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