John Loftus, ex Freethought Blogger who left because not enough Christians were engaging with his posts so he could convert them, who subsequently founded and then left Skeptic Ink for the same reason, is now blogging at his original Blogspot blog about PZ Myers and Michael Shermer. (A hint, good sir — you may want to actually target your intended audience with your posts.) In his post, wherein the only possible reasons he proffers that PZ Myers might have published the rape allegation — made against Michael Shermer by an unnamed source whom he trusts — involve either naivety or malice, Loftus published the following addendum:
In a personal email to me Shermer categorically denies these accusations. If what he said about his accuser gets out, it will be apparent to most all reasonable people that PZ Myers published a bold-faced lie. He recklessly tried to destroy another person’s reputation without regard for fact-checking.
As Stephanie Zvan asked, what could Shermer have possibly said that would make it so that just by his mere refutation, his innocence would be so patently true that it would be like a lightning bolt revelation from on high, that the accuser would be so tarnished by only what he told you that she could not possibly be correct under any circumstances? But there’s another layer to this, beyond Stephanie’s justified anger at this patently immoral and empathy-free defense: Shermer’s lawyer could not possibly have vetted this statement. The reason for that is fairly obvious, but Ace of Sevens explains quite succinctly:
If I understand the legal situation here, Shermer may rattle a bit, but doesn’t want to name his accuser.
* The main thing he has going for him in a defamation suit against PZ is it’s hard for PZ to prove his story is true while protecting his source’s identity. Prove that someone really did tell PZ that Shermer raped her and the case won’t survive summary judgment. He could sue her instead, but she’s probably not famous and he’d have less to gain.
* To add to the above, Shermer seems to be admitting that he knows someone really did accuse him and PZ didn’t just make it up. That goes against the narrative in his cease-and-desist letters and that most of Shermer’s defenders are using. If he admits PZ was repeating an accusation that was was actually made and acted in good faith, his whole case falls apart without PZ naming anyone. I hope PZ’s lawyer is aware of this communication.
* If the accuser is identified, he loses the main thing holding her back from giving more details, which will probably only serve to make Shermer look worse. Right now, he can pass this off as a vague, anonymous accusation and he’s better off if it stays that way. Outing her would be a Pyrrhic victory at best.
* Plus he could get sued for defamation himself if he tries publicly humiliating her. He’s a public figure and she probably isn’t, so he’d be in more legal danger.
* My suspicion is that Shermer doesn’t know who the accuser is, but has a strong suspicion. This is an attempt to intimidate her by making her think that’s he’s identified her and keep her from coming forward with any more to avoid reprisal. His slimy insinuation that he could cause serious damage is correct, but it wouldn’t work out well for him either, so this is hopefully just a bluff.
Emphasis mine. And — SPOILERS for the end of my post — Shermer has apparently since walked back what he said to Loftus.
Bearing in mind that I am not a lawyer, by my understanding, this is the lynchpin of Shermer’s case: defamation generally requires the information provided be false. PZ Myers reported that someone he knows had accused Shermer of sexual assault. If Shermer does know of someone who has made such an accusation, then PZ Myers reported the truth. Does it matter whether or not the actual allegation is true at that point? From the legal case against PZ, I’m going to guess absolutely not. A case against the accuser might hinge on the truth of her claims of being assaulted, though. PZ avowed that he had no way of knowing whether or not the allegations were true, but he felt it absolutely morally imperative that because he trusted the victim, the information needed disseminating, in order to keep others from potentially being victimized — with the acknowledgement that he was doing so at personal cost.
In much the same way as we skeptics warn others of the potential harm of psychics, medical charlatans, and other con artists, even in absentia of these people being legally tried and convicted, we humans generally want to warn others of potential breaches of our trust. That is, after all, how reasonable people deal with credible allegations which are multiply corroborated by others, if they have a functioning sense of empathy and an ability to look at the statistics regarding false allegations for a particular crime and decide, on balance of probability and weight of the corroborated parts, the allegations have a chance of being be true.
