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

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.

Not everybody is a fan. For instance, Dr. David Gorski critiqued Dr. Arguello's theories and approaches on his website Science-Based Medicine, which he uses to call out and debunk junk science:

Contrary to what Davies, Lineweaver, and Arguello seem to think, the reason the atavistic hypothesis of cancer hasn’t caught on is because it’s a hypothesis that is not new and has been considered and found wanting from a standpoint of biology and evolution. Unfortunately, it is a hypothesis that is easily co-opted for quackery, as Arguello has done.

I was going to quote more but it had big science words and I got tired.

Anyway, Dr. Arguello will not stand for someone disagreeing with him about science. In a rather bizarre exchange of emails, Dr. Arguello eventually resorted to threats and legal analysis that are at least as innovative as his cancer theories.

His last email begins like this:

For historical reasons, I have been replying in detail and respectfully to your defamatory statements in your original piece posted in your website. I really find it difficult to discuss the science and treatment of cancer with you, because I believe you do not understand the biology of cancer, but also you have the mentality of those inside the box. You never think outside the box, and cannot conceive concepts that are outside the box, and therefore alien to you.

Note: whenever a client asks me to "think outside the box" for a solution to his or her problem, I get a stabbing pain behind my right eye, because it's a null-content phrase. Innovation is one thing; stubborn denial of reality is another.

After a discussion of clinical trials, Dr. Arguello gets down to the meat of the matter:

(3) Defamation (Slander and Libel): If you express your scientific or vernacular opinions on DCA, marijuana, ketogenic diets, the ugliness of frogs at night, the existence of ghosts, etc., there are no legal consequences for that in the country in which I am a citizen (USA), and the countries you specifically mentioned in your internet piece (Canada and Mexico).

This is not a promising start.

But when you name a person, a business, a product, brand, a service, etc., you are entering a new terrain protected by laws in each country, and international laws. Although some journalists may be immune to them, because of lawful reasons, you are not. If your comments are made publicly (verbally or written), for example, that Justin Bieber is selfish and rude, and he should go back to Canada, there may be no consequence for that either. But if you express publicly (verbally or written) that Justin Bieber does not sing, but howls, and he should not be hired to sing at any event, then you will pay the consequences of that. Whether you are right or not about his singing, that is your personal opinion. You are potentially ruining his career, reputation, credibility, work, and the financial compensation of his work as a singer. In the case of Bieber, that could cost you millions for libel/defamation for damages in his countries of work.

Maybe prehistoric single-celled organisms had defamation laws like this, but we don't. It's gibberish. First, journalists are not "immune" to laws "because of lawful reasons." To the extent that Dr. Arguello means to suggest that Dr. Gorski's writing enjoys less legal protection because he does not own a card that says "journalist," he's wrong, as the Crystal Cox case recently illustrated. Also, Dr. Arguello's asserted distinction between criticizing Justin Bieber and urging others not to listen to Justin Bieber is entirely fabricated. There is no such distinction. Both are protected expressions of opinion.

When you publicly state in an international venue, such as the internet, that “Dr. Arguello’s treatment is dubious and it should be avoided,” that will cost you, too. Perhaps not millions as in the case of Bieber, but enough to compensate me for the potential damage caused to my practice now and in the future not only regarding my ability to make money, but for exposing me to hatred, contempt and ridicule.

Well, no. Dr. Gorski's critiques are classic statements of opinion based on disclosed facts. He quotes from Dr. Arguello's writings and then explains — with links, references to scientific principles, and examples — why he thinks Dr. Arguello is wrong. He doesn't imply that his opinion is based on any undisclosed (and potentially false) facts. The First Amendment absolutely protects such commentary. But purveyors of "outside the box" science occasionally must be reminded of that — like, for instance, the naturopath who had to be taught that people have the right to call him a quack.

Now, because you dislike Justin Bieber, you are not free to slander and advocate that he should not be hired. In the USA, Canada and Mexico we have “defamatory libel” and “blasphemous/malicious libel.”

No we don't. Libel is a subset of defamation. And there is no category called "blasphemous/malicious libel." And yes, you do have the right to urge against anyone hiring Justin Bieber. Watch. DON'T HIRE JUSTIN BIEBER. Nobody's going to sue me, with the possible exception of delusional street people who think they are Justin Bieber, because I'm allowed to say that.

In Canada, both are crimes punishable by a maximum term of two years in prison. In the specific case of a “libel known to be false,” the prison term increases to a maximum of five years.

Given what I know about Canada's loathsome approach to free expression, this would not surprise me, but I suspect it is overstated.

I had a short conversation with my lawyer concerning this matter, and it appears that you have been crossing the line and targeting people by name. I am wondering if I should join forces with others as a class suit, or do it alone. The question is how much can we get from you and your cronies?

Is your lawyer a Weimaraner? Because anyone who gave you that legal advice spent most of law school licking his balls.

Please do not say that I am threatening you with legal action. I am not threatening; I am telling you what I am going to do.

I really didn't think people uttered the "that's not a threat, that's a promise" thing any more. I thought it was a staple of 1980s action movies, uttered by Stallone and his ilk. Is this an Expendables promotion?

P.S. I know that these e-mails will become public someday, from there that I have not been using my French on you. Suffice to say that I am fluent in French when someone interferes, for no reason, in this important work. This is aside of slandering me.

You know, if you told me, "Ken, you're going to see a threatening communication, and the scariest and most credible part of it will be when the writer implies he may start speaking French," I would have called you a looney. The world never ceases to surprise me.

I'm a blogger, not a doctor, dammit. I'm not qualified to give a detailed critique of the atavistic theory of oncology. But I will say this: Dr. Arguello's theories of defamation are buffoonish and have no basis in law or reality. Free speech law isn't rocket science. I practice it, for God's sake. Dr. Arguello's threat shows a mind that has not grasped anything useful about the subject and that clearly has not attempted to educate itself. I would not go to a doctor like that.

Should Dr. Arguello attempt to carry out his threat, he will encounter difficulties. It would be futile for him to sue in another country: under the SPEECH Act, American courts will not enforce foreign defamation judgments unless they are secured using laws as speech-protective as ours. If he sues here, he will be stomped like a cockroach, and depending upon the jurisdiction, possibly sanctioned or otherwise ordered to pay attorney fees. I will not hesitate to light the Popehat Signal to get help for Dr. Gorski, as I have before when angry purveyors of questionable "science" have sued critics.

I continue to wonder, though, why purveyors of junk science are so enthusiastic about legal threats.

Edited to add: Dr. Arguello has now sent rambling and threatening emails to Dr. Gorski's place of work, implying he will sue them as well. The update is on Dr. Gorski's post:

Days later, Dr. Gorski posted online a number of defamatory statements about me, the atavistic nature of cancer cells which has been published by others before, and my treatment approach.

. . . .

I have contacted a law firm in Ohio which specializes in libel and slander via the internet. I just wanted to let you know that since he uses his affiliation with Wayne School of Medicine to boost his credibility, you could be also named in that suit. I perfectly understand that you do not support or review his writing on his website, but it is impossible for a lawyer not to see the direct connection between his defamatory work on that website and you in the same line of work.

So now it is possible to defame concepts, like the "atavistic nature of cancer cells." I wonder if the concept "land war in Asia" has a lawyer yet. Can anyone introduce me?

Second Update: Dr. Arguello has sent a further threatening email to Dr. Gorksi, set forth in the fifth update to this post. The last sentence of the email captures Dr. Arguello's legal ignorance and needy hubris:

If you want to talk about that subject of atavistic oncology, submit your paper to a peer-review medical journal.

What an arrogant, censorious, disturbed punk. Who would let themselves be treated by such a person?

