by Amy Wallace criticizing the anti-vaccine movement. Wallace was attacked for this piece by anti-vaccinationists – essentially because she got the story correct. Wallace pointed out that the science strongly favors vaccine effectiveness and safety, and that the anti-vaccine movement is dangerously wrong – hurting the public health with their misinformation. The anti-vaccinationists were apparently very upset over be called out by a mainstream journalist. They got a lot of bad press this year, the Chicago Tribune also did a series of articles detailing the dangerous pseudoscience of the anti-vaccine movement. Wallace’s article earned her a place in the infamous baby-eating photo (along side Offit and yours truly) that only served to further embarrass the anti-vaccine movement via the blog, Age of Autism.

The law suit, in this context, seems like just the next step in the campaign against Offit and Wallace.

The NVIC, despite its innocuous name, is an ideological anti-vaccination group, and they were targeted among others in the Wallace piece. Fisher found a sentence in the article that she felt she could build a libel case around.

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.

“She lies” will now be the subject of as much analysis as the term “bogus” was in Singh’s article about the BCA, so I might as well start. Critics often walk a fine line – we want to accurately portray the actions and claims of the targets of our criticism, without holding any punches, but we have to be clear in our terminology and careful not to inadvertently give the wrong impression. The term “lie” is problematic. It is not necessarily inaccurate, but it can carry implications not intended by the writer, because it may imply something about what another person knows or believes.

Often we speculate, when someone makes a claim that is demonstrably false, are they deliberately lying or are they grossly mistaken. But this is a false dichotomy. There is a vast gray zone in between. Making a claim without due diligence is a form of deception. Often people will make claims as if they are verified and documented truths, without acknowledging that the claim is controversial, or without really verifying the facts. People may care more about the utility of a claim and its relationship to their ideology than whether or not it is objectively true. Are making such claims lying? It is more than being wrong, but not quite a knowing lie.

However, when one is engaged in a public debate and advocacy about an important health issue, one has a responsibility to get basic information correct and to relay it in as unbiased a manner as possible. Being recklessly wrong in such a case may be the moral equivalent of lying.

On the NVIC website there are numerous examples of misinformation. For example, about squalene (a vaccine adjuvant) they write:

However, the use of squalene type vaccine adjuvants, which were allegedly added to experimental anthrax vaccines and made Gulf War soldiers sick, is controversial.

OK – they write “allegedly” so I guess they are covered. But this is still deceptive, and meant to scare people off vaccines. It turns out that there was no squalene in the anthrax vaccines given to Gulf War soldiers. And soldiers who developed unexplained symptoms in the Gulf War were not more likely to have antibodies to squalene. The anthrax vaccine-squalene-Gulf War syndrome connection has been completely demolished at every point. It is no longer “controversial” among scientists.

So is the NVIC statement above a “lie” or is it just sloppy misinformation – and is there a functional difference between the two?

The use of libel suits to intimidate critics and have a chilling effect on open discussion is an old strategy. As I said, the BCA attempted to do that by suing Simon Singh, taking advantage of the horrible English Libel laws. Uri Geller sued James Randi in the past for saying he cannot really bend spoons. Matthias Rath sued Ben Goldacre for criticizing his health claims. Skeptics have, to a degree, engaged in public criticism of pseudoscience with the constant threat of being sued. Even when such suits are legally unsuccessful, they can be financially ruinous and therefore an effective bullying tool.

The ability to sue for libel is an important right to redress legitimate wrongs. But this right can easily be abused to silence open discussion. For this reason many states have SLAPP laws (strategic lawsuit against public participation). Recently the Canadian Supreme Court ruled that the need for open public discussion of important issues is a legitimate defense against a libel suit.

This is also the point behind the Keep Libel Laws out of Science movement, which is partly a backlash against the BCA suit against Singh.

