The blog Addiction Myth is devoted to a very out-of-the-mainstream proposition about medicine: that the entire concept of drug and alcohol addiction is a scam perpetrated by law enforcement, rehab groups, and the entertainment industry. By contrast, the United States Department of Health and Human Services is devoted to mainstream medical and scientific propositions1 It is perhaps inevitable that these two worldviews would conflict one day.
But it was not inevitable that HHS's Office of General Counsel would bumptiously threaten Addiction Myth over obviously satirical posts. That, given minimal good sense, could have been avoided.
Addiction Myth attracted the ire of government attorneys with two posts. In "A Conversation with Addiction Guru Aaron White, PhD," the site offered a satirical "interview" with a prominent scientist in the field of addiction research who works with the National Institute on Alcohol Abuse and Alcoholism. The satire is broad and rather obvious and promotes the site's view that the concept of addiction is a scam:
AM: According to your research, blackouts occur not just in middle age alcoholics, but in young college students who may not have built up much tolerance for alcohol. Their drinking often ended up in unprotected sex, vandalism, and fights, of which they had no memory until cued by a friend. What was their response to their memory? Regret? Horror? Delight? Glee? A little of each?
AW: I wasn’t the author of the research. But I would say a little of each, at least based on my own experience. I suspect they remembered more than they wanted to admit. Though one time I got really drunk at a party and my friend told me that I was talking to his sister in French, and I had absolutely no recollection of that. It was surprising to me as a brain scientist because alcohol has been shown to suppress activation of the inferior frontal region (Broca’s area also known as the ‘language center’). I probably shouldn’t have been able to talk at all, let alone French, given my BAC. But what was really weird was that I don’t even know French!
In the second post, "Cease and Desist!", Addiction Myth offered a satirical demand letter from the Director of the NIAAA. Again, the joke is not particularly subtle:
I pray to the god of my understanding to remove your character defects. Seriously, get help.
It takes a bold attorney to write a cease-and-desist letter complaining about a clearly satirical cease-and-desist letter. Dale D. Berkley, Senior Attorney with the United States Department of Health and Human Services, Public Health Division, Office of General Counsel, is just the man for the job. Yesterday he sent a to-the-best-of-government-abilities threatening letter to Addiction Myth about the two satirical blog posts.
Berkley — who signs his letter "Dale D. Berkley, Ph.D., J.D."2 — begins by pre-refuting his own point:
Of course Dr. White did not in fact participate in the interview and Dr. Koob did not write the letter attributed to him.
When the target of satire complains that it is defamatory, the relevant question is whether the satire can reasonably be taken as a statement of fact about its subject. Dr. Berkley, by saying that "of course" the satirical articles do not reflect the actual words of the subjects, has just proclaimed that the satire he is complaining about cannot be taken as a statement of fact.
You paid taxes for that.
We are concerned that, especially with respect to the mock interview, the public could be deceived and misled into believing that Dr. White in fact contributed to the interview. Those items are defamatory, and expose you to potential liability.
This is, of course, lawless idiocy. Back in November I discussed the case Farah v. Esquire Magazine, in which the D.C. Circuit rejected a defamation suit by WorldNetDaily lunatic Joseph Farah against Esquire Magazine based on a satirical post. In the decision the Court reviewed four crucial ways the First Amendment protects satire: (1) satire can only be defamatory if it can reasonably be understood as stating or implying actual facts about its subject, (2) in making that determination, courts look at the context of the satire, meaning that they examine publication as a whole in the sense which it would be understood by its intended audience familiar with the publication, (3) the fact that the occasional dupe will take satire seriously does not deprive it of First Amendment protection, and (4) satire need not include a satire disclaimer.
Under those standards — which are neither obscure nor difficult to understand — the HHS threat is patently frivolous. First, the Addiction Myth satire posts are replete with signs of satire. Second, the satire is aimed at Addiction Myth's own audience, and occurs in the context of Addiction Myth's series of vigorous attacks on addiction science. Any reasonable person who spends even a minimal amount of time on Addiction Myth will understand the context and see that the posts must be satirical. Third, the fact that some hypothetical member of the public could be deceived is not the issue; the question is what a reasonable person familiar with the context would believe.
We therefore request that you either remove the articles from your website, or provide a prominent disclaimer indicating that Dr. White and Dr. Koob did not participate in the interview or write the letter.
This demand raises a series of questions.
1. Who is "we?" Does HHS Office of General Counsel purport to represent these doctors for purposes of defamation threats? Is that allowed? Or does HHS purport to have a right to forbid defamation of doctors associated with it? From whence does that right spring?
2. Did Dr. Berkley know the relevant law when he sent this letter? That is, did he, a government attorney, knowingly make an utterly specious legal threat in order to chill protected speech? Or did he send the threat on government letterhead from a government agency without even minimally acquainting himself with the relevant law governing First Amendment protections of satire? Which would be more appalling?
3. Dr. Dr. Berkley, or any other attorney with the HHS Office of Legal counsel, tell the hapless targets of this satire that the natural and probable consequence of this threat letter was to increase the attention given to the satire by orders of magnitude? Did the doctors know this letter was being sent out, and consent to it based on competent legal advice?
Inquiring minds who recently paid taxes would like to know.
I've sent an email, crafted with the decorum and courtesy for which I am known, to Dr. Berkley seeking comment on these issues. I'll let you know if I hear back. I've also offered the proprietor of the web site my assistance in finding counsel if necessary.
Last 5 posts by Ken White
- In Space, No One Can Hear You Threaten Lawsuits - October 4th, 2015
- Down With Peeple - October 1st, 2015
- Ninth Circuit Imposes (Some) Limits On Cops Yanking Things Out of Your Ass - September 30th, 2015
- Arthur Chu Would Like To Make Lawyers Richer and You Quieter and Poorer - September 29th, 2015
- In Roca Labs Case, FTC Takes Novel Stand Against Non-Disparagement Clauses - September 29th, 2015