I don’t think Shermer’s lawyers were particularly happy about this though, because Loftus later reports, in reply to someone asking directly if Shermer knew who his accuser was:
Initially he didn’t. Then he thought about it and thought he did. Now he tells me he doesn’t. Don’t make too much of this. He’s trying to guess, that’s all, just as anyone would.
Either Shermer does know who has accused him, or he’s decided that it might not be the person he originally tried to nut-and-slut to Loftus. If the former, PZ walks; if the latter, there’s an acknowledgement that more than one person has said the same thing about him. Are there any lawyers in the house who can confirm my suspicions here?
Regardless of whether I’m right or not, Shermer, some advice for what my advice is worth: stop talking. You are NOT helping your case. You might be inflaming your fanbase but you’re seriously undercutting your own credibility and possibly wrecking any case you have. Save it for the courtroom, for your own sake.
I’m not a lawyer either, but I did take law-school level courses on business law and art law. My understanding is he could still have a case against PZ even if PZ were accurately reporting that he was told. However, in that case, he would have to prove that PZ believed or strongly suspected the accusations were false. This is pretty much impossible to prove.
The only cases I’m aware of where anyone won with this argument involved major newspapers going after relatively minor figures with allegations that were so off the wall, it wasn’t credible that they could have a good faith belief they were true. Can’t recall case names off hand, but one was a newspaper that reported a source had told them they picked up a payphone and were accidentally connected to a call between a college football coach and a bookie who were discussing throwing a game and a student photojournalist who was accused of being an Iranian spy and killing Bobby Kennedy with a camera disguised as a gun.
Since there’s nothing prima facie implausible about the accusations against Shermer, the source was clearly in a position to know and Shermer is a public figure, I don’t see how any case against PZ will get far unless he can argue that PZ made the whole thing up
This is a trial in the court of public opinion, of course, and perhaps Shermer will realize that he will never recover the portion of the fanbase that he has lost because of this. Me, I put myself in the “Goddammit, Mike, I was a fan!” camp. I am no longer.
Knowing PZ, even to the limited extent that I do, the one thing that I do trust is his integrity and if he says someone gave him information harmful to Shermer, then I have no reason based on my experience to doubt that he got this information.
The important thing to me is that there are likely women in the skeptical movement now who will not be raped because this is public knowledge. That makes it worth it.
Shermer’s ego is too massive to take this obvious advice. I have no doubt his lawyer tells him that every time they talk but does Shermer listen? Not that anyone would notice.
I think you have some lawyer readership. Hopefully, they’ll be along soon to correct me.
Someone fire up the Rieux-Signal!
I seem to remember Shermer writing an essay or possibly a full book on the subject of how smart people can believe dumb things. I think we have here an example of a smart person doing really dumb things. I’m not talking about the alleged rapes and other sexual assault and harassment. I’m talking about how he won’t shut up. The interview with Ian what’s his name (I’m very tired tonight and you guys know who I am talking about) should have had his lawyers threatening to quit if he said one more word to anyone.
The best part is I can see the scenario where he just talked to Loftus, looking for a friendly ear, and didn’t realize that Loftus was going spread it around. As for Loftus, his behavior is frankly appalling, both in publishing the threat ” If what he said about his accuser gets out” (whether that actually came form Shermer or Loftus himself) and his petulant, childish attack on PZ’s book. Another bright man acting very stupidly.
It always troubles me when I see grown up, intelligent, well-educated people behaving in a way that would be shameful in a 15 year old.
Not a lawyer, but at least I know how to read Wikipedia. Ace of Sevens:
A common line repeated by those opposed to Myers is that the Confrontation Clause would force him to out the unnamed accuser he’s protecting. There are three things wrong with that:
1. The right to face your accuser only applies to criminal cases, and libel is a civil crime in the US.
2. You might counter that while it’s true libel is civil, Shermer’s accuser is making a criminal allegation. Fair enough… except she isn’t bringing him to trial. She said she had no interest in pursuing a criminal case. With no case against Shermer, there’s no way to invoke the Confrontation Clause.
