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Aug 26 2013

More foot-gunning in the Shermer debacle

John Loftus, ex Freethought Blogger who left because not enough Christians were engaging with his posts so he could convert them, who subsequently founded and then left Skeptic Ink for the same reason, is now blogging at his original Blogspot blog about PZ Myers and Michael Shermer. (A hint, good sir — you may want to actually target your intended audience with your posts.) In his post, wherein the only possible reasons he proffers that PZ Myers might have published the rape allegation — made against Michael Shermer by an unnamed source whom he trusts — involve either naivety or malice, Loftus published the following addendum:

In a personal email to me Shermer categorically denies these accusations. If what he said about his accuser gets out, it will be apparent to most all reasonable people that PZ Myers published a bold-faced lie. He recklessly tried to destroy another person’s reputation without regard for fact-checking.


As Stephanie Zvan asked, what could Shermer have possibly said that would make it so that just by his mere refutation, his innocence would be so patently true that it would be like a lightning bolt revelation from on high, that the accuser would be so tarnished by only what he told you that she could not possibly be correct under any circumstances? But there’s another layer to this, beyond Stephanie’s justified anger at this patently immoral and empathy-free defense: Shermer’s lawyer could not possibly have vetted this statement. The reason for that is fairly obvious, but Ace of Sevens explains quite succinctly:

If I understand the legal situation here, Shermer may rattle a bit, but doesn’t want to name his accuser.

* The main thing he has going for him in a defamation suit against PZ is it’s hard for PZ to prove his story is true while protecting his source’s identity. Prove that someone really did tell PZ that Shermer raped her and the case won’t survive summary judgment. He could sue her instead, but she’s probably not famous and he’d have less to gain.
* To add to the above, Shermer seems to be admitting that he knows someone really did accuse him and PZ didn’t just make it up. That goes against the narrative in his cease-and-desist letters and that most of Shermer’s defenders are using. If he admits PZ was repeating an accusation that was was actually made and acted in good faith, his whole case falls apart without PZ naming anyone. I hope PZ’s lawyer is aware of this communication.
* If the accuser is identified, he loses the main thing holding her back from giving more details, which will probably only serve to make Shermer look worse. Right now, he can pass this off as a vague, anonymous accusation and he’s better off if it stays that way. Outing her would be a Pyrrhic victory at best.
* Plus he could get sued for defamation himself if he tries publicly humiliating her. He’s a public figure and she probably isn’t, so he’d be in more legal danger.
* My suspicion is that Shermer doesn’t know who the accuser is, but has a strong suspicion. This is an attempt to intimidate her by making her think that’s he’s identified her and keep her from coming forward with any more to avoid reprisal. His slimy insinuation that he could cause serious damage is correct, but it wouldn’t work out well for him either, so this is hopefully just a bluff.

Emphasis mine. And — SPOILERS for the end of my post — Shermer has apparently since walked back what he said to Loftus.

Bearing in mind that I am not a lawyer, by my understanding, this is the lynchpin of Shermer’s case: defamation generally requires the information provided be false. PZ Myers reported that someone he knows had accused Shermer of sexual assault. If Shermer does know of someone who has made such an accusation, then PZ Myers reported the truth. Does it matter whether or not the actual allegation is true at that point? From the legal case against PZ, I’m going to guess absolutely not. A case against the accuser might hinge on the truth of her claims of being assaulted, though. PZ avowed that he had no way of knowing whether or not the allegations were true, but he felt it absolutely morally imperative that because he trusted the victim, the information needed disseminating, in order to keep others from potentially being victimized — with the acknowledgement that he was doing so at personal cost.

In much the same way as we skeptics warn others of the potential harm of psychics, medical charlatans, and other con artists, even in absentia of these people being legally tried and convicted, we humans generally want to warn others of potential breaches of our trust. That is, after all, how reasonable people deal with credible allegations which are multiply corroborated by others, if they have a functioning sense of empathy and an ability to look at the statistics regarding false allegations for a particular crime and decide, on balance of probability and weight of the corroborated parts, the allegations have a chance of being be true.

I don’t think Shermer’s lawyers were particularly happy about this though, because Loftus later reports, in reply to someone asking directly if Shermer knew who his accuser was:

Initially he didn’t. Then he thought about it and thought he did. Now he tells me he doesn’t. Don’t make too much of this. He’s trying to guess, that’s all, just as anyone would.

Either Shermer does know who has accused him, or he’s decided that it might not be the person he originally tried to nut-and-slut to Loftus. If the former, PZ walks; if the latter, there’s an acknowledgement that more than one person has said the same thing about him. Are there any lawyers in the house who can confirm my suspicions here?

