Tagged: junk science

"Atavistic Oncology" Doctor Develops New And Exciting Theories of Defamation Law

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Dr. Frank Arguello is an advocate for an "atavistic" theory of cancer. What does that mean? Well:

Atavistic metamorphosis proposes that cancer cells are cells that have reverted, evolutionarily, to their ancestral, independent status as unicellular organisms. It is from there that cancer only occurs in plants and animals/humans (multicellular organisms). This also explains why cancer does not occur nor can be induced experimentally in unicellular organisms such as bacteria, fungi and protozoa.


Dispatches From The Junk Science Front

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In 2008 I pointed out that the TSA's pseudo-scientific "behavior detection" program seemed almost indistinguishable from random chance. Five years and millions of gropes-by-government-agents later, the General Accounting Office agrees:

The program called Screening of Passengers by Observation Techniques (SPOT) trains TSA officers to identify suspicious behavior that could reveal a terrorist. While it has been criticized for years for alleged racial profiling, TSA officials say it is a key part of screening airline passengers.

The Government Accountability Office reviewed 400 studies over 60 years that found people are only slightly better than chance at spotting deceptive behavior. And a Department of Homeland Security study in April 2011 intended to validate the program was unable to demonstrate its effectiveness because of unreliable data, according to the new GAO report.

The program has cost a billion dollars. The TSA can't demonstrate that it works using accepted scientific means. The TSA's reaction is unsurprising: "yeah, well, our other methods are even worse:"

Behavior Detection Officers also operate a program called Managed Inclusion which evaluates passengers at the checkpoints and allows some to enter the faster Pre-Check lanes.

"Defunding the program is not the answer," Pistole said. "There would be fewer passengers going through expedited screening, there would be increased pat downs, there would be longer lines, and more frustration by the traveling public."

Or, put another way, a piece of shit is better than no piece of anything:

The union representing TSA officers defended the program.

"An imperfect deterrent to terrorist attacks is better than no deterrent at all, " said American Federation of Government Employees National President David Cox, speaking in a conference call after the hearing. "Is it a perfect program? No, but until we have a better program, we shouldn't just trash and burn this program."

That's so sciency! "Well, I can't prove this hypothesis. But until I come up with a better hypothesis, I think we should stick with this one."

Meanwhile, in Texas . . .

. . . did you just say "aw, shit, this is gonna be awful, because it's Texas?" Perhaps you did. Perhaps you are not completely unjustified in leaping to that conclusion. But you're wrong. Texas, it turns out, passed an innovative law to allow prisoners to attack convictions premised on discredited junk science spouted by prosecution "experts." Last week, using that law, a Texas court overturned the convictions of four women caught up in the "ritualized child abuse" scare of the 1980s and 1990s:

Indeed, at the original trial of the San Antonio Four, a pediatrician testified that the victims exhibited physical signs of sexual abuse. This expert testimony provided the prosecution with much needed corroboration of the two girls' stories. Such medical testimony, however, has now been debunked by new understandings in the field of pediatrics. If the two girls had been physically examined using today's standards, the medical testimony would no longer corroborate the allegations of sexual abuse.

Like many of the defendants in ritualized-abuse cases, the San Antonio Four faced bizarre and fanciful claims that should have triggered skepticism — had not "think of the children!" drowned out all critical thought. Like many such defendants, junk science and bizarre and facially questionable allegations combined with innate identity-based hostility:

A witness for the prosecution, pediatrician Nancy Kellogg, testified that the two young girls’ injuries were used in satanic rituals prevalent among lesbians.

I don't claim to be a scientist. I'm functionally scientifically illiterate. But I know enough to understand that science is about questioning and proving, and that when it's the government that shows up with the snake oil, we too often accept it without scrutiny. That may be because the government usually packages junk science with fear.

Confronting Junk Science: Keep Calm And Carry On

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Various skeptic blogs, particularly those in the United Kingdom, are aflame over a magazine called "What Doctors Don't Tell You," which appears to be an uninhibited woo-fest of conspiratorial-minded pseudo-medical junk science. What's notable about the magazine is not that it exists — there's a zine for every viewpoint, even in the age of the blog. No, what concerns the skeptics is that the magazine is being carried by mainstream stores like WHSmith and Sainsbury. It's like walking into Starbucks and seeing that their newspaper rack has pamphlets about the moon landing being faked.

Some skeptics have begun to write to the corporations stocking the magazine urging them not to, which has led to accusations of censorship. I think those criticisms are off-based, but I have a few respectful words of advice to the skeptics as a free speech advocate.