3. Let’s say I’m wrong here, too. Even in a criminal case, however, the Confrontation Clause makes an exception when the accuser has been prevented from testifying by the accused. It’s a long shot, but if Myers’ lawyers can put up a good argument that Jane Doe was intimidated by Shermer, and could face retribution, the judge might revoke Shermer’s right to confront. Fortunately, actions like these go a long way to demonstrating intimidation and retribution.
“John Loftus, ex Freethought Blogger who left because not enough Christians were engaging with his posts so he could convert them”
Is that true? Did Loftus leave for that reason?
@7: Right, but you also can’t disclaim responsibility for defamatory statement by attributing them to unnamed sources. If you could, defamation law would be pretty meaningless. Here’s a good article on the subject http://www.rcfp.org/browse-media-law-resources/digital-journalists-legal-guide/limits-promising-confidentiality-0
@8: That’s why Loftus says he left. The real reason seems to be that he was being a total classhole to Natalie Reed. He called her an affirmative action hire and said she wasn’t qualified to write here thanks to her mere BA in English, unlike him with his Master’s of Divinity. Then, no one took his side.
Oops. Hit send early. Was going to say he then rage-quit.
Basically, Ace of Sevens is correct.
Technically, a person who “republishes” a defamatory statement can still be liable for defamation; prefacing a statement with “somebody told me that …” or words to that effect doesn’t immunize you.
But the plaintiff still has to prove all of the elements of defamation against a “republisher” defendant, and in the case of a public figure that means “actual malice” under New York Times v. Sullivan. As Rieux has explained in some comments on one or more FtB blogs, that’s an unfortunately named phrase, because it suggests to laypeople (and even some lawyers who don’t understand defamation law) that it’s about a desire to hurt the plaintiff. As the actual case law makes clear though, “actual malice” in the context of defamation means “with knowledge of falsity or with reckless disregard for the truth.” And “reckless disregard” is a pretty high bar, too — just plain old sloppy journalistic technique doesn’t cut it, it basically has to be a kind of “sticking your head in the sand” attitude.
So basically, as Ace says, Shermer would pretty much have to show that PZ either invented Jane Doe or knew that Jane Doe was lying. (I doubt that a bog-standard “bitchez be crazy” attack would meet reckless disregard.) If PZ was acting in reliance on information he believed, then even it that information turns out to be false, it wouldn’t matter whether his subjective intent was to protect convention-goers, or to be a big meanie to Shermer, or to get ALL THE BLOG HITZ!!!!
Is it bad that the main reason I clicked through to Loftus’ post (having read most of it quoted in various other places around the web) was to see if the rest of the title after the part shown in the URL was “Lord?”
hjhornbeck@7:
As you say, the whole Confrontation Clause thing is a big non sequitur given that the only actions being discussed are civil. The real issue would be civil discovery, which brings up some unique wrinkles dealing with anti-SLAPP laws that are probably not worth speculating about at this point.
A person who repeats a defamatory statement is generally as responsible for the defamatory content as the original speaker.
However, a public figure must show the defamatory statement was published with either knowledge of falsity or in reckless disregard for the truth.
Ace of Sevens @9:
It all depends on the sources. If you’ve investigated and found their story to be plausible, and can demonstrate that to a judge, then you cannot have libeled. The tricky part is what is considered “plausible.” While there is likely a fair bit of case law here to provide guidance, the judge’s opinion will also be a big factor. And given what we know about the justice system, well… there’s a reason PopeHat considered this case “interesting.”
Myers also cannot point to any other accusations made after his own, as they could not have influenced his decision (unless he knew about them before hand, of course). Arguing no damage has been done by the accusation probably isn’t an option, either, as Shermer is likely famous enough to successfully argue for “per se.”
On the other hand, Myers does have some nice escape routes:
And while I was worried the SlymePit’s catalog of grievances would be used against Myers, between my own reading, Rieux, and the opinions of other commenters, I’m now fairly convinced that libel has a narrow scope. In other words, Myers could march naked through the streets tossing poisonous squid at anyone he can reach, and it wouldn’t effect this case at all unless it directly effected his decision to publish the unnamed accusation. All the whispered rumours floating around the SlymePit amount to jack shit, in terms of evidence, unless they’ve managed to find something directly related to Myers’ statement that every commenter at FtB has missed.