Regardless of whether I’m right or not, Shermer, some advice for what my advice is worth: stop talking. You are NOT helping your case. You might be inflaming your fanbase but you’re seriously undercutting your own credibility and possibly wrecking any case you have. Save it for the courtroom, for your own sake.

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  1. 1
    Ace of Sevens

    I’m not a lawyer either, but I did take law-school level courses on business law and art law. My understanding is he could still have a case against PZ even if PZ were accurately reporting that he was told. However, in that case, he would have to prove that PZ believed or strongly suspected the accusations were false. This is pretty much impossible to prove.

    The only cases I’m aware of where anyone won with this argument involved major newspapers going after relatively minor figures with allegations that were so off the wall, it wasn’t credible that they could have a good faith belief they were true. Can’t recall case names off hand, but one was a newspaper that reported a source had told them they picked up a payphone and were accidentally connected to a call between a college football coach and a bookie who were discussing throwing a game and a student photojournalist who was accused of being an Iranian spy and killing Bobby Kennedy with a camera disguised as a gun.

    Since there’s nothing prima facie implausible about the accusations against Shermer, the source was clearly in a position to know and Shermer is a public figure, I don’t see how any case against PZ will get far unless he can argue that PZ made the whole thing up

  2. 2
    tuibguy

    This is a trial in the court of public opinion, of course, and perhaps Shermer will realize that he will never recover the portion of the fanbase that he has lost because of this. Me, I put myself in the “Goddammit, Mike, I was a fan!” camp. I am no longer.

    Knowing PZ, even to the limited extent that I do, the one thing that I do trust is his integrity and if he says someone gave him information harmful to Shermer, then I have no reason based on my experience to doubt that he got this information.

    The important thing to me is that there are likely women in the skeptical movement now who will not be raped because this is public knowledge. That makes it worth it.

  3. 3
    Al Dente

    Shermer, some advice for what my advice is worth: stop talking.

    Shermer’s ego is too massive to take this obvious advice. I have no doubt his lawyer tells him that every time they talk but does Shermer listen? Not that anyone would notice.

  4. 4
    Ace of Sevens

    I think you have some lawyer readership. Hopefully, they’ll be along soon to correct me.

  5. 5
    Jason Thibeault

    Someone fire up the Rieux-Signal!

  6. 6
    otrame

    I seem to remember Shermer writing an essay or possibly a full book on the subject of how smart people can believe dumb things. I think we have here an example of a smart person doing really dumb things. I’m not talking about the alleged rapes and other sexual assault and harassment. I’m talking about how he won’t shut up. The interview with Ian what’s his name (I’m very tired tonight and you guys know who I am talking about) should have had his lawyers threatening to quit if he said one more word to anyone.

    The best part is I can see the scenario where he just talked to Loftus, looking for a friendly ear, and didn’t realize that Loftus was going spread it around. As for Loftus, his behavior is frankly appalling, both in publishing the threat ” If what he said about his accuser gets out” (whether that actually came form Shermer or Loftus himself) and his petulant, childish attack on PZ’s book. Another bright man acting very stupidly.

    It always troubles me when I see grown up, intelligent, well-educated people behaving in a way that would be shameful in a 15 year old.

  7. 7
    hjhornbeck

    Not a lawyer, but at least I know how to read Wikipedia. Ace of Sevens:

    The main thing he has going for him in a defamation suit against PZ is it’s hard for PZ to prove his story is true while protecting his source’s identity.

    A common line repeated by those opposed to Myers is that the Confrontation Clause would force him to out the unnamed accuser he’s protecting. There are three things wrong with that:

    1. The right to face your accuser only applies to criminal cases, and libel is a civil crime in the US.
    2. You might counter that while it’s true libel is civil, Shermer’s accuser is making a criminal allegation. Fair enough… except she isn’t bringing him to trial. She said she had no interest in pursuing a criminal case. With no case against Shermer, there’s no way to invoke the Confrontation Clause.
    3. Let’s say I’m wrong here, too. Even in a criminal case, however, the Confrontation Clause makes an exception when the accuser has been prevented from testifying by the accused. It’s a long shot, but if Myers’ lawyers can put up a good argument that Jane Doe was intimidated by Shermer, and could face retribution, the judge might revoke Shermer’s right to confront. Fortunately, actions like these go a long way to demonstrating intimidation and retribution.

  8. 8
    arthur

    “John Loftus, ex Freethought Blogger who left because not enough Christians were engaging with his posts so he could convert them”

    Is that true? Did Loftus leave for that reason?

