Kathleen Seidel of the blog Neurodiversity has an update on attorney Clifford Shoemaker's response to the court's Order to Show Cause why he should not be sanctioned for the clearly harassing and retaliatory subpoena he served on her in service of his client, vaccine opponent Lisa Sykes. Previous blogging on the subject here, here, and here.
The response is breathtaking in its fatuity and its unapologetic hostility towards individual and journalistic freedom of expression.
Shoemaker's excuse for issuing an everything-and-the-kitchen-sink subpoena to a blogger who criticized him, his clients, and his case amounts to criticism is unlawful harassment. Shoemaker (and his client Lisa Sykes and pet expert Mark Geier) goes as far as to accuse Seidel of a conspiracy to violate civil rights in violation of 18 U.S.C. section 1985(2), which provides:
If two or more persons in any State or Territory conspire to deter, by force, intimidation, or threat, any party or witness in any court of the United States from attending such court, or from testifying to any matter pending therein, freely, fully, and truthfully, or to injure such party or witness in his person or property on account of his having so attended or testified, or to influence the verdict, presentment, or indictment of any grand or petit juror in any such court, or to injure such juror in his person or property on account of any verdict, presentment, or indictment lawfully assented to by him, or of his being or having been such juror; or if two or more persons conspire for the purpose of impeding, hindering, obstructing, or defeating, in any manner, the due course of justice in any State or Territory, with intent to deny to any citizen the equal protection of the laws, or to injure him or his property for lawfully enforcing, or attempting to enforce, the right of any person, or class of persons, to the equal protection of the laws; …. the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators.
This is, to be blunt, entirely lunatic. The behavior described by Shoemaker, Sykes, and Geier amounts to vigorous research, debate, and advocacy. They cite nothing that could exceed Seidel's First Amendment rights; their accusations of "harassment" are conclusory and, based on their elaborations, plainly amount to nothing more than bad-mouthing Sykes' case to a variety of people. The notion that this could rise to the level of a section 1985(2) violation is either a frivolous hail-Mary pass or simply nuts. Shoemaker's lawyers carefully crafted the response and found the most tepid description possible of the elements of section 1985(2). Other authority is far more specific. “The elements of a deterrence claim under section 1985(2) are: (1) a conspiracy, (2) to deter testimony by force or intimidation, and (3) injury to the plaintiff.” Timmerman v. U.S. Bank, N.A., 483 F.3d 1106 (10th Cir. 2007) (emphasis added). The notion that research, criticism, and advocacy can rise to the level of force or intimidation is ridiculous and offensive. Moreover, it appears to me that there is an as-of-yet unresolved conflict among the courts as to whether section 1985(2) also requires a racial motive, like the rest of section 1985 — an element that Shoemaker and Sykes clearly could not claim here. See, e.g., Magnum v. Archdiocese of Philadelphia, 253 Fed. Appx. 254 (3rd Cir 2007) (unpublished opinion).
Seidel sets forth Shoemaker's papers in full in her post; they're worth a read. The overall tone of them is akin to tax-protestor conspiracy-mongering; Seidel's competent research and investigation are cited as proof positive that she must be part of a conspiracy, apparently because a mere wife and mother couldn't pull such things off. Moreover, I was surprised to learn that Seidel's husband had single-handedly taken over Wikipedia in service of the conspiracy. That's a power couple!
As I've said before, I lack the scientific background to assess the biological claims raised by Sykes and her team. But this conduct — retaliating against public criticism with a harassing subpoena, then defending the subpoena with conspiracy twaddle — is the behavior of a crank, not the behavior of someone who should be taken seriously in a scientific or public policy discussion. Bravo to the judge who quashed the subpoena, and I'm hoping that Shoemaker will receive the sanctions he deserves. It's usually impossible to read much into scheduling orders from a judge, but at the very least the latest order — issued just hours after Shoemaker filed his conspiracy-theory justification — is not discouraging:
“Ms. Seidel need not respond to the ‘Response of Clifford J. Shoemaker… to the Order to Show Cause…’ However, she may respond if she chooses to do so on or before May 27, 2008.
Last 5 posts by Ken White
- Popehat Goes To The Opera: Un ballo in maschera - August 19th, 2017
- Department of Justice Uses Search Warrant To Get Data On Visitors to Anti-Trump Site - August 14th, 2017
- America At The End of All Hypotheticals - August 14th, 2017
- Lawsplainer: Why John Oliver Is Anti-Diversity Now - August 11th, 2017
- Anatomy of a Scam, Chapter 15: The Wheels, They Grind - August 10th, 2017