You remember Marc Stephens. I first wrote about his threats to critics of the Burzynski Clinic here. He wrote a very odd and threatening email, to which I responded here. I detailed a lengthy and tiresome correspondence with him here. Hitler reacted to is disaffiliation with the Burzynski Clinic here. And so on.
Yesterday, out of the blue, Marc sent me another email:
I see you are still obsessed…5 articles per month about me? Anyway, its been brought to my attention that you have multiple articles published on your website/blog stating false accusations about me. I am requesting that you immediately retract your false statements, or completely shutdown those articles.
In each article, mentioned below, you are stating that I am a liar, fraud, a twit, crazy, a con artist, impersonating/posing as an attorney, a thug, a criminal, threatening teens, bumptious & fake, and freakishly ignorant about fundamental issues of American Law. I also expect you to post a public apology.
The articles in question are as follow:
“Junk Science and Marketeers and Legal Threats, Oh My!”
“Tell Me About The Rabbit, Marc Stephens”
“Reason’s Superlative Prison Issue and a Note about Anonymity”
“Pro Bono Victory in a Junk-Science SLAPP Suit against a Science Blogger”
“My Marc Stephens Update, Or, Mr. Snarky Numbered Lists Visits Crazytown”
“Marc Stephens’ Downfall”
Vote for Popehat’s “Censorious Asshat of the Year”
“Andrew Wakefield Sues BMJ and Brian Deer: Time To Test Out the New Texas Anti-SLAPP Statute”
“Chris McGrath v. Vaughan Jones: An Unpleasant Peek into U.K. Libel Law”,
“Rhys Morgan's Experience Illustrates Importance of Protecting Student Speech”
Note, in reading Marc's list, that he thinks that posts that merely mention him in passing are "about" him. Second, note the "it has been brought to my attention" language. This language is characteristic of people who either (1) like to use lawyer-letter-sounding language that has no actual meaning, and/or (2) people who like to imply that they have minions, or allies, or staff, or something. Marc's been reading for a long time, so clearly he brought it to his own attention. Also, note that Marc does not specify how any statement I made was false, and does not understand the legally significant difference between statements of opinion and provably true or false statements of fact.
Dear Mr. Stephens:
I note that you still have not answered the question I have asked again and again: are you, in fact, an attorney? Was the Burzynski Clinic ever your client in your capacity as an attorney?
You have identified a series of characterizations. Many of them (twit, crazy, thug, bumptious, freakishly ignorant about fundamental issues of American law) are statements of pure opinion, and thus absolutely privileged under the First Amendment. Others might — might — be taken as statements of opinion based on facts (liar, fraud, con artist, impersonating/posing as an attorney, criminal, threatening teens, fake). Yet I have described, or linked to posts describing, the adequate (in fact, compelling) factual basis for each of those statements. For instance, your emails to Rhys Morgan — a teen — are inarguably threatening, even leaving aside the one where you included a Google picture. The emails where you imply that you are a lawyer are many and clear, and any reasonable person reading them would agree they suggest you are in fact an attorney. (If you would like to answer my question, and demonstrate that you ARE an attorney, I will be pleased to make that correction throughout).
If you would like to provide me with specific facts establishing that specific factual statements I have made were incorrect, I would be happy to review them carefully, and will make any appropriate corrections. But I will not be changing my commentary about you based upon vague and unsupported claims that complain about my protected opinions.
Please feel free to supplement your request.
This did not satisfy Marc.
I am fully aware of your many insulting statements of opinion. It is your way of retaliating, and a clear attempt to damage my reputation, which you’ve already admitted. If you are so sure of your so-called “compelling facts”, then why are you asking me if I’m an attorney or not? Do you doubt your so-called facts..? I, and any reasonable person, would say that is kind of reckless. It is very clear your statements are based on fabrication, not facts. Also, assumptions are not facts. Because of your hatred and ill will towards me, which you have admitted, within two months you have written ten articles about me which contain multiple false statements.
