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

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48 Responses

  1. SG says:

    Ken, congrats to you and Marc Randazza and Jed Davis for this beautiful example of humanism and generosity. I find your words, "my goal for Michael Hawkins the young student was to keep him out of distracting litigation and get him back to studying stuff I’m too dumb to grasp", especially touching. I don't know about your dumbness of spirit, but greatness of spirit you certainly do have.

    I am kinda disappointed, though, that the settlement didn't include the obligation for the Maloneys to legally change their name to Mr. and Mrs. Baloney.

  2. M says:

    Something I've always wondered is how exactly filing or threatening baseless suits isn't a serious violation of any reasonable professional code of ethics?

  3. Tam says:

    You're doin' the Lord's work, here. Thank you.

  4. David says:

    @Joe
    Ken may be reached at Ken At Popehat Dot Com.
    The same pattern holds true for all bloggers here.

  5. Aaron Krowne says:

    You guys ain't seen nuthin' yet!

    How about being sued by an Indian tribe-linked money laundering operation AFTER it garnered the attention of Congress and was expressly outlawed?

    http://goo.gl/zVVcl

    The Maryland Federal court rejected our anti-SLAPP motion on the grounds that "bad faith had not been proven" (despite the overtly threatening nature of the plaintiff's response on our web site; later I received an email from the plaintiff that included "it doesn't matter if you're right or wrong, you have to pay me").

    The suit dragged on for three years, until my small media company ran out of money, I had to let my lawyer go, and defaulted in the case. Now I await default judgment, i.e., how much will I have to pay for being frivolously sued by an illegal business?

    As a result, when I was threatened a few weeks ago by a convicted, guilty-plea hedge fund felon (who did five years time), I had to comply and take down the brief, contributed article about him, because I have no money to fight additional SLAPP suits.

  6. Doug says:

    that demand package would terrify almost anyone. Except for the lack of a case number and the fact that buried in the complaint is the words "will not file", it sure looks like the real deal. The plaintiff's attorney should have known better than this. If we had bar disciplinary committees that did their job, we would have less of this junk happening.

  7. Guy says:

    Ken — thank you. It annoys me to no end how people with varying amounts of legal sophistication will bully laypersons into doing things they are under no obligation to do. IMO it is exactly that sort of thing (well, amongst other things) that gives lawyers a bad rap. So thanks for being one of the good guys.

  8. Scott Jacobs says:

    So David, I can reach you at Ken at Popehat dot Com? :)

  9. Scott Jacobs says:

    Also, nicely done by all involved.

    And yeah, being told that a guy I was suing had Randazza on his legal team would cause me to foul my shorts.

  10. SPQR says:

    A primer on how to handle, Ken.

  11. Goober says:

    Maybe I'm just sick, but if Randazza had a hand in writing that letter, I want to read it badly. I'm supposing that out of some professional deferrence you haven't posted it here. I can't support that. You should be unprofessional and let us all read it. The snark is strong with Marko, and he makes me laugh. A lot.

  12. VPJ says:

    Nice work and congratulations to all involved. Also, I agree with Goober. Can you at least quote some of the Randazza lines so that we may have our fix?

  13. Thank you, Ken. I really appreciate this.

    As for the quotes, as both a layperson and the client it would not be prudent for me to divulge specifics, but needless to say, the line included above is certainly mild by Marc's standards.

  14. Christina says:

    Kudos on your success protecting freedom of speech, but can I ask why common courtesy doesn't apply in these situations? Why one might challenge naturopathy and write about that, but refrain from directly attacking people and their belief system? After all, something like 25-35% of the global population is about to celebrate the completely non-empirical virgin birth of a baby who is simultaneously the one true god. It's obviously pretty normal as far as the human condition is concerned to live life without reference to the scientific method, and we don't go around mocking and attacking on a personal level. Does your crusading scientist attack all individuals promoting non-proven actions?

    Because he might remember that the truly bizarre, "quack" procedure of burning mugwort on the toenail has been scientifically proven to have a positive impact on turning breech babies prior to birth. (Moxibustion, part of the eastern medical tradition, presented in JAMA 1998.) Or alternately might take note that people continue to demand PSA tests and mammograms, despite their general efficiacy having been clinically *disproven* (and widely reported), ditto with Caesarean sections at their current rate (over 35% when true effective rate is under 10%). So even in scientific western medicine, most people don't care so much about the science part and rely instead on a great deal of faith and unproven belief (and what's trendy as reported in the media).

    Question: Does an anti-SLAPP lawyer also advise their clients on a more nuanced application of fundamental rights, knowing that the indiscriminate and wild sowing of said rights is precisely what makes government and individuals alike try to repress them? Something along the lines of, even though one has a blowtorch, one still might light a candle with a match? (Vis a vis such publications as _Rights Gone Wrong_ by Richard Thompson.)