Last 5 posts by Ken White

Comments

  1. Doctor X says

    Well, laugh all you want at PROGRESS–note the use of allcaps! You have no defense to it!–Ken but do you know what ELSE protozoa and bacteria do NOT suffer from?

    1. Male pattern hair loss!
    2. Polio!
    3. Chronic fatigue syndrome!
    4. Unexplained weight loss!
    5. Fatal Familial Insomnia!
    6. Jock itch!
    7. Dyspareunia!
    8. Menstrual cramps!
    9. Cleveland!

    Perhaps if you spent less time DENEGRATING–allcaps and misspelled! You are helpless in my grip of logic!–these Scientific Advances and tried to understand this we would have cures for these crippling conditions!

    Okay . . . curing Cleveland is a stretch. I will pray for you!

  2. Tmitsss says

    Because anyone who gave you that legal advice spent most of law school licking his balls.

    Protected hyperbole? I think so, sweet,sweet hyperbole

  3. En Passant says

    Maybe prehistoric single-celled organisms had defamation laws like this, but we don't. It's gibberish.

    Hey! Some of us resemble that remark!

    If more single-celled organisms stood up for themselves in court they could sue you all into oblivion. There's a lot more of single-cell than there are effete multi-cell elitists. But too many are lulled into complacency by the numbers.

    My people been warning the single-cells about the danger of complacency ever since Edward Jenner developed his first doomsday machine back in 1795. But did they listen? Nooo!

  4. Library Nachos says

    Is your lawyer a Weimaraner? Because anyone who gave you that legal advice spent most of law school licking his balls.

    And we have a new winner for Best. Statement. Evar.

  5. Doctor X says

    To answer your probably rhetorical question there are at least two main reasons that happens. People who engage in magical thinking–especially if they sell it–like to pretend, even believe, that saying something makes reality. Now, the less you know about the subject, the more you can, well, bullshit. For example:

    Recent results from the Hadron Collider have called into question the non-locality of quantum determined events. Neurobiologists are coming to realize the uncertainty in retrograde synaptic events as quanta are released allows for non-random shaping of reality.

    Some of that contains actual science. A physicist and neurobiologist is vomiting right now. I suppose I could post on a science blog:

    Slander is, of course, any written statement about an individual which proves to be untrue. Statutory Slander requires fines of up to $10,000 and/or 1-5 years imprisonment for each repetition.

    I can already hear the bowels of lawyers clenching across the internet on that steaming load. However, IF I can convince someone who does not know what I am blathering about that that steaming load is valid I have "made reality."

    Some of it is–as in those examples–intentional with the hope to fool. Others simply believe making a statement influences reality. This is why Sports Fans go into conniptions when someone predicts their team will fail. "YOU CAN'T SAY THAT!! THEY'LL WIN!"

    The second reason which I am sure you have encountered is "we" generally expect reality to behave fairly–in our minds–and to our expectations. The whole "there outta be a law!" belief. It is as you caution in your post on the responsibility of an employer to provide a safe harassment free working environment. One may think it "unfair" to be expected intervene, but it is the law.

    Though there is one more reason . . . the person knows he is full of shit and hopes by screaming and throwing a tantrum he will intimidate critics.

  6. Chris says

    "But if you express publicly (verbally or written) that Justin Bieber does not sing, but howls, and he should not be hired to sing at any event, then you will pay the consequences of that. Whether you are right or not about his singing, that is your personal opinion. You are potentially ruining his career, reputation, credibility, work, and the financial compensation of his work as a singer. In the case of Bieber, that could cost you millions for libel/defamation for damages in his countries of work."

    Sorry for pasting that whole block, but is he really saying that having an opinion and stating it is an actionable offense? Cause there are people who have strong opinions about ponies, and I'd like a chunk of that change.

  7. Matt says

    Not that I think this automatically turns Canada into a bastion of free speech, but on behalf of my homeland I would like to toss out the rather weak defense that section 13 of the Canadian Human Rights Act, which Warman relied on to silence his critics, was repealed last year.

  8. Moebius Street says

    How could a single-celled organism get cancer?

    Cancer is, by definition, a mutated cell, copied incorrectly from its parent. But a single-celled organism does not include any daughter cells, whether or not their DNA was copied correctly. If it's a daughter cell, it's by definition a separate organism, and thus it can't have cancer any more than a human parent could be considered to have cancer when their child has the disease.

  9. sorrykb says

    This also explains why cancer does not occur nor can be induced experimentally in unicellular organisms

    This… what… argh. ????

    I'm speechless. In English, at least.

    So, to Dr. Arguello: Vous avez le cervau d'un sandwich au fromage.

  10. Farrah says

    I just wanted to point out that you misspelled Dr. Arguello's name in several places (you wrote Anguello).

  11. ketchup says

    Dr. (Arguello, Aguello, or Anguello)* doesn't have to get a First Amendment expert to believe his legal theory. He doesn't even have to get the blogger to believe it. He just has to get his customers to believe it. As long as his customers are aware of the great injustice this blogger has done to him, and that he is "fighting back", he can continue to pedal his wares. Anyone gullible enough to buy his products is gullible enough to buy his legal theory. That is all that matters to him. Even if he brings a suit and loses, that just becomes more evidence of his persecution by the system.

    *Take your pick – Ken uses all three. Maybe he does it to disrespect the doctor, as in "He is of such little importance I'm not even sure of his name." Maybe he doesn't know how to proofread. Maybe he knows how to proofread but doesn't give a ******. I'm guessing it is some combination of the first and third options.

  12. Bob Brown says

    Purveyors of questionable (i.e. junk) everything threaten and bluster because they're terrified someone will look behind the curtain.

  13. Matt says

    Ken et al, apologies for going off-topic briefly, but where there any plans to bring back the ability to mark what the last post you read was, so you could jump back to it quickly and carry on?

    On topic: If it talks like a quack, and makes baseless legal threats like a quack…

  14. AdamG says

    I really didn't think people uttered the "that's not a threat, that's a promise" thing any more. I thought it was a staple of 1980s action movies, uttered by Stallone and his ilk. Is this an Expendables promotion?

    This is really not surprising given his propensity towards mentioning his 'ties to Italian Crime Families.' Also, be sure to check out the comments from Farrah on the original SBM thread, who claims to be a former employee of Arguello's.

  15. says

    Matt:
    On topic: If it talks like a quack, and makes baseless legal threats like a quack…

    In the event of retaliation, does a quack, like, er, duck?
    (thanks gentlemen, I'll see myself out)

  16. says

    "You know, if you told me, "Ken, you're going to see a threatening communication, and the scariest and most credible part of it will be when the writer implies he may start speaking French," I would have called you a looney. The world never ceases to surprise me."

    I am reminded of the knights in MPATHG. "Now go, or I shall taunt you a second time!"

  17. sorrykb says

    A couple of people just walked by me, speaking French. Perhaps we were too quick to dismiss Dr. Arguello's claims. The avant-garde has reached L.A. …

  18. Fasolt says

    @Ken:

    I'm a blogger, not a doctor, dammit. I'm not qualified to give a detailed critique of the atavistic theory of oncology. But I will say this: Dr. Arguello's theories of defamation are buffoonish and have no basis in law or reality.

    I suspect his atavistic theory of oncology has about as much basis in reality as his theories on defamation and the law.

    To the good doctor:

    Tu es con. Tu es betes comme tes pieds. Vous sentez comme le boeuf et le fromage.

  19. says

    Justice William O. Douglas: "A function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. The life blood of a free society is freedom of expression. Cut off this life blood and a free society withers and dies. If we are to live as free men, we must think and speak like free men. We must affirm, and not abridge, our freedoms."