  9. 9
    Ace of Sevens

    @7: Right, but you also can’t disclaim responsibility for defamatory statement by attributing them to unnamed sources. If you could, defamation law would be pretty meaningless. Here’s a good article on the subject http://www.rcfp.org/browse-media-law-resources/digital-journalists-legal-guide/limits-promising-confidentiality-0

  10. 10
    Ace of Sevens

    @8: That’s why Loftus says he left. The real reason seems to be that he was being a total classhole to Natalie Reed. He called her an affirmative action hire and said she wasn’t qualified to write here thanks to her mere BA in English, unlike him with his Master’s of Divinity. Then, no one took his side.

  11. 11
    Ace of Sevens

    Oops. Hit send early. Was going to say he then rage-quit.

  12. 12
    screechymonkey

    Basically, Ace of Sevens is correct.

    Technically, a person who “republishes” a defamatory statement can still be liable for defamation; prefacing a statement with “somebody told me that …” or words to that effect doesn’t immunize you.

    But the plaintiff still has to prove all of the elements of defamation against a “republisher” defendant, and in the case of a public figure that means “actual malice” under New York Times v. Sullivan. As Rieux has explained in some comments on one or more FtB blogs, that’s an unfortunately named phrase, because it suggests to laypeople (and even some lawyers who don’t understand defamation law) that it’s about a desire to hurt the plaintiff. As the actual case law makes clear though, “actual malice” in the context of defamation means “with knowledge of falsity or with reckless disregard for the truth.” And “reckless disregard” is a pretty high bar, too — just plain old sloppy journalistic technique doesn’t cut it, it basically has to be a kind of “sticking your head in the sand” attitude.

    So basically, as Ace says, Shermer would pretty much have to show that PZ either invented Jane Doe or knew that Jane Doe was lying. (I doubt that a bog-standard “bitchez be crazy” attack would meet reckless disregard.) If PZ was acting in reliance on information he believed, then even it that information turns out to be false, it wouldn’t matter whether his subjective intent was to protect convention-goers, or to be a big meanie to Shermer, or to get ALL THE BLOG HITZ!!!!

  13. 13
    Subtract Hominem, a product of Nauseam

    Is it bad that the main reason I clicked through to Loftus’ post (having read most of it quoted in various other places around the web) was to see if the rest of the title after the part shown in the URL was “Lord?”

  14. 14
    screechymonkey

    hjhornbeck@7:

    As you say, the whole Confrontation Clause thing is a big non sequitur given that the only actions being discussed are civil. The real issue would be civil discovery, which brings up some unique wrinkles dealing with anti-SLAPP laws that are probably not worth speculating about at this point.

  15. 15
    retired lawyer

    A person who repeats a defamatory statement is generally as responsible for the defamatory content as the original speaker.

    However, a public figure must show the defamatory statement was published with either knowledge of falsity or in reckless disregard for the truth.

  16. 16
    hjhornbeck

    Ace of Sevens @9:

    Right, but you also can’t disclaim responsibility for defamatory statement by attributing them to unnamed sources.

    It all depends on the sources. If you’ve investigated and found their story to be plausible, and can demonstrate that to a judge, then you cannot have libeled. The tricky part is what is considered “plausible.” While there is likely a fair bit of case law here to provide guidance, the judge’s opinion will also be a big factor. And given what we know about the justice system, well… there’s a reason PopeHat considered this case “interesting.”

    Myers also cannot point to any other accusations made after his own, as they could not have influenced his decision (unless he knew about them before hand, of course). Arguing no damage has been done by the accusation probably isn’t an option, either, as Shermer is likely famous enough to successfully argue for “per se.”

    On the other hand, Myers does have some nice escape routes:

    Statements made in a good faith and reasonable belief that they were true are generally treated the same as true statements; however, the court may inquire into the reasonableness of the belief. The degree of care expected will vary with the nature of the defendant: an ordinary person might safely rely on a single newspaper report, while the newspaper would be expected to carefully check multiple sources. [...]

    Fair comment on a matter of public interest, arguments made with an honest belief in their soundness on a matter of public interest (such as regarding official acts) are defendable against a defamation claim, even if such arguments are logically unsound; if a reasonable person could honestly entertain such an opinion, the statement is protected.

    And while I was worried the SlymePit’s catalog of grievances would be used against Myers, between my own reading, Rieux, and the opinions of other commenters, I’m now fairly convinced that libel has a narrow scope. In other words, Myers could march naked through the streets tossing poisonous squid at anyone he can reach, and it wouldn’t effect this case at all unless it directly effected his decision to publish the unnamed accusation. All the whispered rumours floating around the SlymePit amount to jack shit, in terms of evidence, unless they’ve managed to find something directly related to Myers’ statement that every commenter at FtB has missed.