  15. PLW says:

    If you think someone is being rude… the proper response is to call them out, first privately and then publicly if required, not to sue them or threaten to sue them.

  16. Ken says:

    Well, Christina, some of the same bloggers vigorously calling Maloney a quack are also the most critical of Christian influence on Western culture, so I'm not sure the line of argument "don't say 'quack' if you wouldn't say 'Jesus freak'" is going to be persuasive to them.

    I am perfectly in favor of a robust dialogue about courtesy, common or otherwise. The legitimate venue for that dialogue includes the internet, newspapers, books, etc. But a threatened lawsuit is not part of a dialogue about courtesy, or about whether it "applies." Rather, it's an attempt to subvert the power of the state to punish criticism — or, if you like, to use force to impose your views of courtesy onto others.

    I'm sure there might be any number of defenses of specific non-traditional or non-Western medical approaches that could be argued articulately. So, argue them! Nothing prevents Maloney, and other practitioners of approaches like naturopathy, from entering the marketplace of ideas and winning converts.

    It is not, in fact, my job as an anti-SLAPP lawyer to convince my clients to be well-mannered. It is my job to tell them that more vivid language is more likely to draw an angry and ill-considered lawsuit, but it's their choice what to do with that information. Also, I utterly reject the notion that I should be advising anyone to be more polite because impolite behavior might invoke more government or private censorship. That's self-censorship. I'll advise them to avoid defamatory statements, but I won't police their manners. Censors will find a justification to censor.

    I also find the entire injection of the issue of manners somewhat off-putting in this context, frankly, when a state legislator has pursued a plainly abusive SLAPP threat against a blogger. What would you say if I posted about a successful prosecution of a wife-beater, and someone came in and said "Congrats to the prosecutor on that victory, but could we talk about whether wives could get dinner on the table on time and not talk back so much?"

  17. Christina says:

    PLW, there isn't any information about whether or not the threatened lawsuit was the first action, so I can't judge that, but I certainly agree that courtesy in the other direction would demand other paths be traveled first.

    Ken, I'm just curious about your thoughts about the relationship between the indiscriminate application of rights by individuals and restrictions of said rights by the government. Do you, for example, disagree with Holmes's rationale in Schenck? Is self-censorship an important component of keeping the system of rights functional, and would we therefore have an obligation to self-censor?

    I'm afraid I don't see the parallels in your domestic abuse analogy, although my brain is filled with a lot of extraneous pre-departure data right now so I grant it may be glaringly obvious :-) A wife-beater is doing something illegal in response to something legal (given your example of being late with dinner), whereas of course your client was doing something perfectly legal in response to something else not only perfectly legal, but completely in line with normal human behavior.

    I stepped in with a comment because the confrontation of rabid scientists is a bit of a pet issue of mine. Whether or not the quack-hunters are also aggressive atheists, many of them are completely unable to have any perspective about science. In this sense they are just as bad as those they tend to attack. Science can offer no judgment about that which it has not studied. (Moxibustion was very much considered quackery prior to the Office of Alternative and Complementary Medicine (might be reverse adjectives) funding the study). And of course, science is very subjective in what it chooses to study, while medical science in many respects hardly deserves the scientific label since it so heavily commercialized. Naturopathy has firm roots in pharmacology, though research into which plants have true impacts and which do not is not funded, and I completely grant that there are disproven components which are nevertheless practiced. (Which doesn't stop people from using them, even in the western evidence-based paradigm, primarily because of the scientifically proven placebo effect.)

  18. Ken says:

    Respectfully, Christina, I think you have the analogy mixed up. The wife-beater is doing something illegal in response to something legal. The SLAPP-threatener is threatening to do something unethical and actionable (filing a malicious and bogus suit) in response to something legal (criticism).

    Yes, I disagree with Holmes in Schenck, a decision that is now seen almost universally as awful, hasn't been good law for three-quarters of a century, and which spurred the tedious "fire in a crowded theater" quote that everyone mis-uses. And no, I don't think the theory "it's not Constitutional for the government to stop me from saying this, but if I say it they may try, so I have a free-speech-defending obligation not to say it" is reasonable or coherent.

    I have no doubt that some doctors and scientists — like everyone else — can tout the scientific method while being persnickety about turning it critically on their own beliefs. I'd like you to be able to say all sorts of terrible things about their tendency to do that — using vivid language — without fearing that you'll be the subject of a malicious and frivolous lawsuit seeking to silence you.

  19. Scott Jacobs says:

    PLW, there isn’t any information about whether or not the threatened lawsuit was the first action,

    Likely because you were too damned lazy to click on links to Mr Hawkins' blog.