  20. Rick says

    Is your lawyer a Weimaraner? Because anyone who gave you that legal advice spent most of law school licking his balls.

    Just wow. I'm in awe of that paragraph.

  21. bst says

    Don't you all see that if we just migrated our bodies to single cell organisms we would all be cancer free? Dr Arguello is brilliant!

    Oh, wait, he is saying that migrating our bodies to single cell organisms is what is causing cancer. Ok, then all we have to do is stop doing that. See, he's still brilliant!

  22. sadmar says

    Picky, picky, I know, but you've pushed one of my professional buttons:

    "The First Amendment absolutely protects such commentary."

    Nope. The First Amendment does NOT guarantee freedom of speech, or provide any generic protection of speech. It merely prohibits the Federal government from legislating restrictions thereupon: “Congress shall make no law abridging the freedom of speech, or of the press.” If your freedom of speech is abridged by any institution or material conditions that are NOT Congress — say, your boss fires you for speaking your mind — the First leaves you SOL.

    Defamation law is another thing altogether. That is what protects Dr. Gorski, and it does so to a much more powerful degree than your post suggests. To simplify, Gorski would not need to establish that his remarks are "statements of opinion based on disclosed facts." Arguello would have to PROVE both that Gorski's statements are materially false, and were intended with malice aforethought, 'malice' meaning not merely 'intent to harm' but 'intent to knowingly harm unfairly'.

    The SPEECH act does prohibit domestic enforcement of defamation judgements coming from countries that do not have First Amendment protections, but that is a matter of defamation law, not anything extending out of the First itself per se.

  23. says

    Nope. The First Amendment does NOT guarantee freedom of speech, or provide any generic protection of speech. It merely prohibits the Federal government from legislating restrictions thereupon: “Congress shall make no law abridging the freedom of speech, or of the press.” If your freedom of speech is abridged by any institution or material conditions that are NOT Congress — say, your boss fires you for speaking your mind — the First leaves you SOL.

    Well, no. It also protects you from action by states and their political subdivisions, as was recognized in about 1925. Also, the context makes it clear I am talking about protection from lawsuits. The First Amendment does protect you from lawsuits premised on protected speech.

    Also, it is misleading to say there is a body of "defamation law" that is "another thing altogether" from First Amendment law. First Amendment issues are predominant in "defamation law" for the last half-century.

    Also, the "Speech Act" is not "a matter of defamation law," but a federal statute passed to protect free speech values.

    Other than that, I appreciate the lecture on First Amendment law; I feel I haven't quite gotten the hang of it yet in 539 posts about the subject.

  24. Matthew Cline says

    From one of Gorski's articles:

    Calling me a narcissistic psychopath on his website could be considered libelous.

    Wouldn't calling someone a "narcissistic psychopath" be considered a hyperbolistic insult, and thus not subject to defamation laws?

  25. AdamG says

    There is now a 5th addendum to the original SBM post. The fool Arguello contacted Gorski's bosses! What a moron. He has the balls to say

    I have contacted a law firm in Ohio which specializes in libel and slander via the internet. I just wanted to let you know that since he uses his affiliation with Wayne School of Medicine to boost his credibility, you could be also named in that suit.

    What is this guy on?

  26. Bob says

    How could a single-celled organism get cancer?

    Cancer is, by definition, a mutated cell, copied incorrectly from its parent. But a single-celled organism does not include any daughter cells, whether or not their DNA was copied correctly. If it's a daughter cell, it's by definition a separate organism, and thus it can't have cancer any more than a human parent could be considered to have cancer when their child has the disease. – Moebius Street

    In a broader context, however, single celled organisms can develop related problems, namely uncontrolled cell growth. There are mutations that may be suffered by single celled organisms that cause the organism to divide faster than it can grow, resulting in a series of smaller and smaller cells until they are simply nuclei wrapped in an extra membrane and die. Some of the mutations that can cause this phenotype are in fact similar to some mutations that cause cancer in humans.

  27. PonyAdvocate says

    Wouldn't calling someone a "narcissistic psychopath" be considered a hyperbolistic insult,

    No, not if the person actually is a narcissistic psychopath.

  28. En Passant says

    Bob Brown wrote on August 20, 2014 at 12:54 pm:

    Purveyors of questionable (i.e. junk) everything threaten and bluster because they're terrified someone will look behind the curtain.

    Unfortunately, many, maybe most, don't believe how transparent the curtain actually is to most folks. They depend on the credulity of a gullible few, often made gullible by desperation.

  29. Trent says

    Other than that, I appreciate the lecture on First Amendment law; I feel I haven't quite gotten the hang of it yet in 539 posts about the subject.

    Come now Ken, sadmar's got professional buttons and you pushed them. You are just a random blogger, it's not like you're a lawyer, former prosecutor and someone with years of experience defending free speech. After all, we can rely on the "well reasoned" opinion of some random poster with buttons, and you pushed them!

    "Atavistic Oncology"

    There is a special place in hell for people that prey on Cancer victims! These fake cures and treatments always cost big $$$ so I'm sure it's pretty lucrative to kill people for money. These scam artists kill people with these fake treatments. Steve Job's would likely be alive today had he not wasted 6months "exploring" some of these cancer scams rather than getting real clinical treatment. The reason you find most of these scam artists outside the US is because the FDA tends to slap them down pretty hard when it discovers them. Most congregate just on the other side of the southern border. It surprises me that Canada would tolerate one.

  30. TerryTowels says

    @Trent

    There are non-us, yet government-approved treatments for various diseases outside the US (treatments approved of in other countries, but not in the US). Sadly, it takes a knowledgeable, skeptical person to track them down. A friend and a relative have benefitted from non-US approved treatments.

    But, after reading Dr. Gorski's post, Arguello does not have an approved treatment, and in fact refuses to run standard clinical trials. Some of Arguello's statements are hysterical in this area. (Really, just as funny as the law statements)

    As KenWhite is to 1st amendment law, Gorski is to the science of cancer treatment studies.

  31. NotPiffany says

    Is your lawyer a Weimaraner? Because anyone who gave you that legal advice spent most of law school licking his balls.

    Ken, I have to say this is an insult to Weimaraners, canines, felines, and our contortionist friends; even a lawyer who spend most of law school licking his balls would know better than to spout that tripe. ;)

  32. sadmar says

    Ken:

    The point here is that Frank Arguello's assertions about defamation are so wacka-loon as to pretty much establish a ‘truth’ defense that anything issuing from Frankie is, in fact, 'dubious.'

    Arguello's missive to Dr. Gorski's superiors doubles-down the unintended comedy (triples-down? quadruples? exponentially inflates?). As I posted on SBM:
    ….
    “I have contacted a law firm in Ohio which specializes in libel and slander via the internet.” Hmm, I believe Gorski's superiors are aware that Wayne State University is not in Ohio. And if you’re trying to intimidate Dr. Gorski’s bosses, why would you only mention that you “contacted” a firm, and not mention anything attorneys might have mentioned about the viability of your case? Maybe because they giggled at your complaint. Or maybe “contacted” means you left a message in the office voice-mail box or just dropped them an email?

    “…it is impossible for a lawyer not to see the direct connection between his defamatory work on that website and you in the same line of work.” Huh? Weaver and Yoo have a commentary website? What sort of “direct connection” is this imaginary attorney supposed to argue in light of the first clause of your sentence which states Weaver and Yoo “do not support or review [Gorski's] writing on [Gorski's] website,”?