Now the anti-vaccine movement in getting in the game, using the threat of libel to place a chill on legitimate criticism of their dangerous misinformation. It is time for the scientific and skeptical communities to rally behind Paul Offit as we did Simon Singh. I suspect this lawsuit will backfire against Fisher as much as the Singh suit did against the BCA. Let’s take a close look at the claims Fisher makes and whether they constitute “lying”. I suspect she will not hold up well under close scrutiny, just as the BCA claims did not.

Skeptical analysis is all about shining the light of science into those dark places of dubious claims and ideology that fear the light. Libel suits are often used as a tool to shield against the light of open examination, but we should fight back by using them as opportunities to shine even more light. Fisher better put on her sunglasses.

42 Responses to “Another Libel Suit – This Time Against Paul Offit”

  1. Max says:

    They always have to take one sentence or word out of context, don’t they.
    The context is that Offit says Fisher lies about him.

    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).

    If Fisher really does lie about Offit, can he countersue her for defamation?

  2. So basically, Fisher is lying about lying. Wonderful.

  3. Colin says:

    This is a good thing. They’ll lose and it will be the next Dover v. Kitzmiller.

  4. Max says:

    “Let’s take a close look at the claims Fisher makes and whether they constitute ‘lying’. I suspect she will not hold up well under close scrutiny, just as the BCA claims did not.”

    In the U.S., the burden of proof is on Fisher to prove that she never lies. Good luck with that, but not really. Whining that the article doesn’t portray her in a good light won’t fly here.

  5. Bevans says:

    I actually got a call from an anti-vaxxer’s lawyer telling me to remove her name from my blog because I indirectly called her an anti-vaxxer. So they definitely seem to be stepping up the legal threats lately. Must be getting really desperate because people won’t believe their lies anymore (whoops, there’s another one!).

    Where has this been filed? If it’s the UK, it’ll be another difficult battle. But if it’s the US, I don’t see how they can possibly win. I guess it’s just the threat of legal action, hoping to silence their critics. Next step is threats of violence (which has happened to Offit) and then actual violence.

    • It was filed last week in the Commonwealth of Virginia.

      • CW says:

        If the anti-vaxxer’s lawyer is spending time going to blogs and posting threats, that’s billable time right? Well maybe if anything its costing the anti-vaxxers $500 an hour?

      • MoZeu says:

        Which, I might add, has no anti-SLAPP law. No doubt, the forum was selected for this very reason. Defendants could attempt to counterclaim for malicious prosecution, which is harder to establish, but has similar elements.

  6. Jim Lippard says:

    “Lies” *does* imply intentional deception by knowingly uttering falsehoods or omitting truths with intent to deceive. It’s not a word that should be casually thrown around; “fraud” is another that implies intent to deceive.

    It’s generally better to say that someone utters falsehoods than that they lie, unless you are in a position to show that they are intentionally trying to deceive people.

    Max’s statement about the burden of proof being on Fisher to show that she never lies is incorrect–truth is a *defense* to libel available to Offit, not an element of what Fisher needs to show to make her case. If she is a public figure, however, she will have to show malicious intent on Offit’s part.

    • Max says:

      “She utters falsehoods” doesn’t have the same ring to it. Offit grabbed attention with “She lies,” but then immediately clarified what he meant by it.

      “If she is a public figure, however, she will have to show malicious intent on Offit’s part.”

      Not malicious intent, but actual malice, which is knowledge that the published information was false, so she’d have to start by proving that the information was false.

      • “Whining that the article doesn’t portray her in a good light won’t fly here.”

        I suspect that the whiney nature of the complaint was an effort by the lawyers to establish a malicious agenda by Offit and Wallace.

      • Jim Lippard says:

        “Actual malice” requires Fisher to prove that Offit knew that “she lies” is false or that he made the statement with reckless regard to its falsity. The latter wouldn’t require that she show that she never lies, though it would clearly be a very difficult burden of proof for her to meet in light of the falsehoods she utters.