Please keep in mind that you are a Blogger, not a journalist. In addition, you do not represent any party of the matter. So I have no obligation to communicate, or disclose my contractual relationships with an anonymous “Blogger” named Popehat.. and the photo image of your account profile is that of a 5 year old kid.
Please provide me with your compelling facts which prove that I am a liar, fraud, a twit, crazy, a con artist, impersonating/posing as an attorney, a thug, a criminal, threatening teens, bumptious & fake, and freakishly ignorant about fundamental issues of American Law. Again, I request for you to remove the articles, or retract your false statements.
Note that Marc is still refusing to answer the simple question of whether he is an attorney or not. That question is central to all of my posts about him, and I asked repeatedly during my correspondence with him, and he would never give a straight answer. Why not, do you suppose?
Here's my reply:
That's not the way it works. You claim my posts have factual statements that are not correct. If you cite specific factual statements you believe to be untrue, and provide specific facts supporting your claim, I will review them carefully and, if warranted, make a correction. But I will not make changes based on insinuations or bluster.
Your continued evasive behavior speaks for itself.
This just made him angrier. But for the first time, he seemed to imply — without saying — that he's not a lawyer, suggesting that he didn't NEED to be to do the things he was doing:
I clearly specified each false statement you have made in your multiple articles. All of the statements about me in your articles consist of false and libelous statements. It is completely irrelevant whether or not someone is a licensed attorney/lawyer because anyone can forward a cease and desist letter on behalf of a client. Based on this fact, it would not make someone a liar, a fraud, a twit, crazy, a con artist, impersonating a lawyer, posing as an attorney, a thug, a criminal, threatening teens, bumptious & fake, and freakishly ignorant about fundamental issues of American Law.
Your theories and personal interpretations are not facts. Your false statements in each article are written as assertions of facts, not opinions. Please retract your false and defamatory statements to project your “Opinion”. You of all people should know that defamatory statements, a tort, are not protected by the First Amendment.
Note the continued level of evasiveness, coyness, and refusal to offer specific facts rebutting facts that I have offered. This is my final response to him to date:
With each communication, you merely supply more evidence in support of everything I have been saying about you.
First of all, by just picking out a few words and phrases, you are not citing facts establishing why specific factual assertions are incorrect. Just as an example: on what factual basis do you deny that you threatened a teen? Are you saying that you did not send the widely publicized emails to Rhys Morgan? Or are you claiming those emails are not threats? Similarly, with respect to posing as an attorney: are you claiming that you ARE in fact an attorney, or that you did not pretend to be one? This most recent email suggests — rather coyly — the latter interpretation, but since you've refused to address the issue for so long, it's not particularly clear.
If you provided specific facts explaining why you think that specific factual statements I made were wrong, I could engage them. For instance, let's take this latest email. You seem to imply — without coming out and saying — that you are not an attorney, but never posed as one, because just sending cease and desist letters on behalf of a client does not make someone an attorney. To that I would respond that I have read many communications apparently from you that either state explicitly that you are an attorney ("I am an attorney if that helps you sleep at night" [http://whitecoatunderground.com/2011/12/01/when-did-the-burzynski-clinic-start-harassing-bloggers/]) to ones where you imply that you are an attorney ("So, when I present to the juror that my client and his cancer treatment has went up against 5 Grand Juries which involved the Food and Drug Administration (FDA), the National Cancer Institute (NCI), Aetna Life Insurance, Emprise, Inc., Texas State Medical Board, and the United States Government, and was found not guilty in all 5 cases, you will wish you never wrote your article." [ http://scienceblogs.com/insolence/2011/11/a_pr_flack_from_the_burzynski_clinic_thr.php ]) ("Once I obtain a subpoena for your personal information, I will not settle this case with you." [ http://www.quackometer.net/blog/2011/11/the-burzynski-clinic-threatens-my-family.html ]) ("I suggest you remove ALL references about my client on the internet in its entirety, and any other defamatory statement about my client immediately, or I will file suit against you" [http://rhysmorgan.co/2011/11/threats-from-the-burzynski-clinic/]). Marc, since you claim that you are not, in fact, "freakishly ignorant about fundamental issues of American Law [sic]", you know that a non-lawyer might represent himself in court, but cannot represent an entity, and generally cannot represent another person. Therefore, the only way you could be making a presentation to a juror about the Burzynski clinic, or obtaining a subpoena for the Burzynski clinic, or filing suit on behalf of the Burzynski clinic, would be if you were a lawyer. This leads to the ineluctable conclusion that (1) you are an attorney, and just won't confirm it one way or the other no matter how many times you are asked, (2) you are not an attorney, but deliberately posed as one, or (3) you are not an attorney, but are so ignorant of fundamental concepts of American law that you did not realize that you were saying things implying to any reasonable audience that you are an attorney. (Note that this last interpretation is difficult to reconcile with your statement "I am an attorney if that helps you sleep at night." Maybe you were . . . confused?)