    I conclude that Popehat’s gag about Arguello’s view of the judgement-capacity of members of the bar is actually an insult to Weimaraners.

    http://openvault.wgbh.org/catalog/ntw-mla000311-william-wegman-and-man-ray#.U_U-IgUF-Ro.link

    …….

    And, no, my Weimeraner joke is not an ad hominen dig at your Weimaraner joke. It's also nowhere near as funny as your joke. I'm just trying to drop a little value-added Weimaraner smack on Fatuous Frank.

    …..

    The fine points of how First Amendment Law articulates with the many and various defamation statutes from State to State being of no relevance to the point at hand, I shall refrain from dick-match comparisons of expertise, or debates on how all this works. I stand by the observation that the First does not provide the protections and freedoms most people seem to think it does. I believe this Popehat post makes a similar point. However, i would note that the 'marketplace of ideas' is anything but a level playing field. The 'right' to exercise free speech in America is consequent to a large measure on ones ability to pay for it. It is possible (though, thankfully, quite difficult) for the powerful to use the threat of defamation litigation to effectively silence the powerless. Far more common and troublesome is the use of copyright litigation to similar ends. See Lessig, The Future of Ideas and Free Culture or, for a more creative take, McLeod, Freedom of Expression.

  33. Doctor X says

    @Warren Vita: Notice, as well, that one cannot find either Ebola or smallpox in Cleveland. It destroys everything!

    Cancer and Cells: technically, what happens is a cell undergoes an insult which sends it on a path towards uncontrolled growth. Depending on the type of cancer, some of the steps are very well known and described. That is a very basic description.

    The resulting cancer cells do not "have cancer." There is really no analogy that fits at that level.

    Threat to Sue a Medical School: I am sure I do not need to inform anyone HERE that that "will end badly." Such institutions have lawyerS and the bankroll to crush such stupidity. Just another impotent attempt to intimidate a critic who exposed his quackery. I guess he hopes Dr. Gorski will scurry away or his "boss" will tell him to retract and govern himself more accordingly.

    Hope is a poor basis for medical, scientific, and legal reasoning.

  34. DaveK says

    You know, if you told me, "Ken, you're going to see a threatening communication, and the scariest and most credible part of it will be when the writer implies he may start speaking French," I would have called you a looney. The world never ceases to surprise me.

    Are you not familiar with the use of 'French' to mean swearing, as in 'Pardon my French'?

  35. SPQR says

    Is your lawyer a Weimaraner? Because anyone who gave you that legal advice spent most of law school licking his balls.

    So … the consensus is pretty much that "Snort my taint" has been displaced, are we agreed?

  36. Deathpony says

    So … the consensus is pretty much that "Snort my taint" has been displaced, are we agreed?

    Well, I think "snort my taint" now sits side by side with "lick my Weimaraner". It's not an either/or.

  37. says

    @DaveK–

    I agree the specimen was groping toward some variation on "pardon my French," but it is about as incoherent as the rest of his screed. Even in its original form, the idiom is three generations out of date, and was never witty to begin with. why blame the French for your inability to express a witty comeback in good English?

  38. sadmar says

    Well, I think "snort my taint" now sits side by side with "lick my Weimaraner". It's not an either/or.

    "Lick my Weimaraner" would seem to be a conflation of Ken's comment with Dieter's "You may touch my monkey." from Sprockets. Strictly speaking, the Weimeraner is NOT the person being addressed but a metaphor for the pooka the addressee fantasizes as his/her legal representative, and said Weimaraner is licking its actually-non-existant self. This is a little complex to reduce to a snappy 3 word come-back able to propagate as an Internet meme. "Lick your Weimeraner" is technically closer, but the best I can do for a proper condensation would be "Tell your Weimeraner to lick his balls!" Which just isn't cutting enough, is it? So it seems proper indeed to take one more step down the poetic path, in which case "Lick my Weimaraner!" or "Lick your Weimaraner!" or "Kneel before The Weimaraner!" (dem deutsche doggies not being too choosy about where the genitalia they tongue bathe may be attached) or any number of other formulations ("Tongue doggie!"?) may serve quite well. Any would be consistent with the poetic nature of Ken's earlier retort, as the prospect of Ken's trouser snake being inhaled into Marc Stephens' sinus cavity through one of Stephens' nostrils is probably not consistent with Science Based Medicine (at least not without the appropriate multiple stages of clinical trials).

    Anyway, there is no need for displacement or equivalency or any kind of ranking. "It's all good." And why not bricolage the bon mots?

    "Snort Your Weimaraner's Taint!" Frank.

    (Hmm, I have nothing against Weimaraners actually… Maybe there are other less lovable creatures known for un-thinking testicle-licking…)

    Hey, Arguello! Snort Bieber's Taint!

    (I have no doubt Ken himself can do better, but I'm just to push the, er, balls, down the road.)

  39. Stephen H says

    I follow both SBM and Popehat. Didn't really think they would collide in quite this manner, but now that I think about it I shouldn't be surprised – the folk at SBM are not afraid to call out quacks, and some quacks seem very protective of their quacktices.

  40. Sigrid says

    Is he referring to Wayne STATE School of Medicine, my alma matter? In which case, I guarantee you they will laugh in his face, not only for his poor understanding of free speech laws, but also for his non-existant understanding of cancer.

  41. Dan Weber says

    The fool Arguello contacted Gorski's bosses

    Y'know, if I had to pick people on the Internet who would be least-phased by "we're gonna call your boss!", Gorski would be high on the list. He went through a fight with usenet Holocaust-deniers long ago, and about a decade ago (wow, I feel old) had the anti-vaxxers conduct a harassment campaign against his employer to get him fired. They had much bigger numbers and couldn't pull it off — this solo loon doesn't stand a chance.

    Not to say the offer of a Popehat symbol is unneeded — it's always good to let people like Gorski know there are strong people out there who have his back.

  42. Constance says

    I'm surprised the massive Cheese interests in Wisconsin and at Velveeta aren't coming after you all for your continued insult to cheese in likening it to this Quebecian moron.

  43. TimL says

    IANAL, but I am a scientist.

    The fundamental tenet of science is disprovability. That is, a hypothesis is proposed and then data/fundamental principles (e.g., conservation of mass, conservation of energy, etc.) is generated to support or refute the hypothesis. Hypotheses are never proven; they are merely disproven or sufficient evidence is generated such that they become accepted. Eventually, support for a hypothesis might become so strong that we call it a "theory" rather than a hypothesis. For example, the "Theory of Relativity" or the "Theory of Evolution" have so much support that they are as closest thing to becoming a scientific "fact" that science will allow.

    Assuming Ken's quote of atavistic theory is a valid representation of the field (I'm lazy and not double-checking), this "hypothesis" is not actually science. It cannot be disproven; it's an idea, framework, or religion, but it is not science. Similar ideas are something like "The force is an energy field created by all living things. It surrounds us, penetrates us, and binds the galaxy together." This cannot be disproven; ergo, it is not science.

    Other comments: (1) Science requires "thinking outside the box." By definition, the quest for new knowledge requires this, and (2) Science implicitly welcomes criticism. Ideas/hypotheses are presented and then tested, in an attempt to disprove them. Free speech is essential for science to function

  44. GuestPoster says

    Huh. Funny enough, there IS some support for an Atavistic Oncology theory… limited support, if you squint your eyes kind of funny. But, we've been learning in the last few years (for assorted definitions of the words 'we' and 'learning') that many, if not most, cancers/tumors have at their heart a number of cancer stem cells. Since stem cells are rarely the cells which acquire oncogenic mutations, one reasonable assumption is that these select cells obtain stem-like behavior at some point after said oncogenic mutation occurs – that is, they regress to a more primitive state. Indeed, recent work also suggests that such stem cells are part of why cancer reappears so easily – they are more drug resistant than normal cancer cells in some cases, and are better able to drive a new cancer. Research is, of course, ongoing, but still – if you squint your eyes JUST RIGHT, it looks a bit atavistic.

