It's time for the Popehat Signal.
Today I light the signal to ask for help for a blogger who is being sued in federal court in Fort Worth for writing about and criticizing a thoroughly creepy AIDS denialist. By AIDS denialist, I mean someone who promotes the belief that HIV does not cause or lead to AIDS. The lawsuit is contemptible. The defendant needs help. Can you step up?
The abuse of the legal system to attack critics of junk science is not new. In fact, I submit that litigating to suppress criticism is a hallmark of the junk science community. AIDS denialist Celia Farber sued a critic and lost. The British Chiropractic Association sued Simon Singh and lost. Andrew Wakefield — whose fraudulent Lancet article led to an era of anti-vaccine nonsense — sued critics in Texas and lost. I helped a blogger in Maine threatened with a libel suit for calling a naturopath a quack. And then, of course, there were the legal threats of Marc Stephens, who was upset about criticism of the Burzynski Clinic; though that exchange did not lead to litigation, it did at least evoke my meager contribution to American letters.
In this case, the target of the abuse is a man named J. Todd Deshong, a blogger and HIV-positive AIDS activist. He's a vocal critic of AIDS denialism. The online back-and-forth between denialists and their critics is often — as you would expect — characterized by harsh rhetoric. DeShong himself is often the target of rough language, but hasn't sued anyone over it.
But Clark Baker has. Baker — represented by Mark Weitz of Weitz Morgan PLLC in Austin, Texas — has filed a federal lawsuit against Deshong. I've uploaded it here for your inspection. In it, Baker and his business — the Office of Medical and Scientific Justice, Inc. — sue Deshong for trademark infringement, defamation, "business disparagement," and for injunctive relief.
Who is Clark Barker?
Well, he used to be a police officer. He was convicted of battery on the allegation he assaulted a jaywalker; that conviction was overturned based on misconduct by the prosecutor, who gratuitously and unethically invoked the Rodney King incident. Now he's a private investigator and runs the "Office of Medical and Scientific Justice," which provides, among other things, help to people accused of endangering sexual partners by failing to disclose HIV or AIDS status:
OMSJ’s HIV Innocence Group provides leading-edge medical, scientific, legal and investigative expertise to attorneys who represent defendants accused of HIV/HEP-related cases. Since 2009, OMSJ has successfully defended dozens of criminal and military defendants who were wrongly accused of exposing others to the Human Immunodeficiency Virus (HIV).
Clark Baker is also an active blogger, forcefully stating his views about politics and science. He has blogged specifically and vigorously about Mr. Deshong, criticizing and insulting him and complaining about his rhetoric.1 Mr. Baker's approach is to describe criticism and controversy as "intimidation" and abuse, and characterize critics as "goons":
But when investigators and their witnesses discuss these issues online, Fauci's goons dispatch people like Jeffrey to disrupt, embarrass, and intimidate those witnesses. And because of their psychological disposition, crazies are assumed not to possess the mental capacity to commit crimes – which makes it difficult to hold them accountable in criminal or civil courts.
As a 45-year-old single man who has no meaningful or spiritual life, assets, profession, or prospects, Jeffrey lives alone with his mother in her small Texas rental. Like the unloved target of a child molester, Jeffrey was easily seduced and exploited by Moore and other goons who reward Jeffrey with the love and respect he cannot find in normal healthy relationships. In return, Jeffrey attacks and disrupts forums and participants – poisoning the well and making those who argue with him look silly.
You would think someone willing to throw elbows like that would not mewl when struck back. But the lawsuit shows that Mr. Baker is the most despised inhabitant of the internet playground: the bully who can dish it out, but can't take it.
Mr. Baker is also very upset when people like Mr. Deshong criticize homophobic elements of AIDS denialism. He uses the opportunity to paint a picture of gays in conspiracy with Big Pharma:
Gay activism has been tied to HIV from the beginning. When the AIDS hysteria of 1983 fizzled to mortality levels of .0076% in 1986, CDC officials began to worry that taxpayers wouldn’t fund treatment for a small number of sick men. Drug makers needed activists to push drugs while the CDC needed sick men. To make that happen, drug companies sponsored dance parties where thousands of men were recruited in baptisms of depravity
. . . and so on, like that.
Mr. Baker's conduct is not limited to his critics themselves. I interviews Mr. Deshong's mother, a sweet lady with a spine of Texas steel. She told me about how Mr. Baker called her out of the blue and ranted at her. Mr. Baker angrily denounced her son, and told her that, as a police officer, he knew about dangerous people, and that Ms. DeShong should fear that her son would kill her in her sleep. He also threatened that he was arranging for doctors Mr. DeShong had criticized to sue him for defamation. Ms. Deshong pointed out that such a suit would bring no joy; Todd Deshong is not a rich man. "But you have money, right? You have a house, right?" responded Mr. Baker, implying that he might put her assets at risk. "He thought he could intimidate me. He didn't know who he was dealing with," said Ms. Deshong, who sounds like a good person to have at your back.
So how can he be suing someone for defamation over criticism?
Because, in our legal system, anyone can sue anyone for anything, in an effort to suppress and retaliate against speech, and there are seldom consequences — unless people like you, gentle readers, step up to help call out their bad behavior (and the bad behavior of their lawyers) and help ease the cost of their defense against malicious claims.
Baker's suit is highly defensible, and likely sanctionable.