[Again, not a lawyer, so I could be wildly off the mark here.]
left0ver1under: According to Jane Doe’s account, she knows five more victims of the same technique; also there is at least one man – Dallas.
The worst case scenario, as rumored, is ‘get a woman at every convention’ for however many years this has been going on.
Pteryxx (#18)
I’ve said very little on the topic here or elsewhere because I have no connection to those involved and what little I know about the situation is solely from what I’ve read. I don’t want to deal in supposition, never mind accusation.
But if Shermer did say he doesn’t know who the accuser is, then it’s a bit like George Bush saying he did not use any illegal drugs since 1974. It leaves an obvious and unasked question that eventually will be asked.
And yes, I did screw up the blockquote, forgetting to put in the slash. Whoops.
While I can’t speak to how well Shermer met that supposed goal, the worst case isn’t quite that. He is famous enough that, along with the tales about harassment spread in back channels, there were also plenty of stories about willing women. So there’s that at least.
Uh-oh: “Beetlejuice, Beetlejuice, Beetlejuice.”
Look, I (an attorney with extensive litigation experience but—I have to reiterate—zero defamation litigation experience) am on record saying that Shermer’s legal case against PZ is extremely weak at best for reasons that have little-to-nothing to do with the question of whether PZ can prove that the allegation he quoted is true. You can dig up my initial long comment on Almost Diamonds, but anyway the upshot is that in order to prevail, Shermer would necessarily have to prove “actual malice” as that term-of-art is defined by the U.S. Supreme Court in New York Times v. Sullivan, and I seriously doubt that he can do that.
I’m not sure that the notion that PZ made the whole thing up would be very helpful to Shermer, either. First, it just seems patently absurd: it’s fairly clear that Carrie Poppy has corroborated the existence of Jane Doe and her allegation (which is not the same thing, obviously, as corroborating the accuracy of that allegation), and if I understand correctly there’s at least one other person besides PZ, Poppy, and Doe who could say that and more about Doe and her allegation.
Second, it’s certainly not true that Shermer would have to show that PZ fabricated the whole story in order to prove “actual malice”… though it would help an awful lot. If there were something about Ms. Doe’s story (or about her personally? Like Stephanie Zvan responding to Loftus, I’m finding it hard to come up with realistic ways to fill in that blank) indicating that it was very likely false—something that only a reckless person could disregard before heedlessly publishing the story—then that could suffice to prove “actual malice” even though Jane Doe is a real person with a real (though, in this hypothetical, probably false) story.
In sum, though I suppose Shermer could allege that PZ made the whole thing up, that tactic would (I think) merely serve to increase the pain on all sides. PZ could presumably prove fairly easily that it’s nonsense, but he might not be able to do it without naming Doe. Shermer’s risk, meanwhile, is pretty much the one stated in the third bullet point (which I think makes more sense than the first two) from Ace of Sevens’ comment: drag Doe into the open, and you might very well not like everything she (and her corroborators) have to say.
I don’t think the case hinges on the question of whether PZ made the story up. I don’t think anyone who’s taking the case seriously (including Shermer’s attorneys, who seem very competent AFAICT) could think that he did. It seems to me that the lawsuit, if it’s ever filed (and I doubt it will be), will be centrally about “actual malice,” and thus PZ’s alleged recklessness regarding the truth or falsity of what Jane Doe told him. Which means that it would boil down to the very issue that Loftus is (all too opaquely) writing about: there would have to be some unavoidable reason that no reasonable person could find Doe’s allegations credible.
—
P.S. Oh hell yes, Shermer’s lawyers are telling him to STFU. And PZ’s should be telling him the same thing. To be all too sympathetic to Shermer, I imagine it’s very, very uncomfortable for someone who believes he’s been defamed (or who needs to give that impression?) to be prevented from getting his “side of the story” out; there would seem to be an obvious conflict between Shermer’s emotional/reputational interests, on the one hand, and his litigation interests, on the other.