Moreover, your selection of words to attack suggests that you do not understand the difference between constitutionally protected statements of opinion and statements of fact. As one California court summarized:
"To state a libel claim which is not defeated by the freedom of speech protections of the First Amendment, Ferlauto must allege a statement that is provably false. (Milkovich v. Lorain Journal Co., supra, 497 U.S. at p. 20, 110 S.Ct. 2695.) Statements do not imply a provably false factual assertion and thus cannot form the basis of a defamation action if they cannot “ ‘reasonably [be] interpreted as stating actual facts' about an individual.” (Ibid., citing Hustler Magazine v. Falwell (1988) 485 U.S. 46, 50, 108 S.Ct. 876, 99 L.Ed.2d 41.) Thus, “rhetorical hyperbole,” “vigorous epithet [s],” “lusty and imaginative expression[s] of [ ] contempt,” and language used “in a loose, figurative sense” have all been accorded constitutional protection. (Greenbelt Pub. Assn. v. Bresler (1970) 398 U.S. 6, 14, 90 S.Ct. 1537, 26 L.Ed.2d 6; Letter Carriers v. Austin (1974) 418 U.S. 264, 284, 286, 94 S.Ct. 2770, 41 L.Ed.2d 745.)"
Ferlauto v. Hamsher (1999) 74 Cal.App.4th 1394, 1401, 88 Cal.Rptr.2d 843, 849
Words like "twit" and "bumptious" and "thug" clearly fall within the category of statements that do not imply a provably false factual assertion, but constitute figurative language. Someone not freakishly ignorant of fundamental concepts of American law might or might not know that already. As to the rest, based in part on the citations above to your statements claiming to be a lawyer and directly implying you are a lawyer, and based on the correspondence by you to me and to others, I believe that any of my statements which imply fact are, in fact, firmly grounded in the adequate evidence of your own words. If you believe I am incorrect, I remain willing to review, carefully, any evidence or factual explanation you wish to provide that shows that any of my facts are false. If I determine that any of my facts are incorrect, I will make an appropriate correction. If, for instance, you would like to state that you are not an attorney and that your statement "I am an attorney if that helps you sleep at night" was not intended to be taken at face value and that you did not realize that you were implying that you were an attorney by saying you would file suit and argue to jurors and obtain subpoenas, then I would be happy to make that correction to all of my relevant posts, and let readers draw their own conclusions.
Finally, if you are (as your latest email suggests) contemplating a defamation action, I suggest that you research personal jurisdiction, anti-SLAPP statutes, and debtor exams.
If you do decide to provide more information, please cite where in the specific posts you find the allegedly false statements, as I believe you are misconstruing language in several cases.
We'll see what happens from there.
I am always willing to review evidence suggesting I have made a claim that is factually incorrect, and make a correction if warranted. However, I believe these emails to be part of a campaign of feckless intimidation.
Edit: Is that last email chopping off on the right for people? I've had one complaint.
UPDATE: He responded:
Those cases are irrelevant…you are relying on hearsay, and your actions are negligent. Enjoy your weekend.