First: please be aware of the opponents you face, and the rhetorical and legal arena in which you fight. In the junk scientists — let's call them "advocates of non-traditional medicine" for the sake of this point — you are dealing with a community increasingly characterized by an appetite for aggressive censorship. In the United Kingdom, you have an arena with a level of protection for free speech that — and I say this out of love, with a debt of gratitude for my common law heritage and the language I love — sucks donkey balls. It sucks so badly that we've had to pass laws specifically providing that your ludicrous defamation judgments usually aren't enforceable here. My point is this: to the extent you employ censorious measures, you can expect them to be turned against you later by your foes, with the cooperation of your largely censorship-indifferent government. Do not take up any weapon you don't want used against you.

Second: mind the rhetoric, please. Freedom of expression is threatened not only by specifically censorious methods, but by flexible and insipid memes and mottoes. When I see Keir Liddle employing the "fire in a crowded theater" image — the unprincipled nature and repulsive origins of which I discussed recently — I roll my eyes. Andy Lewis' headline "This is not an Issue of Free Speech, but of Responsible Speech" is a cringe-inducing appeal to the categorical dodge. I guarantee you that Mr. Lewis will see some future attack against his writing spun as "this isn't an issue of free speech, but of harassment/bullying/defamation/abuse." Ladies and gentlemen, using sloppy rhetoric in discussions of freedom of expression hands weapons to censors. Broader censorship will not ultimately benefit skeptics.

Third: notwithstanding the above, boycotts and complaints are an acceptable more-speech remedy, whatever the junk scientists might complain. These stores are private actors; informing them of the nature of a magazine they stock, advocating that they make a different private decision, or even threatening to boycott is part of the marketplace of ideas. Of course, if woo merchants organize some boycott that the skeptics don't like, and the skeptics argue that it is censorious, they should be called out for hypocrisy.

Fourth, I urge extreme caution in involving the government and quasi-government entities. Some skeptics advocate reporting the magazine to the government, or to non-governmental self-regulatory advertising bodies. Such reports may be based on genuinely misleading advertisements — the magazine sounds chock-full of advertisements that sound like the pseudo-medical version of x-ray specs in the back of comic books. But European advertisement regulation is already shot through with meddling silliness and the United Kingdom — and again, I say this with love — already has grave nanny-state issues. I admire the skeptical movement to the extent it pursues the goals of truth, open inquiry, and human dignity and autonomy. Ask yourselves — do governmental and quasi-governmental entities advance those goals? Does involving them in a dispute advance those goals?

Ultimately the marketplace of ideas is the best place to rebut what this magazine is peddling. I look forward to reading more critiques of the magazine and its contents in that marketplace.

Brian Deer and the British Medical Journal File An Anti-SLAPP Motion Against Andrew Wakefield

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A few months ago I pointed out that Andrew Wakefield had sued Brian Deer and the British Medical Journal for defamation. Mr. Wakefield, you might recall, is a widely discredited advocate for the position that vaccines cause autism, a position cherished by people who believe that the scientific method involves believing things very fervently.

In my post I predicted that Wakefield's suit would be an excellent opportunity to test-drive Texas' aggressive new anti-SLAPP statute. As predicted, Mr. Deer and the BMJ have filed an anti-SLAPP motion, which you can read in full here at Mr. Deer's web site.

A fair evaluation of the motion will take a slow and careful reading, which I will eventually undertake. For now, three points: (1) upon a quick read, it appears very strong, (2) note that Mr. Deer and the BMJ "specially appear" to file the motion, preserving their challenge to the Texas court's personal jurisdiction over them (which, hopefully, the Texas court will permit), and (3) if the court finds that the defendants have established that Wakefield's suit is premised on their exercise of protected speech (which the court almost certainly will), then the burden shifts to Wakefield to come forward with admissible evidence sufficient to prove that he can possibly prevail on his claims even in light of the relevant privileges and constitutional protections. In other words, Wakefield will be forced to come forward with actual evidence.

This is one to watch.

Thanks to Mr. Deer for the note referring me to his website and the motion.

Andrew Wakefield Sues BMJ and Brian Deer: Time To Test Out the New Texas Anti-SLAPP Statute

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If you've followed the public discussion over the purported connection between vaccines and autism, you know the name Andrew Wakefield. Wakefield's 1998 article in Lancet purported to find a connection and has long been a battle-standard of anti-vaxxers. Wakefield's purported findings were later widely discredited, and Lancet retracted the original article.

This week Andrew Wakefield sued some of his critics in state court in Texas. Specifically, he sued the British Medical Journal, or "BMJ," and writer Brian Deer. The lawsuit accuses BMJ and Deer of defamation for their vigorous criticism of Wakefield, his publications, his studies, and his claims.

My purpose in this post is not to review what, at the risk of using the term loosely, I will call the "scientific dispute"; others far better qualified than I have discussed Wakefield's record exhaustively. Rather, I have two other purposes: to discuss an attribute of the modern "alternative" medicine movement, and to discuss the significance of Texas' new anti-SLAPP statute to this lawsuit.