    As for single-celled organisms getting cancer, well – they can't. Or maybe they can. It depends upon how you choose to define cancer. After all: cancer is, when it comes down to it, uncontrolled proliferation. Several types of cells in the body proliferate as rapidly, or faster, than the average cancer – foetal cells would be an excellent example there. But such cells have an off switch – a way to stop proliferating once the job is done, which cancer cells lack. So arguably, the cancer isn't the tumor, it's a single cell that doesn't know how to stop. And you could engineer, say, an e.coli or an amoeba that would keep splitting regardless of available nutrients just as easily as a breast cell. So if the cancer is just the mutations, and not the harm the disease causes in an upper organism, then sure, amoebas can 'catch' cancer. And since the daughter cells would be more aggressive than the parental colony, they would take over and eventually out-compete the original amoebas, killing them off – a very cancery result. Also evolution, so take your pick as to what you want to call it.

    As for looking outside the box, that never makes much sense to me in science. The box is a pretty awesome place, but it's not where anybody really sits. It's where we hurl all the ideas that we utterly fail to disprove – evolution, climate change, quantum mechanics, Maxwell's equations, etc. As scientists, we look in the box to learn what people know already, then we take things out of the box, poke and prod them, and either put them in the box as they were before, or make a small alteration before adding them back to the box. But we live outside the box. The box is where you put theories – those scientific concepts that hold up pretty darn well to the data. Thinking outside the box is what scientists do, day in and day out, in the HOPE that someday their thoughts will end up inside the box. Only a rare few ever manage to stumble upon a large enough contribution to put something in the box that somebody else will ever take out again, though. Still, it's a noble ambition – to add to the sum total of human knowledge.

  45. Fasolt says

    @Ken Hamer, thanks for the links. Looking at those, I don't see where Dr. Arguello has a prayer. Unless he thinks 296(3) applies to him in some god-like fashion.

    No person shall be convicted of an offence under this section for expressing in good faith and in decent language, or attempting to establish by argument used in good faith and conveyed in decent language, an opinion on a religious subject.

    Perhaps he worships the "Atavistics". Perhaps he thinks they worship him.

    310(B) is no good for him either.

    No person shall be deemed to publish a defamatory libel by reason only that he publishes fair comments

    (a) on the public conduct of a person who takes part in public affairs; or

    (b) on a published book or other literary production, or on any composition or work of art or performance publicly exhibited, or on any other communication made to the public on any subject, if the comments are confined to criticism thereof.

  46. Resolute says

    @Matt

    Not that I think this automatically turns Canada into a bastion of free speech, but on behalf of my homeland I would like to toss out the rather weak defense that section 13 of the Canadian Human Rights Act, which Warman relied on to silence his critics, was repealed last year.

    True, but the criminalization of defamatory libel that the quack cites is still on the books- Section 301 of the Criminal Code. Beyond the defences Ken Hamer posted, it appears courts in several provinces have found Section 301 to violate the Charter. Doesn't appear to have been decided by the Supreme Court, though I suspect they would rule the same way. Section 300 (publication of libel one knows to be false) does have support. Just ask Marisol Simoes, who lost her appeal earlier this year. Then again, Simoes made the "sue for bad online reviews" people Ken likes to post about look like rank amateurs.

  47. Chad Henshaw says

    Oh, atavistic, not Altavistic…. I was wondering what antique web portals had to do with cancer….

  48. Zach says

    I just found out my state (Ohio) does not have an anti-SLAPP law yet… I want to move now. :/

  49. pjcamp says

    "Because anyone who gave you that legal advice spent most of law school licking his balls."

    While trying to reach his taint?

  50. Roivas says

    I think this cancer theory is interesting. I think suing your critics over it is complete bullshit.

    Seriously, are you trying to cure cancer or not? because I'm pretty sure cancer doesn't care if you sue someone.

    If you need the money to research your theory, get it somewhere else; and if people aren't willing to donate money to you it's probably because YOU'RE AN ASSHOLE.

  51. TimL says

    @GuestPoster. There is considerable evidence supporting phlogsiton too. However, there is sufficient evidence to disprove it. Ergo, it was scientific, just wrong.

    The atavistic view of cancer cannot be disproven; it's not science.

  52. GuestPoster says

    Well, yes, which is why I specified squinting your eyes and whatnot. Since, again, cancer stem cells ARE being found to be important, and would count as an atavism for certain definitions of such (stem cells being the originators, or progenitors, of differentiated cells, from which the vast majority of cancers are formed). So it would count, for some people, as having taken on the characteristics of ancestors (ie: devolution). But the atavistic theory presented is quite wrong, on many levels.

    That being said: you're wrong that the atavistic view of cancer (as espoused by the not so good Doctor) isn't scientific. It CAN be proven or disproven – that's how we know it's wrong. We ran the experiments, collected the results, reproduced anything iffy looking, and came to a conclusion. It's not like creationism, which by definition cannot be tested. We can actually look and see if cancer cells operate like single celled organisms. And while they might share some similarities, it's not nearly what would be required to support the theory as presented.

  53. steve says

    Informal Fallacies – Appeal to the Person:
    Rebut an argument by criticizing or denigration its presenter rather than by dealing with the argument itself.

  54. Ancel De Lambert says

    "I have contacted a law firm in Ohio which specializes in libel and slander via the internet."
    He chose… poorly.

  55. anne mouse says

    I'm not too interested in reading Arguello's book. Can anybody summarize for me the relationship, if any, between the theory of atavism and the Arguello's methods of treatment (to the extent that these aren't top secret)?
    From what I've seen so far, his method seems to be "We expect every patient to be different, so just try something. If the patient doesn't improve, try something else. If any patients survive longer than average, call that a victory." Now, the "try something else method" is one that, pragmatically, is quite appealing in cases where the standard methods don't offer much hope, even if the try-something method is not especially useful for understanding *why* or even *whether* any particular treatment works at all. But what I'm wondering is, how does atavism theory guide him in deciding what to try first?

  56. GuestPoster says

    Anne Mouse:

    Having not read the book, but having a reasonable understanding of the theory and 'treatment':

    The theory of atavism is about regression to earlier traits. Arguello is proposing, as has been proposed before, that cancer cells have somehow regressed to their earliest ancestors: the single celled organism. Now, beyond the fact that we know that this isn't the case, and in fact are able to figure out with a bit of detective work what DOES drive any cancer, and beside the fact that he doesn't seem to propose any mechanism for HOW a cancer cell would somehow regress in such a way…

    The key idea is that single celled organisms are currently exemplified by bacteria. Viruses are KIND OF single cell-y (they are not cells, but they're small and relatively simple). And fungi are not very advanced beyond single celled organisms (or at least the fungi that you tend to get in the gym). So, if cancer is a single celled organism, then logically it should respond to antibiotics (developed to kill bacteria), antifungal agents (which kill fungi) and antivirals (that kill viruses). That's what he means by 'off label' use.

    Of course, antibiotics are overwhelmingly populated by penicillin and similar molecules, which target a protein unique to most bacteria, and which is not present in human cells. That's why you can take huge doses of antibiotics compared to other drugs: they will only hurt bacteria most of the time, since only bacteria have the target protein. Now, GOOD bacteria will die, and all bacteria will develop a resistance to any given drug, but that's another story. Anyways: cancer is incredibly unlikely to express this key protein since it's not in the human genome – a cancer would need to effectively breed with your gut bacteria to get the correct genes, and do quite a fancy dance to find a critical use for said.