That is, alas, something we litigators have to deal with a lot more often than we’d like. Unfortunately, our clients have to live lives and transact business and communicate with their friends and the public even when we’d prefer that they just crawl into their cellars and remain incommunicado for the next ten years. Okay, five.
I should say, I can think of absurd things that Shermer-via-Loftus could have in mind as factors that should have made it clear to PZ that Doe was lying: say, “It’s extremely well known that Jane Doe hasn’t left Mongolia for the last 30 years, and that Shermer’s never been there.”
That would very likely suffice to show “actual malice” on PZ’s part. (Which makes it, uh, an instructive hypothetical?) The problem is that it’s ridiculous.
hjhornbeck @7:
Seriously? That’s a common line?
No. Just no. Flatly absurd.
To be clear, if Shermer sues PZ, it’s not at all implausible that he could force PZ or someone else (e.g., Carrie Poppy) to disclose Jane Doe’s name. (Though, for the reasons Ace of Sevens suggests in the comment quoted in the OP, Shermer might not actually want to do that.) It’s even conceivable that Shermer could force her onto the witness stand. (Though I really doubt he wants that.) But regardless, the dad-blasted Confrontation Clause would have nothing to do with it.
Sheesh.
@Rieux: My thought was that if PZ made up the story, that would be prima facie evidence of actual malice. Presumably, this is why Shermer’s lawyer has been claiming this thusfar, despite it being a rather absurd theory. They could claim that PZ made the whole thing up and hope he agrees to issue a retraction to protect his source. If he didn’t make Jane Doe up, then actual malice would be pretty much impossible to demonstrate, so they want to keep it around as a strong possibility.
…And, as I continue reading down the thread, I see that screechymonkey and retired lawyer (who has clearly lost the knack: more words = more billable hours = more dough, Counselor!) have things well in hand. And hjhornbeck’s conclusions @16 make sense to me. Anyway, I’ll shut up now.
Did PZ contact Shermer prior to throwing that grenade, and if not, why not make a simple query even if it was just to add “I asked Shermer to comment and he told me to fuck off”? I ask this because in all the snot that Loftus builds a verbose cesspool out of, this was the only question that I could not find an answer to.
Anyone venture to guess or share if they know?
It is not that complicated, really. There is nothing PZ said that was libelous. Stating that he had someone reveal something to him, which he then carefully states he has no way of knowing or proving, but is tempted to believe it, is not libel. There is no way Shermer wins any kind of a lawsuit, even if he is dumb enough to file one. There is NOTHING PZ wrote that amounts to libel in the least. No wonder Ken White is taking this on.
Agh: so much for shutting up.
Oh, sure. But it’s not a necessary showing. Your funny examples @1 are illustrations of alternatives. Hell if I know what analogous showing Shermer could make in this case.
He has? I guess I missed that.
Well, Shermer and his counsel wouldn’t be bound to any such representation in a pre-litigation letter. Until it shows up in a pleading (i.e., here, in the Complaint that initiates a lawsuit), it doesn’t mean much.
I guess that makes more sense to me as a PR strategy than a litigation strategy (which is certainly not to say that PR strategies don’t matter in a case like this). I just can’t imagine that Shermer’s counsel seriously thinks that Jane Doe is fictional, or that asserting in court that she is would be anything but an extraordinarily risky plan.
My guess: He didn’t, because he saw no point in it. Shermer would be sure to deny the accusation.
~ ~ ~
Rieux: thanks for your informative comments. You too, Ace of Sevens.
Shermer and his lawyers have to think pretty highly of themselves if they think actual malice in motivation was involved. Given the potential harm to PZ – for actually doing this maliciously…that would have to be a mighty passionate hate that PZ has for Shermer. I get the impression that Shermer has not had that kind of impact on PZ.
Or for “blog hits”…. interesting that Shermer and co could imagine such a valueless and immoral scoundrel in PZ – who would attempt to “ruin” a man for ephemeral hits.