        IMHO, this lawsuit is an invitation for crowd-sourced collection of false statements issued by Fisher and evidence of her failure to correct them when presented with contrary information.

      • MadScientist says:

        Jim’s talking about the typical usage of the word in court – that is absolutely not the way the word is used by teyh general population. We can safely call Barbara Loe Fisher a stinking liar because we know she’s a stinking liar. She may try to use her willful ignorance as a defense for her lies, but the fact that the strives for willful ignorance rather than putting in any effort to establish facts won’t help her any.

      • Jim Lippard says:

        John Pieret, who unlike me actually has a law degree, shows that there are prior cases where “liar” and “pathological liar” were identified as expressions of opinion rather than fact–and thus not defamatory.

        The full context of Offit’s statement also makes it appear that “she lies” was specifically about particular false statements about him which he’s in a position to easily show are false.

  7. Jim Lippard says:

    “Uri Geller sued James Randi in the past for saying he cannot really bend spoons.”

    This is not correct. None of Geller’s suits against Randi were for that reason–they were regarding claims that his spoonbending was *unoriginal*, regarding an accusation that he was responsible for Wilbur Franklin’s suicide (Franklin didn’t even kill himself), and regarding a claim that he was arrested for false claims in Israel (it was a civil, not a criminal case).

  8. Jim – the essence of the Geller suit was for Randi casting doubt on his spoon-bending ability. The details were proxies for legal purposes.

    The term “lie” is problematic – as I stated – and it is probably best to avoid it (and “fraud”, I agree).

    But I maintain there is a gray zone. Claiming to provide scientific information, then passing along biased ideological information without checking to see if it is scientifically accurate, is deceptive. “Spin” is also in the gray zone. You can deliberately deceive without stating outright falsehoods.

    What if someone makes a false statement, they are then publicly called on it, yet they continue to make the statement without addressing their critics?

    • If you can prove that someone knew she was being called on her false statements, and continue to make them, then you would have a strong case for calling her a liar.

    • Max says:

      Consult Al Franken, who wrote Lies and the Lying Liars Who Tell Them
      I don’t know of any defamation lawsuits concerning the book.

      • CW says:

        Franken’s targets just reply with more crappy books of their own.

      • tmac57 says:

        I got the sense from reading that book, that Franken was basically calling the subjects out and saying “if you think that this is libel, then come on, make my day!” Maybe Offit will have the last laugh.

    • Jim Lippard says:

      “the essence of the Geller suit was for Randi casting doubt on his spoon-bending ability” — which suit? I don’t think that’s a correct description of any of them. The Japan lawsuit was specifically about the claim that Geller caused Wilbur Franklin to commit suicide, the Hungary lawsuit was specifically about the claim that Geller and Strang were “swindlers,” and the U.S. case against Randi and CSICOP was based on a statement in the International Herald Tribune that Geller “tricked even reputable scientists” with tricks that “are the kind that used to be on the back of cereal boxes when I was a kid. Apparently scientists don’t eat cornflakes any more.” None of those suits were about Geller’s ability to bend spoons.

      “You can deliberately deceive without stating outright falsehoods.” That’s correct, but you can’t deliberately deceive without intending to deliberately deceive, that’s what the “deliberately” part means.

      “What if someone makes a false statement, they are then publicly called on it, yet they continue to make the statement without addressing their critics?” I think that gives you prima facie evidence of deliberate deception, unless they offered a believable rebuttal when called on the false statement.

  9. Chris Howard says:

    Could the claims of such people be considered criminal negligence?

  10. Trimegistus says:

    Is there some way for the U.S. to declare that it won’t recognize British libel law for American citizens, and any attempts to impose judgements on Americans for stating the truth will be considered hostile acts? It’s insane that crackpots can jurisdiction-shop and then circumvent the Constitution with foreign laws. It’s also a very scary precedent — just think of all the other villains, foreign and domestic, who’d love to be able to silence their critics.

