If It Walks Like A Duck, And Censors Like A Duck . . .
Remember Christopher Maloney? Agreeing with P.Z. Myers, I called Maloney a quack, because he's an advocate of naturopathy who suggests that black elderberry will block the H1N1 virus. I also suggested that he might be a censorious douche, a claim that I retracted and clarified when some different quack appeared and took the credit for getting a blog critical of Maloney pulled. Maloney encountered the Streissand Effect, and was quite whiny about it both over at Myers' blog and here:
Ok, let’s have you irritate someone with a national following and get spammed all day by idiots who have no degree and less information about science. I’ve already explained to PZ’s other minions that you are not scientists, you are a mob. Many of you are reasonable human beings, but some of you like to leave threatening messages. I’m not sure, when I have to call the police to check on a threat, is that enough of a threat or is that just whining? And, no, I haven’t actually been burned at the stake, but several of you have offered. What a loverly group of fundies you all turn out to be.
I'm pretty sure that the "national following" part refers to Myers and not to us.
Anyway, if the prior evidence that Maloney is a censorious douche turned out to be mistaken, he's thoughtfully provided new evidence, in the form of a bumptious legal threat to Myers. Maine attorney Maeghan Maloney — who is also a newly elected state representative, and may or may not be related to Christopher Maloney — demanded that Myers retract his statement that Maloney is a quack "within seven (7) business days." Presumably that last is intended to make it clear that the word "seven" is equivalent to the Arabic numeral "7", even for naturopaths.
Meaghan Maloney's legal theory — to use the phrase generously — is that though Myers may have a First Amendment right to say that naturopathy is bunk, the Great State of Maine recognizes and licenses naturopaths, and therefore it is libel per se to say that Christopher Maloney is a quack. Under Maloney's legal theory, if someone convinced some legislative or bureaucratic arm of the State of Maine that a therapist can cure cancer by beating the patient with a live five-pound lobster, it would be libel per se to call lobster-wielding therapists quacks as well.
The problem with this legal theory is that it's a load of utter naturopathy. "Christopher Maloney is a quack" is quintessential opinion, and therefore absolutely protected under the First Amendment to the United States constitution. Pure opinion is not subject to defamation suits. Opinion that implies false facts can be the subject of a defamation suit — but only if those false facts are themselves subject to defamation analysis. The opinion "I think Meaghan Maloney is a bad lawyer, as people convicted of molesting squirrels tend to be," is potentially defamatory, because it implies that Meaghan Maloney has been convicted of molesting squirrels, which presumably she has not been. But "Meaghan Maloney is a bad lawyer because she is making bumptious threats in an effort to stop people from criticizing junk science" is not subject to defamation analysis, because the opinion component implies other opinions, not false facts. In this case, Meyers made it very clear that he viewed Maloney as a quack because Maloney is an advocate and practitioner of naturopathy. Meaghan Maloney admits that Myers has a protected right to call naturopathy quackery. That settles it.
I wonder whether, before sending her feckless and thuggish missive, Meaghan Maloney researched how courts have treated the word "quack" in defamation cases. I did. It took me about five minutes to learn that multiple courts in multiple states in multiple decades have found that calling someone a "quack" is protected opinion and not subject to a defamation suit, particularly when the context shows that it is hyperbole. Yiamouyiannis v. Thompson, 764 S.W.2d 338 (TX 1989) (calling an opponent of flouridation and vaccines a “quack” was pure opinion protected by the First Amendment); Dowling v. Livingstone, 108 Mich. 321 (1896) (it was opinion, not defamation, to refer to an anti-immigration scheme as a “quack remedy”); Gonzalez v Gray, 69 F.Supp.2d 561 (S.D.N.Y. 1999) (husband’s claim that his wife had been having “sex with a quack” was opinion, not defamation against the doctor); Spelson v. CBS, INC., 581 F.Supp. 1195 (N.D. IL 1984) (statement that “nutritionist” treating cancer patients with “vitamins, minerals, and extracts of raw animal organs” was a “cancer quack” was protected opinion). In the rare cases where courts have not protected terms like “quack,” they were used in a context specifically suggesting untrue facts. See, e.g., Nasr v. Connecticut General Life Insurance Company, 632 F.Supp.1024 (E.D. IL 1986) (though calling a doctor a “quack” has been found to be protected opinion, when used in manner suggesting false underlying facts, it was actionable). Courts have made similar findings regarding other epithets, including “charlatan.” Ernst v. Basset, 521 So.2d 414 (La. 1988) (“charlatan” was non-actionable statement of opinion).
In short, if Christopher and Meaghan Maloney follow through on their threat with a lawsuit, Myers should be able to prevail. Regrettably, Maine has a weak-ass SLAPP statute that only applies to petitions to the government — a circumstance that weighs in favor of a national anti-SLAPP statute. But if the Amazing Naturopathic Maloni do sue, Myers should sue their asses for malicious prosecution after getting their censorious suit dismissed. Notwithstanding that Myers probably views me as evil, I would be happy to donate my time to assist his legal defense team in Maine. I've won some SLAPP motions, and attorney fees, in my time.
If these people think this threat would deter PZ Myers, they haven't done their due diligence on him. Of course, it's possible that Meaghan Maloney issued this stupid, stupid threat merely to make Christopher Maloney feel good about himself, or merely to make him think she was doing something. If she did — and if she didn't advise her client that the natural and probable result of her threat was to increase, dramatically, the number of people reading posts calling him a quack and writing new posts calling him a quack — then she's a damned fool and a shitty lawyer, whatever her relationship to him is. Clients want to do angry, foolish things; a decent lawyer's job is to stop them. Even if they are quacks.
Last 5 posts by Ken White
- Minnesota Court Rules That Criminal Libel Statute Is Unconstitutional - May 27th, 2015
- Post-Holiday Deadly-Sin-of-Pride Open Thread - May 26th, 2015
- Happy To Be Here - May 21st, 2015
- How To Spot And Critique Censorship Tropes In The Media's Coverage Of Free Speech Controversies - May 19th, 2015
- Lawsplainer: The Proposed Federal Anti-SLAPP Act: What It Would Do, Why It's Important - May 18th, 2015