Neither seem like an even remotely plausible motivation for someone as concerned with ethics as PZ…
I don’t know who thinks Shermer has a good lawyer… as I read the C and D… I found the suggested motives….absurd.
IIRC, the cease & desist letter PZ got claimed he made Jane Doe up. The link I posted earlier says there’s some precedent for assuming unnamed sources don’t exist unless you can demonstrate they do.
I agree with Ace of sevens @ 9, that is the way it is in Australia and Britain and (I imagine the USA would be no different. Jason, you are not a lawyer and therefore it is unwise to be giving legal advice to either side. What Freethought Blogs needs is its own lawyer, if it had one on the books a few weeks ago PZ would not have gotten himself into such hot water.
Well, it seems to me that all the speculation about Shermer’s lawyers rests on the assumption that they actually think that they have a winnable case.
Might also be true that they told him that they don’t think so but are willing to work for his money. They might actually be grateful for Shermer repeatedly shooting himself in the foot. Makes them look better…
+++
As for what he can “tell us about his accuser”:
Unless it is something like “has never left Mongolia” or “didn’t actually go to any cons ever” I guess it’s the usual:
-had sex with somebody before
-just regrets it
– has an axe to grind
– doesn’t want to admit to her husband that she’s been unfaithful*
etc…
*I have a nasty feeling that targetting married woman is actually part of the strategy. You can shame a married woman much better into silence because she has so much more to lose.
@31
“if it had one on the books a few weeks ago PZ would not have gotten himself into such hot water”
I’m guessing here that PZ knew he would go into hot water and decided to do the right thing, anyway.
Crap. From the initial post, PZ clearly knew quite well that he was putting himself at risk, but felt ethically obliged to do so. But maybe that’s a completely inexplicable way to act as far as you are concerned.
That water looks fairly tepid from where I’m standing.
Re Rieux
The big problem that Shermer would face if his attorneys actually filed a suit against PZ is discovery. Since he has to claim that his reputation has been damaged by PZ’s blog post, his reputation then becomes an issue and in discovery, PZ attorneys would have almost an open season on questioning Shermer. For instance, Shermer, when he participated in the RAM, has admitted that he took drugs to enhance his chances.
I am not an attorney but I would quote the late celebrated attorney Louis Nizer who, in one of his books, stated that he always advises potential litigants not to sue as the damage to their reputations that might result from discovery could well be more damaging then the issue at hand.
Did PZ contact Shermer prior to throwing that grenade, and if not, why not make a simple query even if it was just to add “I asked Shermer to comment and he told me to fuck off”?
Because doing so can be cast as malicious and threatening. Malicious if you ask and he says “certainly not!” but you then go public anyway. Threatening if you don’t word it very carefully, and probably even then.
Rich people (and corporations) sue middle class people (and corporations) to force the defendant to spend large sums of money in their defense. The cost of this lawsuit probably isn’t that great to Shermer (plus, he has a defense fund now) but I’m guessing PZ is less able to foot the bill. Lawyers are expensive and bankrupting PZ would send a message.
Sorry, I know this may be perilously close to Devils advocacy, but this rubbed me the wrong way:
Not necessarily. If the accusation is flat-out false, then he’d potentially have no idea who it was. Similarly, if it were an inflated claim, then his unethical (if legal) behaviour would lead to multiple regretful encounters.
I hasten to add that on the balance of probability, I believe the accusations against him. I just don’t think that’s the nail in his coffin.
That said, it’s amazing just how many people can’t simply take the advice “Dude, SHUT UP!” even when their reputation is on the line.
@leftwingfox:
Or if his defense is “well, there was that one woman who had a small grievance and threatened to ruin my life with a false rape claim, which as you know, being a good MRA, always destroys a man’s life and has no repercussions on the woman’s life.”
But, again, that only works if you have a nice counterfactual view of the world to pad it out.
adding to Marcus Ranum @37… also, asking the other party to comment *about going public with something* can tip them off and give them time to pre-emptively create an alibi, smear, or counter-accusation to poison the well. I’ve had that happen, on a much smaller scale.