First, the "alternative medicine" movement. I use that term to refer both to purveyors of treatments not generally accepted by Western medicine — naturopathy, homeopathy, etc. — and to refer to conspiracy-minded groups that believe that the FDA and "Big Pharma" and the Medical-Industrial Complex are concealing grave truths about Western medicine (like, for instance, the notion that vaccines cause autism).

At the risk of sounding unscientific, the alternative medicine movement strikes me as having a serious taste for censorship and an ingrained intolerance for dissent and criticism. I've written about it here: anti-vax lawyer Clifford Shoemaker's legal harassment of Neurodiversity blogger Kathleen Seidel, the British Chiropractic Association's failed crusade against Simon Singh, naturopath Christopher Maloney's feckless SLAPP threat against blogger Michael Hawkins, and even Marc Stephens lawyer-posing against critics of the Burzynski Clinic.

I realize that is a limited sample from which to draw conclusions, and that nobody has tested my thesis. But if purveyors of tinfoil-hat science have taught me anything, it is that (1) peer review is a hoax, and (2) all alternative medicine practitioners everywhere carry the diluted memory of these particular examples.

Second, the Texas suit by Wakefield will be an excellent opportunity to test Texas' new anti-SLAPP law. Anti-SLAPP laws, for those not familiar with them, are statutes allowing defendants who have been sued based on their speech to force the plaintiffs to establish they have a valid basis for their suit before going forward, and to collect attorney fees if the plaintiff fails. I am rather fond of them.

Anti-SLAPP laws vary from broad and useful to weak and nearly useless. Texas' statute appears to be one of the broadly written and strong ones. If BMJ and Deer decide to use it, here's how it will work:

1. BMJ and Deer have the initial burden of showing that the lawsuit is "based on, relates to, or is in response to" their exercise of their rights to free speech, petition, or association. Those terms are defined pleasingly broadly:

(2) ”Exercise of the right of association” means a communication between individuals who join together to collectively express, promote, pursue, or defend common interests.

(3) ”Exercise of the right of free speech” means a communication made in connection with a matter of public concern.

(4) ”Exercise of the right to petition” means any of the following:

(A) a communication in or pertaining to:

(i) a judicial proceeding;

(ii) an official proceeding, other than a judicial proceeding, to administer the law;

(iii) an executive or other proceeding before a department of the state or federal government or a subdivision of the state or federal government;

(iv) a legislative proceeding, including a proceeding of a legislative committee;

(v) a proceeding before an entity that requires by rule that public notice be given before proceedings of that entity;

(vi) a proceeding in or before a managing board of an educational or eleemosynary institution supported directly or indirectly from public revenue;

(vii) a proceeding of the governing body of any political subdivision of this state;

(viii) a report of or debate and statements made in a proceeding described by Subparagraph (iii), (iv), (v), (vi), or (vii); or

(ix) a public meeting dealing with a public purpose, including statements and discussions at the meeting or other matters of public concern occurring at the meeting;

(B) a communication in connection with an issue under consideration or review by a legislative, executive, judicial, or other governmental body or in another governmental or official proceeding;

(C) a communication that is reasonably likely to encourage consideration or review of an issue by a legislative, executive, judicial, or other governmental body or in another governmental or official proceeding;

(D) a communication reasonably likely to enlist public participation in an effort to effect consideration of an issue by a legislative, executive, judicial, or other governmental body or in another governmental or official proceeding; and

(E) any other communication that falls within the protection of the right to petition government under the Constitution of the United States or the constitution of this state.

2. BMJ and Deer should have no trouble whatsoever meeting that definition — the complaint targets speech about a classic matter of public concern. (Note that the statute does not say "protected by the First Amendment," meaning that Wakefield can't claim that their communications don't qualify because they were uttered in the United Kingdom.) Therefore, the statute requires the judge to dismiss the case unless Wakefield "establishes by clear and specific evidence a prima facie case for each essential element of the claim in question." What does that mean? Following California's model, it probably means that Wakefield must offer specific and admissible evidence that, if believed, would show he is entitled to relief and that the First Amendment or other legal doctrines do not protect the speech complained of. (Note that the First Amendment would protect the BMJ and Deer for these purposes because Wakefield is attempting to use a court — an instrumentality of state government — to punish speech.)