I don't think Marc Stephens understands what "hearsay" or "negligent" means. Note that he does not say "I didn't send those emails; they are fake!" He does not say "they altered what I said!" No, he says (as I understand it) that is is "irrelevant," in discussing whether I have a factual basis to say he has been posing as an attorney, to cite emails to other people in which he has posed as an attorney. Note, also, the learned-it-from-watching-law-and-order-reruns use of "hearsay." Hearsay is an out-of-court statement offered to prove the truth of the matter asserted — in court. It has nothing to do with whether, in the course of exercising my constitutional right to free expression, I have sufficient facts to support a belief that a proposition is true. Only someone freakishly ignorant of fundamental principles of American law would say otherwise.
Edited again on February 6, 2011 And he wrote back yet again:
I am trying to resolve this matter with you professionally. Yet, you continue with the insults and name calling in your articles. As I mentioned, the information below, as well as the cases, are irrelevant. Now you want me to say, “I didn’t write it”? Hilarious, read your first emails back in November. You are relying on another blogger’s info for your so-called facts. It will amount to hearsay unless that person testifies in court. Some of your statements are Rhetorical Hyperbole, others are mentioned as fact, “compelling facts” per popehat. But as you know its all based on context.
I am very well aware of Jurisdiction Ken. [lengthy discussion of my contact information and ties to Los Angeles redacted.] Do I reside in the beautiful state of California, County of Los Angeles..? We will see.
You have to state your case. Then I will present the real facts. You will not be granted a slapp even if you were a California pimp.
Ken, Is Marc Stephens a licensed attorney, or lawyer? Yes or No?
So far your investigation is based on hearsay, misinformation, lack of knowledge, lies, and people inside your network. So please stop telling the public that I am a criminal, etc. You are being extremely negligent. Hey, I will check back in a few weeks for the retraction or deletion. Hopefully by then you will stop using your son’s pic as your profile image. Come get some sun light and stop hiding. I also noticed a few weeks ago you guys shut down meetings, articles, websites, abandoned your first amendment rights and ran like hell when the Muslims came after you Skeptics. Hilarious.
To which I replied:
I take all of that as a statement you will be suing me in California. See you in court, then.
I note that you still refuse to provide facts or evidence explaining what I supposedly got wrong.
If you provide facts and evidence — instead of threats and bluster — I am still very happy to evaluate them and, if appropriate, make any warranted correction.
California has a very robust anti-SLAPP statute which I have used successfully before. I look forward to using it against Marc if he sues here.
Marc's grasp of law continues to be comical — assuming that he's not straight-up trolling. He seems to think that "hearsay" is a rule that means that, in writing about something, I can't rely upon what other people have written, unless I call them as witnesses first or something. He also seems to think that in order to prevail on an anti-SLAPP motion I would have to call as witnesses the array of bloggers I linked and quoted and relied upon. This, of course, is ridiculous. All I would have to do to prevail on an anti-SLAPP motion is to submit a declaration attaching the blog posts I read and linked and relied upon, and then attack the history of correspondence with Marc, which corroborates everything I have written.
Note that Marc still refuses to explain exactly how or why I am wrong about anything. That's characteristic of bogus legal threats. I was quite sincere in my message to him, which I have sent over and over and over: if he specifies a fact that he thinks I got wrong, and explains why he thinks it is wrong, I will review his facts and evidence carefully and, if warranted, make a correction. But I think his trolling, bullying approach requires him to be coy and mysterious.
Marc also seems obsessed with the notion that I have called him "a criminal." I've reviewed my posts, and I don't believe I ever used that term. I did say — accurately — that practicing law without a license is a crime in some jurisdictions, including California. I believe it is revealing that Marc refuses, no matter how many times he is asked, to say whether or not he is a licensed attorney in any jurisdiction. Marc seems to think that because I cannot prove that he is not a licensed attorney in some jurisdiction somewhere (though he is clearly not, at least under the name he is using, in California), then I must be committing defamation in making my observations about him. Such bizarre semantic games are typical of the deranged, but will find no traction in court. If some law school DID permit him to graduate, that school ought to face an angry mob with torches and pitchforks.
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