…So Shermer will be going after Ian Murphy then?
drken @38:
There’s a fair amount of truth to that in general terms, but I don’t think that’s how things would/will play out here.
First, my understanding is that Popehat was/is arranging PZ pro bono representation. If that’s correct, it’ll cut down PZ’s costs enormously—potentially to $0. (Depends upon whether he’s on the hook for various and sundry expenses—for court fees, paying for witnesses’ time and mileage, etc.)
Second, Shermer has hired a well known and presumably very expensive L.A. law firm, at least for the purpose of writing that initial demand letter. I have no direct information about what Timothy Neufeld‘s billing rate is, but given his profile I have to think it’s in the neighborhood of $500 an hour. If I’m anywhere close to right, that ballyhooed legal defense fund—which, at the moment, has collected a grand total of $1,843.00—would buy less than four hours of Neufeld’s time. If Shermer goes ahead with a lawsuit, he’ll burn through that fabulous fund in less than a week. …Of a process that will last for months, at least.
For those reasons, I suspect that Shermer has more to lose financially from filing suit than PZ does… unless Shermer wins the case. Anyway, as long as (1) PZ has pro bono representation and (2) Shermer is represented by a major corporate firm, any protracted lawsuit will break Shermer’s bank looong before it will break PZ’s.
cityzenjane @29:
(I guess this is my new SIWOTI trigger.) Nonono! Not malice—”actual malice.” It’s a legal term of art. It has no necessary connection to “doing thi[ng]s maliciously” or “passionate hate.”
Damn that Supreme Court anyway, coming up with such confusing terminology. (Though, er, “malice aforethought” is likewise not about malice, and that term is a lot older than the U.S. Supreme Court.)
mofa @31:
If I had been FTB General Counsel (hey, sweet gig—but I fear it wouldn’t pay much), I would have advised PZ to be as damn sure as he could that Jane Doe’s story was credible. After that, I’d tell him he could go ahead and quote-post the story in exactly the way he actually did. I probably would have suggested that he and I talk to Ed Brayton before posting as well, but (1) quite possibly PZ did that anyway and (2) hell, Ed’s background is in newspapers, so again I think we’re looking at no change from what actually happened.
By the way, I’m not counsel for FTB or anyone else involved here (I hope!), so absolutely no one should take anything I post on the internet, ever, as legal advice. Consult your own counsel. (Also smile at them and bring them thoughtful gifts.)
mofa, I gather you haven’t been following the discussion about the legal angles on this case very closely, but the considerable weight of the professional opinion appears to me to be to the effect that Shermer’s chances of winning the threatened lawsuit are poor. Given that, the “water” does indeed seem to be lukewarm at best. More to the point, given a second chance I doubt PZ would do much differently.
Rieux:
That’s not even the worst of it; over on Ashley Miller’s blog, Steersman is currently arguing that “per se” and “illegal per se” are synonyms. I suspect that’s because a Wikipedia editor linked one to the other.
This mess has made me sympathize with lawyers a lot more. Watching Wiki lawyers pontificate must be like watching 5th graders run wild in a chemical lab.
True, dat.
@Rieux
According to your link: “The publisher must entertain actual doubt as to the statement’s truth.”
Firstly would PZ words qualify? “I will again emphasize, though, that I have no personal, direct evidence that the event occurred as described”
Secondly isn’t there a problem that PZ Myers is a scientist and us such:
1) He certainly knows that it is important to assure the claims (hypotheses) are falsifiable, and that unfalsifiable claims are a bad idea.
2) He also has proven that he has the ability to formulate claims in a way that is falsifiable via his work.
3) But the claim against Shermer, as published are not falsifiable in any reasonable way: as no specific date, place or person is specified. In fact theres a huge assymetry of specification – Shermer is specified by name, and particular negative words and phrases are specified: “coerced, raped, could not consent, unethical behavior, victim, really bad, sense of futility, assaulted, has no recourse, no way out”, while other major factors are either consciously made secret (identities of accusers), not told (dates, places, details) or worded in a vague, ambiguous way (eg. “I’ve heard stories about him doing things”).
