If It Walks Like A Duck, And Censors Like A Duck . . .

Law

Remember Christopher Maloney? Agreeing with P.Z. Myers, I called Maloney a quack, because he's an advocate of naturopathy who suggests that black elderberry will block the H1N1 virus. I also suggested that he might be a censorious douche, a claim that I retracted and clarified when some different quack appeared and took the credit for getting a blog critical of Maloney pulled. Maloney encountered the Streissand Effect, and was quite whiny about it both over at Myers' blog and here:

Ok, let’s have you irritate someone with a national following and get spammed all day by idiots who have no degree and less information about science. I’ve already explained to PZ’s other minions that you are not scientists, you are a mob. Many of you are reasonable human beings, but some of you like to leave threatening messages. I’m not sure, when I have to call the police to check on a threat, is that enough of a threat or is that just whining? And, no, I haven’t actually been burned at the stake, but several of you have offered. What a loverly group of fundies you all turn out to be.

I'm pretty sure that the "national following" part refers to Myers and not to us.

Anyway, if the prior evidence that Maloney is a censorious douche turned out to be mistaken, he's thoughtfully provided new evidence, in the form of a bumptious legal threat to Myers. Maine attorney Maeghan Maloney — who is also a newly elected state representative, and may or may not be related to Christopher Maloney — demanded that Myers retract his statement that Maloney is a quack "within seven (7) business days." Presumably that last is intended to make it clear that the word "seven" is equivalent to the Arabic numeral "7", even for naturopaths.

Meaghan Maloney's legal theory — to use the phrase generously — is that though Myers may have a First Amendment right to say that naturopathy is bunk, the Great State of Maine recognizes and licenses naturopaths, and therefore it is libel per se to say that Christopher Maloney is a quack. Under Maloney's legal theory, if someone convinced some legislative or bureaucratic arm of the State of Maine that a therapist can cure cancer by beating the patient with a live five-pound lobster, it would be libel per se to call lobster-wielding therapists quacks as well.

The problem with this legal theory is that it's a load of utter naturopathy. "Christopher Maloney is a quack" is quintessential opinion, and therefore absolutely protected under the First Amendment to the United States constitution. Pure opinion is not subject to defamation suits. Opinion that implies false facts can be the subject of a defamation suit — but only if those false facts are themselves subject to defamation analysis. The opinion "I think Meaghan Maloney is a bad lawyer, as people convicted of molesting squirrels tend to be," is potentially defamatory, because it implies that Meaghan Maloney has been convicted of molesting squirrels, which presumably she has not been. But "Meaghan Maloney is a bad lawyer because she is making bumptious threats in an effort to stop people from criticizing junk science" is not subject to defamation analysis, because the opinion component implies other opinions, not false facts. In this case, Meyers made it very clear that he viewed Maloney as a quack because Maloney is an advocate and practitioner of naturopathy. Meaghan Maloney admits that Myers has a protected right to call naturopathy quackery. That settles it.

I wonder whether, before sending her feckless and thuggish missive, Meaghan Maloney researched how courts have treated the word "quack" in defamation cases. I did. It took me about five minutes to learn that multiple courts in multiple states in multiple decades have found that calling someone a "quack" is protected opinion and not subject to a defamation suit, particularly when the context shows that it is hyperbole. Yiamouyiannis v. Thompson, 764 S.W.2d 338 (TX 1989) (calling an opponent of flouridation and vaccines a “quack” was pure opinion protected by the First Amendment); Dowling v. Livingstone, 108 Mich. 321 (1896) (it was opinion, not defamation, to refer to an anti-immigration scheme as a “quack remedy”); Gonzalez v Gray, 69 F.Supp.2d 561 (S.D.N.Y. 1999) (husband’s claim that his wife had been having “sex with a quack” was opinion, not defamation against the doctor); Spelson v. CBS, INC., 581 F.Supp. 1195 (N.D. IL 1984) (statement that “nutritionist” treating cancer patients with “vitamins, minerals, and extracts of raw animal organs” was a “cancer quack” was protected opinion). In the rare cases where courts have not protected terms like “quack,” they were used in a context specifically suggesting untrue facts. See, e.g., Nasr v. Connecticut General Life Insurance Company, 632 F.Supp.1024 (E.D. IL 1986) (though calling a doctor a “quack” has been found to be protected opinion, when used in manner suggesting false underlying facts, it was actionable). Courts have made similar findings regarding other epithets, including “charlatan.” Ernst v. Basset, 521 So.2d 414 (La. 1988) (“charlatan” was non-actionable statement of opinion).

In short, if Christopher and Meaghan Maloney follow through on their threat with a lawsuit, Myers should be able to prevail. Regrettably, Maine has a weak-ass SLAPP statute that only applies to petitions to the government — a circumstance that weighs in favor of a national anti-SLAPP statute. But if the Amazing Naturopathic Maloni do sue, Myers should sue their asses for malicious prosecution after getting their censorious suit dismissed. Notwithstanding that Myers probably views me as evil, I would be happy to donate my time to assist his legal defense team in Maine. I've won some SLAPP motions, and attorney fees, in my time.