There are subtle differences between an anti-SLAPP motion and a motion to dismiss, sometimes called a demurrer. Generally a motion to dismiss must be based only on the four corners of the complaint — evidence is irrelevant, with a few narrow exceptions. By contrast, good anti-SLAPP statutes — like Texas' — allow the defendant to offer evidence. For instance, BMJ and Deer can submit the full text of the writings complained of so that the judge can evaluate them rather than the complaint's summary or characterization of them. This is particularly important when a defense is based, for instance, on asserting that a complained-of statement is a protected opinion, not a false statement of fact, when viewed in context. Submitting evidence can make it dramatically more difficult for a plaintiff to carry his burden. For instance, a defendant accused of a false statement against a public figure might submit a declaration explaining that he was repeating something heard from a reliable source, thus making it almost impossible to make a showing of malice.

3. If Wakefield can't carry that burden, the court must dismiss the complaint and award legal fees and costs to the defense.

I see one gateway legal issue complicating application of the new anti-SLAPP statute: personal jurisdiction. As The Skeptical Lawyer points out, it is questionable whether the Texas court has personal jurisdiction over Brits BMJ and Deer. This is a hot topic: by merely writing something published worldwide, do you subject yourself to jurisdiction wherever that thing is read, or wherever the subject lives? Hell, I sure hope not; that would be a ludicrous result. (Shame on you, Florida.)

Here's the complication: BMJ and Deer may not be able to file a SLAPP motion without subjecting themselves to the jurisdiction of the Texas court. I'm not a Texas lawyer, but in most jurisdictions, when you are contesting personal jurisdiction, you can only make a special appearance for purposes of filing a motion seeking to dismiss for lack of personal jurisdiction. If you make a broader appearance, courts often deem you to have consented to jurisdiction. Does that mean BMJ and Deer must first file a motion to dismiss for lack of personal jurisdiction, and then file a SLAPP motion if they lose? Maybe. Perhaps a Texas practitioner could chime in. For myself, I'd be inclined to remove the case to federal court based on diversity jurisdiction and litigate the issues there. I have nothing against Texas state courts, other than not particularly trusting Texas state courts. I'd rather address an issue like this in federal court, where judges have more manageable dockets, have more support from law clerks and staff, are more accustomed to resolving legally complex motion practice, and (in my opinion) tend on average to have a higher level of professionalism. Federal courts sitting in diversity apply state anti-SLAPP laws, so the defendants could still pursue that motion after they worked out the jurisdictional issue.

The Texas suit poses many other legal issues; The Skeptical Lawyer discusses some of them. It's one to watch. Stay tuned.

Edit: Orac on the science of it.

Edit 2: I completely forgot to give Liz a hat tip for pointing me to this; she's keeping a list of posts about it.

Pro Bono Victory In A Junk-Science SLAPP Suit Against A Science Blogger

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As I said recently, even though my identity is no longer a semi-secret, I don't promote my firm or my legal career on this blog. My firm has noting to do with Popehat's content and exercises no editorial control over it. I write here to promote issues that are important to me, for self-expression, because the community of readers and bloggers and commenters is a joy, and because I learn from that community every day. I certainly don't name clients and talk about their cases in an identifiable way here.

Today, with a client's permission, I'm making an exception. I'm doing so to tell you about the successful resolution of a First Amendment pro bono case. I'm doing so because the case is all about free speech, bogus legal threats, and SLAPP suits, some of Popehat's core topics. Sure, it's no Marc Stephens drama, but it's in our wheelhouse.

The pro bono client is Michael Hawkins of For the Sake of Science, and the adversary is Dr. Christopher Maloney, a licensed naturopath in Maine. You can read Michael Hawkins' account of the case here. This is my account.


Tell Me About The Rabbit, Marc Stephens

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Yesterday I shared with our readers the story of Marc Stephens, a bumptious non-lawyer whose fatuous threats dramatically magnified and multiplied the bad press of his putative client, the Burzynski Clinic.

This morning I awoke to a friendly note from Marc Stephens — using the same email address he has when threatening other bloggers, the same address I used to seek comment from him before posting. The note contained what I would characterize as a decent effort, given his apparent abilities, to intimidate me. He sent it to my Popehat address and to my real-world big-boy-pants Ken's-sekrit-identity law firm address. Here's what he had to say:

Hello Kenneth, or Ken @ Popehat,

Please confirm your information below. Please note that the case of Skeptics Society/JREF is under federal investigation for identity theft. I suggest you remove all articles on your website in relation to this email address and/or individuals immediately. Please confirm, at this email address, when you have removed the articles.

Are you associated, or a member of The Skeptic Society / James Randi Educational Foundation? We have noticed on your twitter account that you requested an individual to investigate this email account. All of your actions have been recorded.

If we do not hear from you, your information will be forwarded for further investigation, and a associate will contact you. Please confirm if you are Ken@popehat/Kenneth [SektritIdentity] immediately.

[Ken's sekrit work phone and IP address.]

Marc Stephens also included what appears to me a screen shot of some back and forth tweets from the Popehat Twitter account with another Twitter user.