    [Again, not a lawyer, so I could be wildly off the mark here.]

  17. 17
    left0ver1under

    My suspicion is that Shermer doesn’t know who the accuser is, but has a strong suspicion.

    He doesn’t know? How many women were there? Not to know would require more than one.

    The alleged crime is rape, not pickpocketing or shoplifting where an accused perpetrator is likely to forget where the crime was committed. Unless an accused rapist has multiple victims or the victim was a stranger (or…not gonna go there), I doubt the accused wouldn’t know or would forget.

  18. 18
    Pteryxx

    left0ver1under: According to Jane Doe’s account, she knows five more victims of the same technique; also there is at least one man – Dallas.

    The worst case scenario, as rumored, is ‘get a woman at every convention’ for however many years this has been going on.

  19. 19
    left0ver1under

    Pteryxx (#18)

    I’ve said very little on the topic here or elsewhere because I have no connection to those involved and what little I know about the situation is solely from what I’ve read. I don’t want to deal in supposition, never mind accusation.

    But if Shermer did say he doesn’t know who the accuser is, then it’s a bit like George Bush saying he did not use any illegal drugs since 1974. It leaves an obvious and unasked question that eventually will be asked.

    And yes, I did screw up the blockquote, forgetting to put in the slash. Whoops.

  20. 20
    Stephanie Zvan

    The worst case scenario, as rumored, is ‘get a woman at every convention’ for however many years this has been going on.

    While I can’t speak to how well Shermer met that supposed goal, the worst case isn’t quite that. He is famous enough that, along with the tales about harassment spread in back channels, there were also plenty of stories about willing women. So there’s that at least.

  21. 21
    Rieux

    Uh-oh: “Beetlejuice, Beetlejuice, Beetlejuice.”

    Look, I (an attorney with extensive litigation experience but—I have to reiterate—zero defamation litigation experience) am on record saying that Shermer’s legal case against PZ is extremely weak at best for reasons that have little-to-nothing to do with the question of whether PZ can prove that the allegation he quoted is true. You can dig up my initial long comment on Almost Diamonds, but anyway the upshot is that in order to prevail, Shermer would necessarily have to prove “actual malice” as that term-of-art is defined by the U.S. Supreme Court in New York Times v. Sullivan, and I seriously doubt that he can do that.

    I’m not sure that the notion that PZ made the whole thing up would be very helpful to Shermer, either. First, it just seems patently absurd: it’s fairly clear that Carrie Poppy has corroborated the existence of Jane Doe and her allegation (which is not the same thing, obviously, as corroborating the accuracy of that allegation), and if I understand correctly there’s at least one other person besides PZ, Poppy, and Doe who could say that and more about Doe and her allegation.

    Second, it’s certainly not true that Shermer would have to show that PZ fabricated the whole story in order to prove “actual malice”… though it would help an awful lot. If there were something about Ms. Doe’s story (or about her personally? Like Stephanie Zvan responding to Loftus, I’m finding it hard to come up with realistic ways to fill in that blank) indicating that it was very likely false—something that only a reckless person could disregard before heedlessly publishing the story—then that could suffice to prove “actual malice” even though Jane Doe is a real person with a real (though, in this hypothetical, probably false) story.

    In sum, though I suppose Shermer could allege that PZ made the whole thing up, that tactic would (I think) merely serve to increase the pain on all sides. PZ could presumably prove fairly easily that it’s nonsense, but he might not be able to do it without naming Doe. Shermer’s risk, meanwhile, is pretty much the one stated in the third bullet point (which I think makes more sense than the first two) from Ace of Sevens’ comment: drag Doe into the open, and you might very well not like everything she (and her corroborators) have to say.

    I don’t think the case hinges on the question of whether PZ made the story up. I don’t think anyone who’s taking the case seriously (including Shermer’s attorneys, who seem very competent AFAICT) could think that he did. It seems to me that the lawsuit, if it’s ever filed (and I doubt it will be), will be centrally about “actual malice,” and thus PZ’s alleged recklessness regarding the truth or falsity of what Jane Doe told him. Which means that it would boil down to the very issue that Loftus is (all too opaquely) writing about: there would have to be some unavoidable reason that no reasonable person could find Doe’s allegations credible.