    Antiviral agents are similar – by and large they target proteins which are at least somewhat unique to the virus in question. Reverse transcriptase, for example, is critical to the function of HIV, but relatively less critical to most cells (telomerase being a notable reverse transcriptase that you DO need). Anyways: since such proteins were generally chosen for drug therapy because human cells don't need them much, antivirals wouldn't be expected to do much, just like antibacterials.

    Antifungals are the same story as antibacterials and antivirals – like most drug discovery, you try to target a protein that the host doesn't need very much, and inhibit the heck out of it.

    So anyways. The theory and the proposed treatment are logically related – if cancer is a single celled organism, then kill it the way you kill other simple organisms. But the theory is demonstrably wrong, and even if it wasn't, the proposed treatment would be unlikely to work. At best, his patients would be expected to show a placebo effect for a while.

    And, of course, if the treatment DOES work, well – hopefully he'll publish the results in a reputable journal, stop making ludicrous challenges that nobody will ever accept for moral and legal reasons, and share this knowledge, in full, with the rest of the world.

  57. Joe T. says

    I think the dismissal of what appears to be basis of his putative legal claim may be a bit premature. It looks like, though he never actually says it in so many words, he is working from a theory of per se defamation, which is a valid concept in most states (including both Ohio and Indiana). In West Virginia, where I live, two of the categories of per se defamation are "imputations which affect a business, trade, profession or office" and "imputations of a loathsome disease" (usually understood to mean a sexually transmitted disease, but "loathsome" potentially leaves wiggle room to include things like "psychopath"). See Mauck v. City of Martinsburg (1981).

    Would he prevail? Doubtful. But he could potentially create a huge financially-draining legal hassle.

    (This is of slightly more than academic interest to me personally, as comments I made on a local mailing list prompted a reply by a county commissioner who was later sued by the subject of those comments for defamation under the first provision.)

  58. says

    @JoeT: "Defamation per se" is a category often invoked but rarely correctly.

    "Defamation per se" does not mean that the plaintiff is relieved of proving that the statements are false, and does not change the distinction between fact and opinion. Saying that something is defamation per se only means that the plaintiff does not have the burden of proving special damages flowing from the statements. It has no impact whatsoever on whether the statements satisfy the other elements of defamation.

  59. Derek Freyberg says

    @anne mouse:
    "" Can anybody summarize for me the relationship, if any, between the theory of atavism and the Arguello's methods of treatment (to the extent that these aren't top secret)?"
    Guest Poster seems to have given you the relationship between the theory and Arguello's methods of treatment broadly defined (i.e. using antivirals, antibiotics, and antifungals), but his detailed methods of treatment do seem to be top secret. He claims to be keeping them confidential until he can file for patents – but doesn't seem to have filed any yet (strictly, doesn't seem to have filed any more than 18 months ago: you can only see published applications, and they publish at 18 months). But correspondent Farrah on the SBM thread (who says he/she worked for Arguello for a while) has a little on Arguello's drug purchases: http://www.sciencebasedmedicine.org/atavistic-oncology-revisited-dr-frank-arguello-responds/#comment-259362.

  60. AdamG says

    Addendum 6 now exists as Arguello limps forwards…

    Dr. Gorski,

    I am kindly ask you to remove all your online postings regarding me and my work. The lawyer who is investigating this case has identified several reproductions in other websites that end with .org and suspect associated to you. He told me the names by phone, but I only remember the .org.

    I am ready to send an e-mail to the Dean Dr. Parisi, and a large list of deans of your school. But I wanted to give you the opportunity to assure me you will remove that. I do not want to embarrass you more than you have embarrassed me, but I will have no mercy on you until you remove those defamatory statements. If I can recover money for damage I will certainly will do that if you persist.

    If you want to talk about that subject of atavistic oncology, submit your paper to a peer-review medical journal.

    Frank

    Sad trombone.

  61. anne mouse says

    GuestPoster, thanks. That info was actually present in SBM's initial article about Arguello; i must have skipped it in my rush to get to the legal bluster. Or maybe I just refused to believe it. It's just mind-blowingly scary.

    Derek, while you were writing I was looking up the drugs Farrah mentioned:

    Fluconazole, Praziquantel, Itraconazole, Actonel, Albendazole, Mebendazole, Doxycycline, and Tranexamic acid

    Antifungal, anti-flatworm, anti-fungal, * , anti-worm, anti-worm, anti-bacterial, **

    * Actonel is interesting. It strengthens bones by interfering with osteoclasts. For all I know it's not actually specific to osteoclasts but happens to concentrate in bones because it binds calcium.

    ** tranexamic acid is even more interesting. It's a lysine analog that happens to improve blood clotting by inhibiting degradation of fibrin (it competes for binding sites on plasmin). How it fits into atavism theory, I have no idea.

  62. Woo Fighter says

    UPDATE! Late this afternoon (Aug. 21) Doc Arguello sent Dr. Gorski a "one last chance" e-mail, threatening to complain to all the Deans of Dr. Gorski's university, AND seek financial recompense, if he doesn't remove the entire post about Arguello from the Science Based Medicine blog. (I hope HTML tags work here…) He also claims his lawyer gave him a list of mirror sites he discovered, all with a .org extension, where the original article is now posted. He's blaming Dr. Gorski for all those mirror sites and crying that's he's been embarrassed by all this negative publicity and "unfounded" criticism.

    The latest e-mail threat is now posted on Dr. Gorski's blog, but it's teasingly and frustratingly short.* Still, despite its brevity it's chock full o' grammar and spelling errors.

    *I like when Doc Arguello rambles.

  63. Joe says

    "Dr. Arguello’s treatment is dubious and it should be avoided,” That's unfortunate. I could use a cure for the throbbing pain emanating from behind my left eyeball after reading his threats.

  64. says

    One billion years separate the last common unicellular ancestor of animals and ourselves, more time separates this ancestor and the ancestors of extant bacteria, fungi and archea. It is a duck, he is making money out of sick people, he should be in jail.

    As they say in France, voila!

    I am, however, rather surprised over the 1st amendment discussion above – surely there must be an atavistic theory of Free Speech that you all believe in fervently?

  65. Ken Hamer says

    Arguello keeps moving closer to criminal harassment, though I don't imagine Gorski fears for his safety… yet.

    http://laws-lois.justice.gc.ca/eng/acts/C-46/section-264.html

    Criminal Harassment
    264. (1) No person shall, without lawful authority and knowing that another person is harassed or recklessly as to whether the other person is harassed, engage in conduct referred to in subsection (2) that causes that other person reasonably, in all the circumstances, to fear for their safety or the safety of anyone known to them.

    Prohibited conduct

    (2) The conduct mentioned in subsection (1) consists of

    (a) repeatedly following from place to place the other person or anyone known to them;

    (b) repeatedly communicating with, either directly or indirectly, the other person or anyone known to them;

  66. Aiede says

    I had the honor of knowing the late Dr. Alexander Walt, for whom the center in which Dr. Gorski practices in Detroit was named. I'm amusing myself in imagining how this immensely smart, educated and principled man would have, in his wonderful South African accent, dismantled every single thing Dr. Arguello believes.

  67. sadmar says

    @ Joe T.

    Can you say a bit more about the suit you mentioned? First, I'm not understanding how your comment to the list figures. The plaintif sued the commissioner over the comment posted by the commissioner, yes? Was the commissioner's reply in sympathy to your query, such that you might feel you opened the door for the suit? Or was the commissioner's reply a rebuttal to you, such that you might be in some sympathy with the complainant? Did you feel the suit was frivolous or had possible merit? Second, what were the economics of the litigation? Did the commissioner have 'deep pockets'? Was he sued as a private individual, or as-commissioner, such that the city would be responsible for damages? Did the plaintif feel so 'affected' they dug into their own pockets to seek some sort of name-clearing? How far did this suit go? Was it in fact hugely-financially-draining on anyone, and if so, on whom?