I've decided to make my response public. Here it is.

Dear Marc Stephens:

Congratulations on figuring out my top-secret identity! Only about a dozen people — falling into the elect group of "those who have tried" — have ever managed to do that. I think the last one was a law student at Tulane who was too drunk to study for Real Property.

Anyway, please rest assured that I am totally all terrified here that you identified me. Really. I have goose bumps. I'd take a pic and post it but my iPhone is dead again.

I'd like to address some of your questions and comments, Marc.

Please note that the case of Skeptics Society/JREF is under federal investigation for identity theft.

Under federal investigation! Fascinating. That's all very foreign and scary-sounding and likely to deter me. I mean, it would be, except that I've practiced federal criminal law for seventeen years, one as a clerk for a federal judge, five as a federal prosecutor, and the rest as a federal defense attorney, not counting various internships. I'm actually kind of familiar with federal agencies and federal investigations. I've both run them and thwarted them. So, Marc, would you like to tell me the federal agency you're dealing with, and let me know the name of the case agent? I'd love to call them and answer any questions they have about the investigation.

Also, your reference to "identity theft" fascinates me, because previously it seems you've been complaining that everyone you're angry at is guilty of defamation and mean-scientist-fraud and stuff. I think the identity theft is new. Can you explain? Is it — could I hope — are you going with the "I've been caught being a total douche to dozens of strangers by email, and have fraudulently posed as an attorney, and now I've been publicly humiliated, so I'd like to get a mulligan here, so I'm going to go with 'oh noes my email was hacked and the hacker did nasty things?'" Would that be the same email account you're now using to email me? So I guess you regained control of it? Yeah, Marc, you've got to let me know how that works out, because I've frankly sent some regrettable emails in my life that I'd like to walk back, and I'm eager to hear if this approach works. The "when you get an email like that from me, a wizard did it" approach hasn't been working for me.

I suggest you remove all articles on your website in relation to this email address and/or individuals immediately. Please confirm, at this email address, when you have removed the articles.

Marc, kindly take this post — the link to which I will email to you — as a formal, legally binding, 100% certified style invitation to snort my taint.

Are you associated, or a member of The Skeptic Society / James Randi Educational Foundation? We have noticed on your twitter account that you requested an individual to investigate this email account. All of your actions have been recorded.

Well, Marc, I'm not sure the Skeptic Society or the Randi Education Foundation would let a former Presbyterian deacon in. Also, I'm not really a scientist. I'm just a humble lawyer and blogger. I'm a loner, Marc. A rebel. So, no.

Also, can you tell me who the "we" is in "we have noticed"? You're correct that I used Twitter to discuss, with another Twitter user, investigating your email account. Oh. Is that what you mean by identity theft? Are you using "theft" in the "casually peruse public records of" sense? Am I breaking some sort of federal law that I've never heard of in 17 years as a federal criminal lawyer by Googling your email address? Wow. I must have missed that one.

Also, when you say "all your actions have been recorded," could you elaborate? Because, I mean, my Twitter actions are still on Twitter. And my blog posts are still up here. Are you talking about nifty screenshots, like the one you sent me in your email? Screenshots rock. I've been trying to figure out how to post pics of my Skyrim character when he's put, like, twelve arrows into a Forsaken's head and the guy is still blundering around like a post-apocalyptic hedgehog. It's hilarious. But I might be straying a bit from my point. Did you record me on videotape? Or audio? Do you still use audio? Did you record me on 8-track? God I loved 8-track. I had a girlfriend in college who had 8-track in this ancient station wagon of hers and we would . . . you know, never mind. Anyway, if you have me recorded on 8-track, could I get a copy?

If we do not hear from you, your information will be forwarded for further investigation, and a associate will contact you.

There's "we" again. Honestly, Marc, you're starting to freak me out. How many of you are there? Is this the same "we" as above, or a different "we"? Also, is the associate part of the "we" or not? Are you talking about, like, a law firm associate? Because if you have a lawyer, Marc, I'd be totes happy to call him right now. Or do you mean an "associate" in the sense of "Wayne, who lets me sleep on his futon when I can't pick up enough shifts at Arby's?" Or is it more malevolent, like in mob movies: "my associate, [name with 'the' in the middle], will discuss this with you"? Or . . . wait a minute, Marc. Can . . . can anyone other than you see and hear this associate? Because if this associate is a giant goddam invisible rabbit, Marc, that's a deal-breaker. I hate rabbits, and a six-foot invisible rabbit would freak me right the fuck out. Are you siccing your invisible rabbit on me, Marc? Because if that's what you're saying, I think we have a problem here and there SHOULD be a federal investigation. Threatening people with giant rabbits through the electronic mails is almost certain a violation of several federal statutes, possibly including wire fraud depending on the existence or non-existence of the rabbit. But a sharp legal guy like you already knew that, right Marc? My God. You're already, like, three steps ahead of me.