    Oh, I'm sorry. Was that rude of me?

    Tough titties.

  20. Sri says:

    Thank you for taking a stand and supporting Michael Hawkins. I know this is not the intent but if i ever need or know of someone needing paid legal counsel, you all are on top of the list. Thank you again for allowing me some faith in the legal system.

  21. Dr. Bob says:

    Har har. He had to get his wife to fight his battles for him. What a bozo.

  22. Christina says:

    Hi Scott, noticed you were here. Just busy packing, but I prefer my imperfections to yours: I'd rather be busy than a jackass, and my titties are soft and floppy. Happy holidays!

  23. SPQR says:

    Whether or not the quack-hunters are also aggressive atheists, many of them are completely unable to have any perspective about science.

    Christina, as a moderator of the website http://www.debunkers.org, I find your comment to be a rude attack on us quack-hunters.

    Does that get me the special privileges you seem to want to award to those so attacked? Can I censor your comments?

  24. Christina says:

    SPQR, I haven't advocated "special privileges" for anyone and I certainly haven't advocated censorship. I simply support a much more cooperative and community-building approach to life is perhaps normative in a forum that focuses primarily on the adversarial legal process. Do people (of any position) really need to be so vindictive in proselytizing their position as to personally attack individuals rather than base their case on the analytical merits of the argument? Does Westboro Baptist, for example, really need to attend and attack private funerals to publicize their message? Is there a role for what Ken calls "self-censorship", what I would call civility in discourse?

    I make these observations from inside "the movement" so to speak, as I am myself an atheist and a proponent of evidence-based action and through those principles have been around debunkers my entire adult life. But the level of immoderation and intolerance and even non-scientific thought and argument within that movement is appalling.

    I'm off to have a late lunch before loading up the car. I'm sorry I can't stick around to participate further. Happy new year at least to you all, and other holidays as you choose!

  25. My fee-fees are hurt by what Christina said.

  26. Ken says:

    Christina,

    Certainly there is a place for civility — as a personal choice, with social consequences. If I am rude to you, you avoid me, and people who hear about it probably avoid me as well. I then have to live with social consequences — and with my view of myself — if I persist in rudeness.

    Similarly, as more flies are caught with honey than with vinegar, in disputes among (for instance) mainstream and non-mainstream medical advocates, people who don't say "quack!" might convince more readers than those who don't. Or, perhaps, not.

    But it's not a question of "need." To paraphrase Clint Eastwood, "need" has nothing to do with it.

    I have no problem with people using a cooperative and community-building approach to life. But the legal system eats cooperative and community-building people for lunch. And "stop criticizing me or I will sue" is not community-building. It is, in fact, attempting to manipulate the legal system — often, as here, against people with less power — in order to stifle discussion.

  27. Josh Slocum says:

    Fine, fine work gentleman.

    As a public service, I wish to point out a phenomenon that's in desperate need of a name parallel to Godwin's Law. Christina, above, advocates manners. She wants people to build communities. Civility is very important to her. She likely considers herself a nice person.

    And then. . . . she says "rabid" scientists. It's fascinating. It's almost universally true that those who plead for niceness (actually, they're pleading for deference to privilege) turn out to say the most vicious things about the people they claim are Not Nice.

  28. VRaverna says:

    Common courtesy also includes not going to a blog post that cheer victory against SLAPP suit and post comments to"attacking" the blogger and spoil the cheering mood. :)

  29. For the record, I would call anyone advocating naturopathy a quack, not just Maloney. I don't consider that particularly "personal", at least not in a meaningful sense. Of course, my comments on many of his actions – his responding to everything ever posted about him on the Internet, his seeking out fights in places that have nothing to do with him, his threat of a frivolous lawsuit – do work into the realm of the personal. But then, they are things he personally did.

    To the broader issue of being civil, there is a place for that at times. This is not one of those times. Being civil to things like the idea of alternative medicine leads people to believe it has some sort of legitimacy. It doesn't. Let's look to a recent briefing from the White House secretary:

    http://www.youtube.com/watch?v=PL0YASQ8EJ8

    Imagine if he actually answered that. It would have sparked more than a little mockery on Comedy Central; news organizations would have actually discussed it. It would still be viewed as generally stupid (I hope), but it wouldn't be something that is only on YouTube by virtue of some guy with a camera phone.

  30. George Newhouse says:

    Well done Ken. As your admiring partner, i can't say i am surprised but do have a questions: exactly when, if at all, do you sleep? There is some much injustice out there, so much inanity, and so little time. Thank goodness for principles. On to the next battle. How about taking on corrupt bankrutpcy trustees?