More explaination what It means to be unfalsifiable: if the date, hour and place was specified then the accused could falsify the claim by providing the evidence that he was in a different place at that time.
So for a scientist, if a claim is not falsifiable then it basically is worthless – the truth value of such claims should be automatically doubted by a scientist, as the claim cannot be tested and proven false then for a scientist such claim cannot be stated with enough confidence level to consider it what normal people call “true”.
Since rieux, being a lawyer, is doubtless charging 500 Imaginabucks per word for his posts here to the Giant FTB Conspiracy Fund, let me answer and see if I can get some of that lovely imaginary currency.
According to your link: “The publisher must entertain actual doubt as to the statement’s truth.”
Firstly would PZ words qualify? “I will again emphasize, though, that I have no personal, direct evidence that the event occurred as described”
No. Saying “These are the limits of my direct knowledge” is not the same as going “Therefore I doubt everything beyond this limit.”
I have no personal, direct evidence of the Amazon rainforest. I do not doubt its existence.
Secondly isn’t there a problem that PZ Myers is a scientist
Stop right there — I can see where this is going (admittedly, I read ahead), so let’s just stop right there.
Scientific process is about gaining understanding through analysis of repeated phenomena, whenever possible. Hopefully, Michael Shermer raping someone through the use of alcohol is not a repeated phenomenon, nor do I recommend Myers set up a lab to test said phenomena.
So: So for a scientist, if a claim is not falsifiable then it basically is worthless – the truth value of such claims should be automatically doubted by a scientist, as the claim cannot be tested and proven false then for a scientist such claim cannot be stated with enough confidence level to consider it what normal people call “true”.
A *scientific* claim is worthless, if it is not falsifiable; that is not the same as saying “A scientist has to follow scientific standards for all claims.” After all, a juror has to decide things “beyond a reasonable doubt” while they are on a jury — do they have to decide what they want for lunch “beyond a reasonable doubt”? No; that standard, that method, is applied to a specific question.
Similarly, scientists apply a scientific standard to scientific questions; they can use much different standards when judging about the rest of the world.
Got it?
GrzeTor @46:
No.
No.
That’s irrelevant to “actual malice” (which involves a publisher’s recklessness pertaining to hir assertion’s falsity, not its falsifiability), defamation claims, and quite possibly litigation in general. “Claims [that] are bad idea[s]” are not therefore defamatory.
Irrelevant.
Irrelevant. None of this means anything in the context of litigation.
A defamation suit has very, very little to do with whether “a claim” (more to the point, a published assertion) is valuable. The question is whether it’s tortious—that is, so damaging that it’s worthwhile to limit the First Amendment right to free expression by allowing a party implicated by it to win damages from the publisher for harming hir via publication. Falsifiability may improve Karl Popper’s opinion of your scientific hypothesis, but it does nothing whatsoever to protect a publisher from a defamation claim.
Indeed, in some circumstances (though not, I think, ones implicated by this case), courts have held that non-falsifiability can make an assertion less susceptible to defamation lawsuits:
The upshot of the above is that the one intersection between (1) falsifiability and (2) defamation liability is that the lack of (1) sometimes dictates the lack of (2). Otherwise they have nothing to do with each other.
Again, I don’t think this matters for the current controversy because the dispute isn’t, at heart, about anything PZ stated as a matter of his opinion. However, it could very possibly have been dispositive the last time PZ was publicly threatened with a defamation lawsuit—that is, when he called loony-tunes sketch artist Stuart Pivar a “classic crackpot.” Pivar did in fact file suit over that epithet, but the whole thing collapsed and was withdrawn before PZ’s attorney had the chance to bludgeon it to death with Milkovich and related case law.
@Rieux, 48 —
Hope you don’t mind my responding, and thank you for bringing your legal knowledge here; it is a fascinating view into the world.
Ha! At that piker rate, I could barely even start paying the monthly lease on my Imaginateslaconvertible, to say nothing of the (no-Imaginabucks-down) mortgage on my Imaginacondoinbali or my all-consuming Imaginaheroin habit.