    I ask as I can't imagine Dr. Gorski facing financial drain, as I can't imagine Arguello could find an attorney to represent him on spec, nor that he would or could cough up (so to speak) the legal fees up front. But if your experience indicates otherwise, do tell.

  68. Dan Weber says

    Sad trombone.

    Quite.

    Back in the old days of the Internet, it wasn't unusual to see this exchange in a flame war:

    Person A: I'm going to sue.
    Person B: Ok.
    Person A: Seriously! I've got a lawyer!
    Person B: Excellent, please give me his or her name so my lawyer can get in touch.
    Person A: Uh. . . no. I'm not telling you his name.

    Is that ten-line .sig file from the SBM post reproduced exactly? That's another classic sign of crazy from the Usenet days.

  69. Fasolt says

    Derek, while you were writing I was looking up the drugs Farrah mentioned:

    Fluconazole, Praziquantel, Itraconazole, Actonel, Albendazole, Mebendazole, Doxycycline, and Tranexamic acid

    Antifungal, anti-flatworm, anti-fungal, * , anti-worm, anti-worm, anti-bacterial,

    Maybe all those fungi, flatworms, worms, and bacteria have cancer and he's killing them off to get rid of it. :D

  70. Fasolt says

    Dr. Arguello,

    If you want to talk about that subject of atavistic oncology, submit your paper to a peer-review medical journal.

    I eagerly await your paper submission, you pompous jackass.

  71. James says

    From Canada's criminal code:

    309. No person shall be deemed to publish a defamatory libel by reason only that he publishes defamatory matter that, on reasonable grounds, he believes is true, and that is relevant to any subject of public interest, the public discussion of which is for the public benefit.

    While the libel laws read a like they are a little bit crazy until you get to that section, for the most part it is quite hard to actually bring a charge of criminal libel against someone because you would have to prove that they actually did not believe the matter to be true (unless it was just a random slur against a private person that couldn't be argued to be in the public interest – obviously a question of whether a variety of medicine effectively treats cancer is of public interest).

    Blasphemous libel seems pretty out-dated to me, but it actually relates to blasphemy – statement that offend religious sensibilities. I don't doubt that Arguello's theories are more religion than science, but I wouldn't think he'd want to declare that in a court (and I don't think anyone actually gets charged under this law anyway, we've got quite a few holdovers from earlier times in our criminal code).

  72. dwbrant says

    Who would let themselves be treated by such a person?

    Desperate people hoping to save their lives. I know my own mom consulted a quack, against the advice of each of her sons, because dad was grasping at straws to keep her around a bit longer.

  73. Fasolt says

    It appears Dr. Arguello has never been educated on the Streisand Effect or the First Rule of Holes. That's disappointing with a man of his obviously impressive credentials. ;)

  74. Joe T. says

    Ken White: "'Defamation per se' does not mean that the plaintiff is relieved of proving that the statements are false, and does not change the distinction between fact and opinion."

    The actual burden of proving falsity varies by jurisdiction though. E.g. in California, juries are apparently instructed that the burden of proof re: falsity for per se defamation is that the plaintiff prove the statements were made without "reasonable care to determine the truth or falsity of the statement(s)". So in a jurisdiction with similar rules (note: I have no idea what the specific rules may be in Ohio or Indiana), assuming he can get this into court on a theory that "narcissistic psychopath" is defamatory per se, I would assume that it would be sufficient to make a prima facie claim to show that the defendant is not qualified to make that diagnosis professionally nor could he have communicated with anyone with both sufficient knowledge of the plaintiff and professional expertise to make such a statement. (And if such a person did communicate such a statement to him, that would itself be a violation of various privacy statutes.) I presume it would then be up to the defendant to refute that and show "reasonable care" in some fashion.

    Again I doubt that this would actually get all that far, but possibly far enough to force a plaintiff to hire a lawyer for whatever cost that would amount to.

    As for the lawsuit I was sort of the inadvertent trigger of, sadmar, it happened like this:

    The commissioner in question had recently moved to put the county IT administrator under the authority of the county maintenance department (vehicle maintenance, janitorial services, etc.). This looked to me like the latest move in an ongoing feud between that Commissioner in her previous position of Circuit Clerk, and the IT administrator's boss who had sought access to her previous office's IT equipment and vocally opposed her election to the Commission.

    During discussion of this on the mailing list, I noted that given the above facts it looked as though the intent was to insult the IT administrator. The commissioner herself replied to me on-list and made various statements imputing lack of professional capability on the administrator's part, like "Frankly, no one knows what he does all day" and saying that in one case he "could not do what needed to be done, so [another official] had to call a real IT Specialist" and in another they "ended up having to call [an IT contractor] to straighten it all out".

    The administrator in question, though not named (which is why I'm not naming him here), was clearly identifiable. He sued the Commissioner on the basis of her statements and won a judgment that amounted to actual damages for his cost of moving when he took a new job, and a small punitive award.

  75. Ryan says

    A person who claims to be a scientist, yet resorts to strange legal threats to settle issues of fact instead of debating the merits of the science, is not actually a scientist.

    @Matt @Resolute @James etc

    All of you are progressively adding up to the sum of the situation in Canada today. Our free speech protections got significantly more robust with the repeal of s.13 of the CHRA, and the current Criminal Code provisions regarding speech have a significantly greater hurdle to see a courtroom than the old CHRA tribunal nonsense.

    Regarding defamatory libel in the Criminal Code, the provisions start at section 297 of the CCC, but you have to read all the way down to section 317 to get the full context of what is and is not subject to defamation law. And yes, that's weird in Canadian law, as exceptions are typically all part of a single subsection, not spread out over a dozen separate subsequent sections. Makes for difficulty reading. At any rate, s.309 is a pretty obvious exception that would preclude any attempt to seek a conviction for defamatory libel.

    It's also worth pointing out that the Criminal Code is precisely that – a criminal statute. Arguello may attempt to file a criminal complaint to prosecute for defamatory libel over this nonsense, but it is highly unlikely he would ever get a police department to investigate, nevermind lay charges. As for the chances of him getting this through a civil process, Canadian courts are typically unkind to nonsensical and vexatious civil litigation, and he no longer has the CHRA to fall back on.

    One other point: A commenter named Patrick (not sure if Popehat's Patrick or a different one) incorrectly stated in the ancient 2008 post about Canada's free speech protections that the Charter is just another law, not elevated as the US Constitution is. The Canadian Charter of Rights and Freedoms is entrenched in the Constitution Act (courtesy of the Constitutional Act, 1982) and is the overarching law of the land with which all other laws, federal, provincial, and municipal, must comply. Unless, of course, Parliament or a Legislature invoke s.33 to allow it to allow a law to operate notwithstanding the Charter, which is subject of course to the whims of the electorate preserving the elected reps that invoke the clause. Yes, Americans will find this bizarre. You may find it less bizarre if I tell you that to amend the Constitution you need the majority support of both Houses of Parliament, and a majority of the provincial legislatures representing a majority of Canadians. Constitutional amendment is quite nearly impossible by design; the notwithstanding clause allows for test periods, supposedly, though it's used in much less noble ways (Quebec's language laws, I'm looking at you).

    Tangential post finished, carry on.

