Popehat Signal: Dutch Blogger Sued In Florida For Criticism of Junk Science

New Popehat Signal courtesy of Nigel Lew.  Thanks, Nigel!

New Popehat Signal courtesy of Nigel Lew. Thanks, Nigel!

It's time for the Popehat Signal, in which I request help for people whose speech is threatened by bogus and censorious lawsuits.

Pepijn van Erp blogs about science and pseudoscience from the Netherlands. He praises good science and skewers and critiques the bad. Wait a minute. Is that the Jaws theme playing? Yes. Yes it is — because blogging about junk science is a great way to get threatened or sued. In my experience, purveyors of "non-mainstream" science are unusually litigious and sensitive to criticism. You've seen it here at Popehat with "atavistic" cancer theorists and vaccine truthers and naturopaths and fans of questionable cancer remedies and AIDS deniers. I blame the crystals.

Pepijn wrote about a guy named Ruggero Santilli. I see that Wikipedia, which has a four thousand word article about Bigfoot, notes that some scientists view Santilli as a "fringe scientist."

Image of Professor Santilli courtesy of http://www.i-b-r.org/Prof-Santilli-faces.html, used for criticism and reporting.

Image of Professor Santilli courtesy of http://www.i-b-r.org/Prof-Santilli-faces.html, used for criticism and reporting.

Why is he viewed that way? Well, you can read Pepijn's post about Santilli's claim that he discovered a new type of gas from specially distilled water. Or you could read Pepijn's post about Santilli's claim that antimatter produces "antimatter-light" that can be focused using concave (NOT convex. NEVER convex.) lenses.1 Santilli, unhappy, threatened to sue over the posts, claiming that Peijin van Erp has not only defamed Santilli, HE'S DEFAMED ANTIMATTER:


[Why have scientists not accepted Santilli's theory of magic gas and anti-light? According to one of his supporters it's because of Jews.]

Pepijin's letter in response is everything you could hope for, pointing out that Santilli was threatening the wrong people by targeting his associates, that Santilli's threats of Dutch criminal charges were bumptious, that he had explained the factual basis for his opinions (which were framed as opinions), and that one of the articles was three years old and past the statute of limitations according to a helpful article on the threatening lawyer's own web site.

Santilli was not satisfied and has now filed suit in Florida, as one does. The lawsuit — which you can find here — is odd. Santilli has sued Pepijn van Erp, naturally. He's also frivolously sued van Erp's blog host, Hosting2Go, even though Section 230 of the Communications Decency Act plainly makes the host immune from defamation suits over the content supplied by a blogger. He's also sued Frank Israel, head of the Dutch Skeptics Foundation, apparently because van Erp is a member of that foundation. (Flailing at skeptic foundations associated with skeptic bloggers is classic censorious-junk-scientist behavior).

The arrogant, entitled, malicious, censorious, and frivolous-to-the-point-of-sanctionable nature of the lawsuit is best captured by this paragraph:

It is recognized in the scientific community that when one disagrees with the scientific findings of another, the proper forum for challenging the science is through respectful debate, research and publication of peer reviewed articles based on inconsistent scientific findings and is not customarily attacked through blogs without peer review.

Yeah, peons. You're not allowed to question antimatter-light on your blogs.

Anyway, through his attorney Joseph E. Parish, Santilli is suing over the terms "fringe scientist", "mad professor", and "cunning scam artist". In my view, van Erp's posts very clearly establish these as opinions based on stated facts. Moreover, the inclusion of the host is simply vexatious, and the inclusion of Israel is inexplicable. This is thuggish harassment of criticism of junk science.

Van Erp (and possibly Israel) could use help. Even though the case is rather patently meritless, it could cost a ruinous amount of money to defend. I do not understand that skepticism makes people rich, and very few people can afford modern litigation, even when they are completely in the right. I understand that they can contribute to their defense but that they are hoping that an attorney admitted in Florida will accept the case at a price point bearing in mind the First Amendment issues involved.

As always, your freedom to speak — and mine — depend upon lawyers standing up against vexatious and unethical censorship-by-litigation like this. If you are a Florida attorney and would like to help, please contact me at ken at popehat etc.

Let me end with this: what kind of "scientist" responds to criticism of their scientific theories with litigation rather than proof?

"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.

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Dispatches From The Junk Science Front

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

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

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

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

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

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

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

The union representing TSA officers defended the program.

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

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

Meanwhile, in Texas . . .

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

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

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

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

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

Confronting Junk Science: Keep Calm And Carry On

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

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

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

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

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

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

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

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

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

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

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

This is one to watch.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(A) a communication in or pertaining to:

(i) a judicial proceeding;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Edit: Orac on the science of it.

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

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

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

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

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

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Tell Me About The Rabbit, Marc Stephens

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

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

Hello Kenneth, or Ken @ Popehat,

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

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

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

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

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

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

Dear Marc Stephens:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Must run, have to berate an associate;


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

Junk Science And Marketeers and Legal Threats, Oh My!

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

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

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

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The CSI Effect And The Perils of Faith In Science

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

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

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

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

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

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