If these people think this threat would deter PZ Myers, they haven't done their due diligence on him. Of course, it's possible that Meaghan Maloney issued this stupid, stupid threat merely to make Christopher Maloney feel good about himself, or merely to make him think she was doing something. If she did — and if she didn't advise her client that the natural and probable result of her threat was to increase, dramatically, the number of people reading posts calling him a quack and writing new posts calling him a quack — then she's a damned fool and a shitty lawyer, whatever her relationship to him is. Clients want to do angry, foolish things; a decent lawyer's job is to stop them. Even if they are quacks.

Last 5 posts by Ken White

16 Comments

16 Comments

  1. Dan Weber  •  Dec 8, 2010 @3:26 pm

    PZ might just up the ante; posting something along the lines of:

    "Not only is it my opinion that Maloney is a quack, I fully believe it to be an accurate statement of fact. It is fully my intention to cause harm to his business and harm his reputation since I believe he hurts people."

    Basically call Maloney's bluff.

  2. Ken  •  Dec 8, 2010 @3:28 pm

    Perhaps. But you can't make an opinion into a fact just by saying it is one. If you say that I am a convicted criminal, that's a statement of fact. If you say I am a dork, that's an opinion, even if you couch it in "it is a fact that Ken is a dork." "Quack", I believe, is the same.

  3. Patrick  •  Dec 8, 2010 @4:06 pm

    No. You are a dork, and that is a fact.

  4. Ken  •  Dec 8, 2010 @6:17 pm

    Incidentally, "raven" — a helpful commenter on Prof. Myers' site — has patiently explained to me that Prof. Myers can just sue Christopher and Meaghan Maloney for violations of his civil rights under 18 U.S.C. 241, a federal criminal statute, or can just get the U.S. Attorney's Office to indict them for that crime, and that this will survive a "Summary Dismissal motion" [sic]. Unicorns might have been involved at that point, but frankly I was laughing so hard that my eyes teared up and I missed the rest.

  5. Scott Jacobs  •  Dec 8, 2010 @7:49 pm

    I'm gonna have to side with Patrick on this one Ken…

  6. Ken  •  Dec 8, 2010 @8:06 pm

    I am SO suing you now.

  7. nrasmuss  •  Dec 8, 2010 @8:23 pm

    Ken, as to your hurtful and censorious comments regarding lobster-wielding therapists, I wish merely to point out that good humor is positively correlated with better medical outcomes. Surely you do not seek to deprive the residents of our nation's cancer wards of the positive follow-on effects of this remarkable and efficacious treatment?

    No doubt the Maine Lobsterman's Benevolent is drafting a missive to Ms. Maloney as I type this…

  8. Linus  •  Dec 8, 2010 @8:50 pm

    I like to think that if my last name were Maloney, I'd actually spell it "Mologna". Mmmmmm, Mologna….

  9. Scott Jacobs  •  Dec 8, 2010 @8:58 pm

    Thankfully, Ken, I know a couple of lawyers who might be able to defend me from that suit. :)

  10. Ken  •  Dec 8, 2010 @9:15 pm

    nrasmuss, I doubt ANYONE would find it funny to be beaten with a five-pound lobster. I grant it that many of us would find it funny to see another person — preferably an annoying person, like one of the Maloni — beaten with a five pound lobster. So if you would like to develop a treatment methodology that involves carting them around to cancer wards and beating them with lobsters, I will not call you a quack.

  11. PLW  •  Dec 9, 2010 @6:54 am

    If it walks like a dork…

  12. Chris  •  Dec 9, 2010 @8:17 am

    Boy, how would you even create a blind study to find out if that works? Would you take people around to cancer wards and beat them with something less funny that still looks like a lobster?

  13. Ed G  •  Dec 9, 2010 @9:32 am

    And wouldn't "Lobster Therapy" get PETA all over your case? Shouldn't you be using a "TofLobster" or some other nutritionally-similar substitute?

  14. Ken  •  Dec 9, 2010 @9:38 am

    A TofLobster would just splat wetly all over the place. That would be low, pie-in-the-face comedy. REAL lobsters — all hard and spiny — would be edgy, black, Tarantino-style comedy.

  15. Dwight Brown  •  Dec 9, 2010 @11:58 am

    Chris:

    I personally believe that a proper double-blind study would compare lobsters to Hippoglossus hippoglossus.

    I propose this, not because I believe the latter would be more or less effective, but simply just for the halibut.

  16. Michael Hawkins  •  Dec 9, 2010 @8:18 pm

    A couple things:

    First: Maloney was in contact with that other quack, Andreas Moritz. It is unknown which quack contacted the other first (my bet is that Moritz initiated a connection, but that's educated speculation), but it is clear that I constitute their most direct link. As a result of their conversations about being featured on my site, Moritz sent WordPress an email which cited Maloney's status as a licensed naturopath in Maine. As far as I'm concerned, Maloney had a pretty clear hand in assisting Moritz in getting my site shut down for 6 days. (Maloney later lied and said I was only shut down to due a WordPress glitch.)

    Second: Maeghan Maloney and Christopher Maloney are married.

    Third: Maloney said he contacted the police. He's a drama queen. They turned him away and the officer never bothered to file any report, what with no crime or threat ever being made. Crazy that.