Anyway, Marc, I notice that you haven't specified any factual statements in my post that you think are incorrect. Can you? I'd be happy to hear you out. Are you a lawyer, Marc? Is it your intention to convey to people that you are a lawyer? People want to know, Marc.

Must run, have to berate an associate;


Edited to add: If you liked this tale of an exchange with someone who tries to threaten skeptics, you might like this recent pro bono success.

Junk Science And Marketeers and Legal Threats, Oh My!

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Bloggers love it when themes collide — when a story reflects one of their pet topics intersecting with an entirely unrelated but equally important pet topic. It's like Sad Keanu or Rebecca Black getting into a fistfight with an ungrammatical kitten or one of those YA RLY owls.

That's why this story delights me. It's got everything we love at Popehat. It's got free speech, legal threats, SLAPP issues, junk science, bad marketing, and proves the familiar catchphrase "outsource your marketing, outsource your reputation and ethics." If someone in the story could just get their junk touched by the TSA and draw a disapproving comment from a blimp-riding Ron Paul, I think I would have either a stroke or an inappropriate orgasm.

So, without further ado, I'd like you to meet Marc Stephens, who wants you to think he is an attorney.


The CSI Effect And The Perils of Faith In Science

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Nearly everyone's heard of the CSI Effect – the hypothesis that the ubiquity of crime-scene-technician shows on TV has led juries to demand more tangible forensic evidence of crime, and has led them to disdain eyewitness evidence and circumstantial evidence that doesn't seem "scientific" enough. Whether the effect exists or not, it's become a staple of attorney conventional wisdom.

That conventional wisdom leads people to assume that the CSI Effect is good for the defense — it makes jurors more skeptical of prosecution cases and prosecution witnesses. This may or may not be true. But to the extent it's true, it's a double-edged sword: the glut of look-at-the-pretty-lab-technician shows on TV encourage a credulous approach to the sort of scientists who wind up on the stand.

Why is that a bad thing? Because some of the "scientists" who wind up on the stand — not to mention the "scientists" who convince police and prosecutors to bring charges in the first place — are hacks, or are relying upon scientific fads that do not stand the test of time.

To see the impact that credulity can have, consider the series this week jointly produced by NPR, Frontline, and Pro Publica In that series, "The Child Cases," those three journalistic entities identified two dozen citizens of the United States and Canada who were accused of the murder of children in their care and later cleared by more scrupulous scientific analysis. Each was a victim of junk science, rush to judgment, and our inability, as a society, to keep our head on straight when we perceive a threat to children.

The NPR/Frontline/ProPublica series is appalling, but ought not be surprising. Critical observers of the criminal justice system have known for some time that it relies upon junk science, particularly when kids are involved. When the flavor-of-the-week threat to children is British nannies thrashing kids around like a ShakeWeight, the system pushes the highly questionable "shaken baby syndrome." When we're in one of our periodic witch-hunts for elaborate, ritualized child abuse, the system relies upon highly questionable child-victim-interrogation techniques favored by "child advocates" but later widely recognized to be likely to produce false reports of abuse. Bite marks have risen and fallen again in the esteem of the scientific community. And, of course, all scientific testimony is subject to GIGO: if the scientific process of evidence collection is tainted, or the nuts and bolts of analysis are blundered, then the ultimate conclusions are not scientifically reliable.

Should we discourage jurors from favoring science-based evidence over circumstantial evidence or questionable eyewitness testimony? Absolutely not. But we should be concerned about the pendulum swinging too far towards unquestioning acceptance of people with degrees and lab coats and published papers. Scientists are no more entitled than law enforcement to our uncritical belief. Junk science, and the powerful temptation to use it to do something, anything, about crime, is always with us. Confronting it will require properly trained and funded defense attorneys and rationally skeptical jurors. The alternative is more innocent people convicted based on the modern equivalent of dowsing and phrenology.

My Proposed Therapy for Dr. George Rekers Involves Not GlaxoSmithKline But Smith & Wesson

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Remember the unspeakably evil Dr. George Rekers, simultaneous critic of gays and customer of rent boys, who conducted a hideous experiment too see if psychological torture would eradicate "feminine" behavior from a little boy?

CNN is running a three-party story about the experiment. The little boy, Kirk Andrew Murphy, committed suicide at age 38 in 2003. His siblings are now telling his painfully sad and chilling story. This is not a happy link. It will depress and infuriate you.

Rekers is unrepentant.

"I only meant to help, do the best I could with the parents, and I've written articles you can look up, too, on the rationale for our treatment. And the rationale was positive; to help children, help the parents who come to us in their distress asking questions, 'What can we do to help our child be better adjusted?' " Rekers said.