  31. F says:

    Christina:

    I hope that if I am direct, I am not also too rude.

    there isn’t any information about whether or not the threatened lawsuit was the first action

    Considering it was mentioned: How long this has been going on, hints at the number and prominence of bloggers who have addressed this, references to search engine results (a key factor in the making of the legal threat no less); it didn't occur to you to use a search engine? I know you were busy packing since you were quick to remind us, but not too busy to continue commenting.

    medical science in many respects hardly deserves the scientific label since it so heavily commercializedNaturopathy has firm roots in pharmacology

    I'll leave it as an exercise to you and other readers to guess what the double lolwut is there.

    (Moxibustion was very much considered quackery prior to the Office of Alternative and Complementary Medicine (might be reverse adjectives) funding the study)

    Could we have a citation or even a pointer on which organization this is, and what studies determined moxibustion is supposedly good for?

    Was it this
    http://nccam.nih.gov/
    or this
    http://www.cancer.gov/cam/index.html
    or somewhere else? (Those two are just in the States.)

    I've seen the abstracts for a couple of non-replicated studies on a fistfull of rats, but that's about it. And I don't trust the pharma-medico industrial complex any more than you seem to indicate that you do. I distrust medically and scientifically illiterate quacks who push random folk treatments for their own commercial gain even more.

    And even if moxibustion is medically applicable in some circumstance, you can hardly blame people for considering it quackery overall.

    Practitioners use moxa to warm regions and acupuncture points with the intention of stimulating circulation through the points and inducing a smoother flow of blood and qi. It is believed by some, for example (Encyclopedia of Alternative Medicine by Clare Hanrahan), that mugwort acts as an emmenagogue, meaning that it stimulates blood-flow in the pelvic area and uterus. It is claimed that moxibustion militates against cold and dampness in the body and can serve to turn breech babies.

    Practitioners consider moxibustion to be especially effective in the treatment of chronic problems, "deficient conditions" (weakness), and gerontology.

    https://en.wikipedia.org/wiki/Moxibustion#Theory_and_practice

    Off to have my chakras aligned and qi adjusted to help me recover from my brainectomy.

  32. Scott Jacobs says:

    No, Michael, we just add to Mr Maloney's list of titled one of my personal favorites: "Censorous Twatwaffle".

  33. Ken says:

    I have no problem with people disagreeing with Christina, as I do. However, guests choosing their tone might want to consider I've known her for 25 years and am unlikely to view her as a terrible person just because we disagree vigorously. Please note this is not a legal threat.

  34. Scott Jacobs says:

    However, guests choosing their tone might want to consider I’ve known her for 25 years

    So we should be nice because she has suffered for 25 years?

    And any further questions I might have will just be left unasked.

  35. Ken says:

    So we should be nice because she has suffered for 25 years?

    See, that's the kind of abuse we like around here — friendly funny, and/or justified.

  36. Suzanne says:

    What I can't get over is that his wife is a State Legislator. I may not care much for my state representatives, but I'm sure glad I'm not represented by someone with that level of "understanding" of the law (or contempt of it).
    I know, nothing a politician does should surprise me anymore.

  37. Library Nachos says:

    Well, I've forwarded this to all of my friends up there in that increasingly bassackwards state (I still have family up there so I get to hear all about it). I have politely asked that anybody that lives in her district please not vote for her. It seems to have spread quite widely among the Bookfacerati. I will probably re-send during the next election cycle just to be sure.

    See? The system works?

  38. In response to my previous post, it's obvious now, but I'm anal retentive: I meant to say 'let's look to that White House briefing for a comparison, i.e., something ridiculous that would have been taken seriously if it got an initial serious response.

    Anyway.

    Library, I believe a man by the name of Nate Fellows (with whom I had a few beers this evening, in fact) will be running for Mrs. Maloney's seat. His politics run very counter to mine (he's staunchly libertarian and anti-everything-to-do-with-government), but he isn't one to support alternative medicine.

  39. Nate says:

    Oh indeed I will be. I actually support access to alternative medicine, in so far as: if people still want it after they know what they are getting, which is nonsense, they should be able to.

  40. Julia Sheehy says:

    I wish so very heartily and bitterly that my last employer and coworkers there named in a 'defamation of character suit' had contacted you or Marc Randazza (ideally both). I left that experience with a foul taste for the law and all practitioners. Thank you for restoring some of my faith, reading this made my day.

  41. Thank you for defending freedom of speech and fighting legal
    intimidation. I have one suggestion about a side issue you might not
    have considered: to avoid the misleading term "IP", which appears in
    the article.

    It's misleading because it lumps together many laws that are totally
    different in practice. The resulting confusion lends itself perfectly
    to intimidation by vague threats.

    See http://www.gnu.org/philosophy/not-ipr.html.

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