  76. GuestPoster says

    Ryan, have to disagree re: "A person who claims to be a scientist, yet resorts to strange legal threats to settle issues of fact instead of debating the merits of the science, is not actually a scientist." You see: scientists are people too, and make mistakes. And they are people too, and eventually get very tired of having to 'prove' something over and over again to folks who don't care what the facts actually are, because they just make their own 'facts' to counter with. And eventually, your average scientist will get so sick of harassment pretending to be scientific debate that (s)he may just go get a lawyer to try and make it stop.

    Not that things usually get that bad, but they do occasionally. And not that that makes the idiot under discussion a particularly good (or even tolerable) scientist, but none the less – it's bad science to claim that no true scientist will ever get a lawyer rather than debate a position on scientific merit.

  77. says

    @GuestPoster 25 August 12.19 pm Bovine excrement, technically speaking.
    Sure scientists are people and so prone to all the foibles of people. But, scientists NEVER prove anything. So you got that wrong. Science is falsifiable and has to be. Otherwise it is faith which is metaphysics and religion, different fields altogether. Science works on the balance of evidence, but unlike in a legal case, the case is never closed and there is never a verdict, simply an ongoing working hypothesis (= wrong, but makes sense with what we know) or theory/law (works, but has limits). Note that even Newton's Laws are "wrong", but they work fine at the macroscale and at speeds we can make things go.

    A person who reaches for a lawyer over scientific critiques of what they call "their science" is not a scientist. Snake oil sales person, OK, but not a scientist. No real scientist I have knowledge of has done this and neither will they do it. If people don't believe you, then you go from a Phase I to a Phase II to a double blind Phase III and then onto multicentre double blind Phase III.

    Show me a Phase III done by Arguelo and I will agree he is a clinician scientist. Without a proper Phase I/II he is a snake oil salesman, comically issuing legal threats, because he is being publicly unmasked and a nice little earner may dry up. Still, he could always go to West Africa and start pedalling silver nanoparticles.

  78. GuestPoster says

    Really? Just because you've never met people means they don't exist? Real, honest to goodness scientists might hire lawyers to, oh, preventing global warming 'skeptics' from showing up at their labs and screaming at their students. Or to get restraining orders against animal rights protesters who just won't believe that no, we don't even HAVE animals in this lab, and would you please get off my lawn? Or to deal with material transfer agreements with skeptic labs that are demanding samples of EVERYTHING they did for the last 20 years, which would require the hire of a full-time technician to fulfill.

    Similarly, scientists DO prove things, all the time. It's one of the horrible things about science in public – the words get mangled, or over-emphasized. You CAN prove things in science. You can prove that mice are smaller than elephants – beyond all doubt. You can prove that a given drug works on a given culture of cells – you add the drug and see what happens. And you can prove it multiple ways, by multiple methods.

    Can complex theories ever be conclusively proven? Depends upon how complex, and what proof is required. We have, for all practical purposes, proven the existence of hydrogen bonds. Are scientists up to having the theory rebutted? Sure, they ought to be. But at a certain point, something is SO certain, and backed by SO MUCH evidence, that it's as close to a fact as a fact gets – it's been proven.

    Yeah, science has to be falsifiable. But by the same token, somebody has to accept the falsification. When somebody refuses to do that, eventually you ask them to just go away. When they refuse that, that's where the law might come in.

    You want a 'no true scientist' rule? Try 'no true scientist would rule out anything, or call anything absolutely impossible, or say that something will never happen – except for the true scientists that would do exactly that'.

    And again: none of this means that Arguello is some sort of scientist, let alone a good one. He's quite obviously a quack. But that doesn't mean that things he does re: lawyers are suddenly off limits to ANY scientist, any more than things he does re: wearing a shirt would never be done by 'a true scientist'.

  79. Some Random Guy says

    @Ryan: at the risk of being pedantic (or is that precise?) with respect to a tangent, there are four (or five, depending on if you consider the ability of a province to opt-out of a constitutional amendment to be a different "formula", which I don't) different formulae for amending the Constitution of Canada (each province can amend its own constitution alone), none of which actually requires the assent of the Senate (as long as it does not reject the proposed amendment – see s. 47), and none of which conforms to the formula you described.
    .
    I think that the formula you were looking for is Parliament plus a two-thirds majority of provinces (currently 7 of 10) representing at least fifty percent of the population of the provinces (no actual majority of the population required – tie goes to the amenders, not that it's likely to matter).
    .
    The territories, of course, don't count. As far as I know they can't even invoke the notwithstanding clause (I don't believe that territorial legislatures have been read in to s. 33, but I could be wrong). This leads to the odd situation that in some ways, on paper, your rights may actually be better guaranteed in a territory than a province.
    .
    The notwithstanding clause doesn't apply to all constitutional rights and freedoms, or even to all of them in the Charter – just some of the most important ones like fundamental freedoms, legal rights, and some, but not all, equality rights (such rights and freedoms as are guaranteed in the Charter are always guaranteed equally to men and women, reflecting the fact that once upon a time the Supreme Court of Canada decided that women were not "persons" for the purpose of being appointed to the Senate).

    Interesting bit of related trivia: for most of the 80's all Quebec laws invoked s. 33 (it was a matter of principle, or so they said). I don't think that the Quebec language laws currently on the books invoke s. 33 (but I could be wrong about this as well).

  80. Ryan says

    @SRG

    S.38 amendments (general procedure) require Senate consent unless, as you pointed out, they don't give it within 180 days in which case the Commons can override via s.47. I didn't launch into the precise formula because most readers don't care; but you are of course correct that it's 50 percent pop and seven provinces. I believe last time I looked Quebec is still using the notwithstanding clause for their language laws, renewing as needed. And yes, I know s.33 applies to only some (the most important, IMHO) Charter protections.

    @GuestPoster

    It would seem some of the words in my comment did carry the meaning they should have. Of course scientists can hire lawyers to deal with legal issues. The point is that scientific facts under debate are an issue to be settled by data, and actual scientists would do so, not file lawsuits because someone dared disagree with them and called their statements junk science. Certainly I don't recall "get pissy and make ridiculous legal threats because my feelings got hurt and I can't make a fact-based counterargument" being part of my training, but maybe I missed that day :)

  81. careless says

    " Blasphemous libel seems pretty out-dated to me, but it actually relates to blasphemy – statement that offend religious sensibilities."

    Do you not know what "but" means?

  82. Devil's Advocate says

    I'm confused. Do you treat atavistic cancer the same way you would treat regular cancer in monkeys*, or do you treat atavistic cancer by acting like a monkey*?

    * By "monkey," I mean "bonobo," of course.

  83. Jes says

    "I really didn't think people uttered the "that's not a threat, that's a promise" thing any more."

    It was actually tossed at me 3 times in one conversation recently, by a guy who was CLEARLY threatening me. Man, I wish I had a buck for every time someone thought dropping the words "see you in court" would make me cave to their idiocy.

  84. Jes says

    @GuestPoster

    As for looking outside the box, that never makes much sense to me in science. The box is a pretty awesome place, but it's not where anybody really sits. It's where we hurl all the ideas that we utterly fail to disprove – evolution, climate change, quantum mechanics, Maxwell's equations, etc. As scientists, we look in the box to learn what people know already, then we take things out of the box, poke and prod them, and either put them in the box as they were before, or make a small alteration before adding them back to the box. But we live outside the box. The box is where you put theories – those scientific concepts that hold up pretty darn well to the data. Thinking outside the box is what scientists do, day in and day out, in the HOPE that someday their thoughts will end up inside the box. Only a rare few ever manage to stumble upon a large enough contribution to put something in the box that somebody else will ever take out again, though. Still, it's a noble ambition – to add to the sum total of human knowledge.

    This is great!

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