What could they do? Rekers told them to beat the kid if he acted girly.

According to Rekers' case study, blue chips were given for masculine behavior and would bring rewards, such as candy. But the red chips, given for effeminate behavior, resulted in "physical punishment by spanking from the father."

By the way, Rekers' "research" is still cited by anti-gay groups for the proposition that one can "cure" people of being gay. Do you suppose they know what Rekers did to produce the "data"? Do you suppose they care?

If It Walks Like A Duck, And Censors Like A Duck . . .

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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.

A Man's Home Is His Castle — So Long As It's Analog

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Imagine that you lived in a world where a crazy neighbor could steal thousands of dollars from you. Imagine that you might, if you were lucky, limit the amount of money your crazy neighbor could steal — maybe limit it to thousands or tens of thousands rather than hundreds of thousands — but ultimately you couldn't stop it all, because the law viewed it as your crazy neighbor's right to steal from you, and your duty as a citizen to live with it.

Guess what, my friend — you do live in that world right now.

We've joked before about the lunatics who think that wi-fi signals impair their health and interfere with their Druidic rituals, despite an utter lack of scientific evidence to support their claims. When people are just pestering their local city council or school board, who probably deserve it, their lunacy is funny.

But when their lunacy takes the form of lawsuits, which costs their victims money and peace of mind in their home, it's not so funny.

We've already blogged about Arthur Fristenberg, who has previously found wi-fi junk science to be an excellent route to lots of attention. Now he's sued a young neighbor, and sought a preliminary injunction against her, for the tort of scrambling his brain with her awful wi-fi signals.

But last October, when a friend of his rented a house on the next block that backed up to Firstenberg's property, the familiar waves of nausea, vertigo, body aches, dizziness, heart arrhythmia and insomnia returned — all, he says, because she was using an iPhone, a laptop computer, a wireless router and dimmer switches.

Firstenberg, 59, wanted Raphaela Monribot to limit her use of the devices. "I asked her to work with me," he said. "Basically, she refused."

So he sued Monribot in state district court, seeking $530,000 in damages and an injunction to force her to turn off the electronics.

There's no science to support it. But you can hire a "doctor" to say anything:

Dr. Erica Elliott, who treated Firstenberg and testified at a hearing on a preliminary injunction, said she signed the wireless petition because she's convinced electromagnetic hypersensitivity is a real disorder that may affect the nervous system.

Mainstream scientists object to the notion that microwaves and radio waves emitted by consumer electronics could cause the reported health problems.

Oh, you "mainstream scientists" and your peer review and facts and scientific method. What do you know about how people feel about science? Thank goodness for people like Dr. Erica Elliott:

Dr. Elliott has been referred to affectionately as the "Health Detective," drawing from a wide range of disciplines, both mainstream and alternative, in order to diagnose and treat chronic illness.

No word on whether Dr. Elliot will offer expert testimony on your behalf if the CIA is beaming bad thoughts into your head, but I'm sure it won't hurt to ask.

Hopefully the judge here will do the right thing and, under New Mexico's equivalent of Daubert, throw the case out.

But even if the judge does so promptly, Raphaela Monribot will be out the thousands or tens of thousands of dollars it took to defend herself. She'll have suffered the stress of having a crazy neighbor use the court system to inflict his delusions upon her. She'll suffer that because she has the misfortune of living near a nutcase, and living in the same community as snake-oil salesman Dr. Elliott, who is willing to testify under oath conflating belief with science. She'll suffer it because our system offers very little disincentive to people like Fristenberg and Elliott to do it. Yes, Monribot could sue for malicious prosecution. That would be uncertain, expensive, and time-consuming.

In a more just system, when the judge dismisses this junk-science case, he or she would have the power to order Fristenberg, his lawyer, and his "expert" Dr. Elliott to pay Monribot's full attorney fees. And if they don't pay immediately? Well, Fristenberg has a house — and that's what court-ordered public auctions are for.

Christopher Maloney Is A Quack. [edit] But Maybe Not Censorious.

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"Dr." Christopher Maloney, meet Barbara Streisand. Yes, as in the "Streisand Effect." Babs, meet Chris. Charmed.

Who is Christopher Maloney? Well, the State of Maine allows him to call himself a doctor. But he's actually a naturopath. Which is why he gives advice like this:

Parents waiting for vaccinations can provide their children with black elderberry, which blocks the H1N1 virus.

My father smells of elderberries, and he's never had H1N1, so I think this is true.

Anyway, some haters and devotees of soulless "science" think that naturopathy is junk science. One such hater is a guy named Michael Hawkins, a student who wrote a letter to the editor in response to "Dr." Maloney and blogged about him. You could read the blog yourself. Except WordPress yanked his blog because "Dr." Maloney complained about it. [Edit: in the updates, someone else takes credit for doing this.]