The trademark claim is based on Deshong's use of "HIV Innocence Group" to criticize Clark Baker's activities. Baker lost that argument conclusively before a Uniform Domain Name Resolution panel:
The Panel finds Complainant has engaged in reverse domain name hijacking because it was clear Respondent was legitimately using Complainant’s mark to make a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue. Complainant clearly knew this before it began this proceeding. Complainant did not disclose this obvious fact in its Complaint.
Mr. Baker is bitter at that result:
Unfortunately, the arbitration body had no expertise in trademark or trade name infringement and allowed Deshong’s unsupported assertions of good faith usage to stand.
Mr. Baker's defamation and "business disparagement" claims are premised on a combination of vague characterizations of Mr. Deshong's speech or explicit references to statements of opinion and advocacy. For instance:
Deshong’s stated purpose is not informational or in any way fair use. He admits in writing on-line that his purpose it to “deconstruct” the HIV INNOCENCE GROUP. He states that his goal is the economic destruction of Clark Baker and OMSJ. In his own words he states, “It is therefore the sole purpose of this site to provide the general public, and attorneys seeking Baker’s help, and any interested parties, the proof that Clark Baker’s Innocence project, now called the Innocence Group is a useless tool of AIDS denialist propaganda.” This stated purpose undermines any notion that the confusion Deshong causes and the infringement of OMSJ’s trade name is for any fair use or enjoys any protection thereunder. The admitted purpose is to economically destroy Baker and OMSJ.
Some are suspiciously vague. Remember what we say here: vagueness in defamation claims is the hallmark of meritless thuggery:
November 2, 2011: In an effort to discredit Baker and OMSJ Deshong attempts to undermine a legal victory in a case in Florida when again he has no factual or legal basis to do so.
Sometimes Mr. Baker suggests that Mr. Deshong should be liable because his science is wrong, or because he is part of a Big Pharma conspiracy:
December 13, 2011: In an effort to disparage OMSJ, Deshong attacks both Bakerand OMSJ in what he calls “Debunking Clark Baker’s Analysis of Flow Cytometry: PartI.” The post is revealing for two reasons. First, it lacks any objective support for theallegations made therein. Second, it demonstrates that Deshong is working forpharmaceutical companies and/or physicians who need to attack OMSJ’s position at ascientific and academic level that is beyond Deshong’s expertise.
Mr. Baker is furious that Mr. Deshong tries to get others involved:
March 5, 2012: In an effort to have someone else do some research as to the defamatory and unsubstantiated claims made in his web-site, Deshong offers a $1,000 reward for information to support seven statements made by OMSJ. What Deshong is trying to do is use the fact that he has no objective evidence to support the defamatory statements made against Baker and OMSJ to his advantage by making it appear that he has made a prima facie case that Baker and OMSJ are not telling the truth and then offering money he does not have as a reward to anyone that can substantiate Baker and OMSJ’s claims.
Finally, Mr. Baker reveals the core of his: he thinks Mr. Deshong should not be allowed to say that AIDS denialism is a hoax:
They allege that Plaintiff Baker is incompetent, that he knowingly makes false and misleading representations to the public, that his legal and scientific theories with regard to HIV are a hoax, that Baker’s reputation as a former LAPD police officer is misleading, and other personally disparaging remarks.
Texas has an an excellent anti-SLAPP statute; it appears that its application in federal court has not yet been resolved. Someone helping Mr. Deshong should take a shot. It may also be worthwhile to attack federal jurisdiction over the state claims, an approach that is sometimes successful, especially where the issues involved in the state claims (like adjudicating AIDS denialism!) are likely to overcome the purported federal issues. It may also be worth attacking the damages allegations for purposes of diversity jurisdiction; though Baker claims his entity has suffered, its tax records show donations increasing.
Todd Deshong needs help. He's being sued for attacking junk science; he's being sued by the sort of loathsome nutter who threatens the mothers of critics. Your freedom to speak without fear of censorious and frivolous litigation chilling you depends on the willingness of people to step up in situations like this. If nobody helps Todd Deshong, then anybody can be driven to penury by a flawed legal system that serves as a vehicle for despicable and un-American censorship by lunatics of every stripe. If you're a Texas lawyer, please consider helping. If you know Texas lawyers, please bring this to their attention. If you have an online presence, please tell this story — and research Clark Baker's behavior yourself. Clark Baker and his lawyer should experience the social consequences of their actions — help be a part of those social consequences. Step up for free speech.
Update: Strong offers from lawyers already. But please keep them coming — a team would be great.
Postscript: Dear Mr. Baker: it occurs to me that I have not provided information necessary for your favored mode of rebuttal. Alas, God rest her, my mother has passed. However, you may threaten her grave at Forest Lawn Memorial Park, which is convenient to the Glendale and Golden State freeways.
- I printed those pages just in case the posts mysteriously disappear. ▲
Last 5 posts by Ken White
- No, The Grand Junction Daily Sentinel Shouldn't Sue Over "Fake News" - February 20th, 2017
- Lawsplainer: The Eleventh Circuit Protects Doctors' Right To Ask About Guns - February 17th, 2017
- Eleventh Circuit Revisits Florida Law Banning Doctors From Asking About Guns, And I Can't Even - February 16th, 2017
- Erdoğan and the European View of Free Speech - February 10th, 2017
- Still Annoying After All These Years: A Petty Government Story - February 9th, 2017