    • Jim Lippard says:

      Trimegistus: British libel law is irrelevant to this particular case, filed in U.S. district court.

      The state of New York passed the “Libel Terrorism Protection Act” in 2008, so residents of that state are protected against foreign judgments for libel being entered against them and not having the right to contest them in U.S. courts. That specifically protected author Rachel Ehrenfeld against a UK libel judgment won by Khalid Salim A. Bin Mahfouz against her for statements in her book _Funding Evil: How Terrorism is Financed–And How to Stop It_.

  11. Paul G says:

    Thanks Steven.

    Excellent points and weighty considerations for all.

    I’m in Oz and litigious action is not as robust as in the USA but no doubt our Great Imitator will learn as quickly as with other things ala anti-vaxx. Vexacious litigation down here, is oft’ associated with repetitive and personal abuse of the legal system.

    I note however, this is a function of precedents [particularly in Victoria] and not strictly definition;

    “Vexatious litigation is legal action which is brought, regardless of its merits, solely to harass or subdue an adversary. It may take the form of a primary frivolous lawsuit or may be the repetitive, burdensome, and unwarranted filing of meritless motions in a matter which is otherwise a meritorious cause of action….”.

    Yet the primary definition concerning NSW [which is relevant to anti-vaxx in Oz] asserts that a VL is one who “habitually and persistently institutes vexatious legal proceedings without any reasonable grounds.”

    Aussie readers:

    NSW Supreme Court on vexacious proceedings:

  12. MadScientist says:

    What to do about lying ignoramuses like the National Vaccine Lies Center? Their mindless acolytes threaten people like Paul Offit and now they’re trying to waste the courts’ time? They’re nothing but lying ignorant thugs.

  13. Bob Svercl says:

    I’m definitely not a lawyer, nor do I have any above-average legal know-how, but is the following possible: Can the defense find speeches/statements/etc. made by Fisher talking about Offit that are untrue (thereby proving that Fisher indeed lies)?

    Also, anybody else tool around on the NVIC website? There’s a great “Vaccine Ingredients Calculator” that somewhat simplifies all ingredients to mercury alone. I’m not sure that the NVIC is preaching truth, and hopefully that can be used to help the defense.

    • Max says:

      Typical example
      “Offit’s attempt to exonerate DPT is part of a larger effort to convince the public – and drug company stockholders – that most vaccines, including his own, have no risks whatsoever.”

    • Max says:

      Their calculator compares the amount of ethylmercury in vaccines to the EPA Reference Dose of methylmercury in food. Of course, the calculator just calls it “mercury”, so it’s a lie by omission, which I hope has been pointed out to NVIC.

      • I did a little article on NVIC at “Evil Possum”. It includes my experiment with the mercury calculator. Interesting things happened when I assumed a weight of only 10kg…

    • MadScientist says:

      It’s not that simple. You have to look at the plaintiff’s complaints and address the charges. The fact that Fisher is a demonstrable liar may have little to no bearing on the actual complaints and how they are addressed.

      • Bob Svercl says:

        I have to admit, I’m still feeling biased on the side of Wired magazine for the article. I do wonder what steps Fisher took in order to contact the magazine to try and either have the article pulled or remove the statements made about her (even with a notice/update to the article). What about a formal apology? All Fisher seems to want (from reading the complaint) is monetary compensation.

        On the other hand, is this a situation where someone trying to be skeptical slipped up in their medium, and we should let the court case go? I agree with Steven that the attention brought to the NVIC should be used in our favor to show the nation (most likely) their factual shortcomings and hopefully educate more people.

      • Max says:

        “All Fisher seems to want (from reading the complaint) is monetary compensation.”

        Fisher wants to bully her critics into censoring themselves, but of course she wouldn’t say that in the complaint.

  14. science-based humanist says:

    Steven, please keep your readers posted as to what we can do to help. Conde Nast has its own lawyers/can afford good representation and will defend Amy Wallace. But Dr. Offit will presumably have to retain/pay for his own counsel.