1. Increasingly, one of the most prominent attributes of junk-science peddlers is that they are aggressively censorious. Junk scientists sue, subpoena, and suppress because they can't refute. [Edit: this point remains, as the person now taking credit for getting the blog pulled is definitely a junk-science fellow traveler.]

2. This blog uses WordPress software, but thankfully is not hosted on WordPress, which apparently either (1) has an extremely unreliable system for determining which posts should be pulled down, or (2) is run by spineless shitweasels.

3. Hat tip on this post to PZ Myers. He is unable to address anything related to religion without sounding like a preening, self-satisfied taint, and his angry obsession with marginalizing the morals, intellect, and social worth of people like me is just precious, like a very angry toddler with a lisp. But he would never, never try to have this blog shut down for saying so.

Edited on February 18, 2010: Someone purporting to be Christopher Maloney appears in the comments to respond (well, technically, he's responding to PZ Myers, but it's applicable here.) He (1) defends his assertion about elderberries, and (2) claims he did not seek to have the blog censored. Read it and draw your own conclusions about someone who thinks that being criticized on the internet is like the Salem witch trials.

Further edit: this is an interesting discussion of why Mr. Maloney's assertions lack adequate scientific basis, to which Mr. Maloney responds with the same spammed comment.

Further edit: An entirely different and more nutty quack — a guy who thinks that cancer is primarily caused by self-esteem issues — says that it is he, not Maloney, who got Hawkins' blog pulled. To the extent that Maloney is merely a quack and not a censorious one, I apologize to him. However, he's a twit for comparing being criticized on the internet to being persecuted in the witch trials.

i can haz hypnotherapy credentialz?

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Certain people are impressed by the credentials issued by professional organizations like state bars, medical boards, and other professional licensing boards. By "certain people," I mean "people not particularly familiar with how professional credentialing agencies work." Certainly professional credentialing agencies do some good. They occasionally manage to kick the most egregious wrongdoers out of their respective professions, and they enact standards of practice that are not entirely lobbyist-written and that are sometimes even enforced. For the most part, though, they are guilds, formed and operated to perpetuate themselves and to squelch competition. That's why state bars (for instance) devote a disproportionate amount of their time and resources going after a few schlubs who try to practice law without a license.

Yet people tend to look at a certificate from a fancy-sounding professional organization and conclude that (1) the service that this person is offering me must be worthwhile, because it is backed by a licensing organization, and (2) this person must really be qualified. Add to that our susceptibility to junk science, and you've got a potent marketing tool for snake-oil salesmen.

Trust someone just because they have a professional license? You might as well trust the cat.

And here I mean that quite literally.

BBC journalist Chris Jackson decided to investigate the various entities that offer credentials to "hypnotherapists." Oh, he didn't apply himself. That would be silly and embarrassing. He applied in the name of his cat, George.

In the UK, George was registered with the British Board of Neuro Linguistic Programming (BBNLP), the United Fellowship of Hypnotherapists (UFH) and the Professional Hypnotherapy Practitioner Association (PHPA).

In fact, believe it or not, George was not technically eligible to be a hypnotherapist under the regulations promulgated by any of these entities. For one thing, he has not been spayed. And he's a cat.

The entities have said they are sorry, and it won't happen again:

A PHPA spokesman said the organisation makes great effort to ensure every applicant is a fully-qualified hypnotherapist.

Well, that explanation is a bit regrettable. What great effort did they make here? I can see the examination report now. "Cons: tends to lick own anus, is a cat. Pros: v. mesmerizing eyes and purr, good manner with patients."

By the way, Chris Jackson and George are not breaking new ground here. Dr. Steve Eichel did the same thing nearly 20 years ago in America with Dr. Zoe D. Katze, Ph.D., C.Ht., DAPA:

Dr. Katze's credentials look impressive. She is certified by three major hypnotherapy associations, having met their "strict training requirements" and having had her background thoroughly reviewed. She holds a Diplomate in psychotherapy from an association that claims to promote the highest standards among psychotherapists.

Zoe the Cat's qualifications appeared so impressive that she was eventually solicited to write a journal article.

Dr. Eichel's thoughts about credentialing as a business are well worth reading. And the tales of George and Zoe illustrate the peril of relying on credentials. There are people out there who make money by credentialing people. They make money credentialing people whether or not the people are qualified to do the work they are credentialed for, and whether or not the thing they are credentialed for has any worth to consumers. Caveat emptor. When you are considering paying for a service, there's no excuse for not Googling the service-provider's credentials, and for exploring whether the service is genuine or junk science to begin with.

If you don't, don't blame us when you shell out $150 per hour to be stared at by a cat.