  15. Lone Wolf says:

    This is bullshit! But is seems Paul Offit will not be able to “win” (there is no winning in British liable) this because of the lie statement.
    If any one needed more proof that anti-vaccination is pseudoscience crap this is it.

  16. ausduck says:

    I find it interesting that the body of the complaint yet again has the antivaxxer’s litany of ‘we’re just a poor, independent, voluntary, public funded organisation trying to present the real facts and promote freedom of choice’. This is also the predictable common reply to any criticism of the current prominent antivax (although they are publicly adamant they are not antivax) group here in Australia. Propaganda, that’s all it is. And here in Aus it is propaganda designed to appeal directly to our sense of backing the underdog, the fighter against authority/big business/the guv’ment.
    I hope this case backfires against Fisher and her organisation the way that the Singh case has backfired against the BCA. Sometimes one can be too clever.

  17. Linda Rosa says:

    I think Offit has good grounds claiming immunity because Fisher is a public figure. To a large degree, Fisher makes the case herself when in her suit she claims significant losses because of the WIRED article, that she has appeared on numerous TV programs, etc.

  18. Karen Haack says:

    I know Paul Offit is a lier….He stated in an article that it would be safe to give a child 100,000 vaccines. I personally would be more then willing to give them to him.

    • Chris says:

      Wrong. His comment was the amount of antigens in vaccines, not the vaccines themselves. You are exposed to many more bacterial, viral and other types of antigens everyday than are in a vaccine. You can read his own words here:

      Here is one quote from that paper you might find interesting: Of course, most vaccines contain far fewer than 100 antigens (for example, the hepatitis B, diphtheria, and tetanus vaccines each contain 1 antigen),

      The liar is the one who claims he was referring to actual vaccines. Also only a liar claims that the rotavirus vaccine he invented caused intussusception and was withdrawn (that was RotaShield). And only liars claim he was on the committee that voted to add RotaTeq to the vaccine schedule (he had not been on ACIP for three years, and even so, the rules would not allow him in that decision process). Just so you know.

      • Evan Christman says:

        Quickly reviewing the article that you linked shows that Dr. Offit did say “each infant would have the theoretical capacity to respond to about 10,000 vaccines at any one time”. When he mentioned 100,000 he was referring to antigens. However, when he said 10,000 he was referring to vaccines. The fact is that the statement is still irresponsible.

        We may have an enormous capacity to deal with antigens, but typically the antigens we are exposed to on a daily basis do not get subdermally injected into the body. They go through the skin and mucous membranes. Do we really have the same capacity to resist antigens that are directly injected into the body?

        It is interesting how these so called science and skeptic blogs are so closed minded when it comes to vaccines. The fact is that the quality and type of vaccine research is thoroughly inadequate. They skewer anyone who raises questions about the sacred cow of vaccines.

        I for one would like to see a large scale long term study comparing the health outcomes of vaccinated vs. unvaccinated children. Has one been done? The answer is no. To my knowledge, it hasn’t been done. If it has been done, then please point me in the right direction. How can we say that injecting children with all the vaccines that they receive is safe and effective, if we haven’t done this type of research in humans or animals?

        Remember that the “experts” were telling women that hormone replacement therapy (HRT) would protect them from cancer, strokes and heart attacks prior to the Nurses Health Study. The Nurses Health Study found that HRT actually increased the likelihood of cancer, stroke and heart attacks.

  19. Liz Ditz says:

    @15 Lone Wolf: this is a suit by an American against 3 Americans brought in a US jurisdiction (state of Virginia).

    Now for the good news: my belief is that as our host says:

    “Skeptical analysis is all about shining the light of science into those dark places of dubious claims and ideology that fear the light. Libel suits are often used as a tool to shield against the light of open examination, but we should fight back by using them as opportunities to shine even more light. Fisher better put on her sunglasses.”