    P.S. Oh hell yes, Shermer’s lawyers are telling him to STFU. And PZ’s should be telling him the same thing. To be all too sympathetic to Shermer, I imagine it’s very, very uncomfortable for someone who believes he’s been defamed (or who needs to give that impression?) to be prevented from getting his “side of the story” out; there would seem to be an obvious conflict between Shermer’s emotional/reputational interests, on the one hand, and his litigation interests, on the other.

    That is, alas, something we litigators have to deal with a lot more often than we’d like. Unfortunately, our clients have to live lives and transact business and communicate with their friends and the public even when we’d prefer that they just crawl into their cellars and remain incommunicado for the next ten years. Okay, five.

  22. 22
    Rieux

    I should say, I can think of absurd things that Shermer-via-Loftus could have in mind as factors that should have made it clear to PZ that Doe was lying: say, “It’s extremely well known that Jane Doe hasn’t left Mongolia for the last 30 years, and that Shermer’s never been there.”

    That would very likely suffice to show “actual malice” on PZ’s part. (Which makes it, uh, an instructive hypothetical?) The problem is that it’s ridiculous.

  23. 23
    Rieux

    hjhornbeck @7:

    A common line repeated by those opposed to Myers is that the Confrontation Clause would force him to out the unnamed accuser he’s protecting.

    Seriously? That’s a common line?

    No. Just no. Flatly absurd.

    To be clear, if Shermer sues PZ, it’s not at all implausible that he could force PZ or someone else (e.g., Carrie Poppy) to disclose Jane Doe’s name. (Though, for the reasons Ace of Sevens suggests in the comment quoted in the OP, Shermer might not actually want to do that.) It’s even conceivable that Shermer could force her onto the witness stand. (Though I really doubt he wants that.) But regardless, the dad-blasted Confrontation Clause would have nothing to do with it.

    Sheesh.

  24. 24
    Ace of Sevens

    @Rieux: My thought was that if PZ made up the story, that would be prima facie evidence of actual malice. Presumably, this is why Shermer’s lawyer has been claiming this thusfar, despite it being a rather absurd theory. They could claim that PZ made the whole thing up and hope he agrees to issue a retraction to protect his source. If he didn’t make Jane Doe up, then actual malice would be pretty much impossible to demonstrate, so they want to keep it around as a strong possibility.

  25. 25
    Rieux

    …And, as I continue reading down the thread, I see that screechymonkey and retired lawyer (who has clearly lost the knack: more words = more billable hours = more dough, Counselor!) have things well in hand. And hjhornbeck’s conclusions @16 make sense to me. Anyway, I’ll shut up now.

  26. 26
    shripathikamath

    Did PZ contact Shermer prior to throwing that grenade, and if not, why not make a simple query even if it was just to add “I asked Shermer to comment and he told me to fuck off”? I ask this because in all the snot that Loftus builds a verbose cesspool out of, this was the only question that I could not find an answer to.

    Anyone venture to guess or share if they know?

    Either Shermer does know who has accused him, or he’s decided that it might not be the person he originally tried to nut-and-slut to Loftus. If the former, PZ walks;

    It is not that complicated, really. There is nothing PZ said that was libelous. Stating that he had someone reveal something to him, which he then carefully states he has no way of knowing or proving, but is tempted to believe it, is not libel. There is no way Shermer wins any kind of a lawsuit, even if he is dumb enough to file one. There is NOTHING PZ wrote that amounts to libel in the least. No wonder Ken White is taking this on.

  27. 27
    Rieux

    Agh: so much for shutting up.

    @Rieux: My thought was that if PZ made up the story, that would be prima facie evidence of actual malice.

    Oh, sure. But it’s not a necessary showing. Your funny examples @1 are illustrations of alternatives. Hell if I know what analogous showing Shermer could make in this case.

    Presumably, this is why Shermer’s lawyer has been claiming this thusfar, despite it being a rather absurd theory.

    He has? I guess I missed that.

    Well, Shermer and his counsel wouldn’t be bound to any such representation in a pre-litigation letter. Until it shows up in a pleading (i.e., here, in the Complaint that initiates a lawsuit), it doesn’t mean much.

    If he didn’t make Jane Doe up, then actual malice would be pretty much impossible to demonstrate, so they want to keep it around as a strong possibility.

    I guess that makes more sense to me as a PR strategy than a litigation strategy (which is certainly not to say that PR strategies don’t matter in a case like this). I just can’t imagine that Shermer’s counsel seriously thinks that Jane Doe is fictional, or that asserting in court that she is would be anything but an extraordinarily risky plan.

  28. 28
    Stacy

    Did PZ contact Shermer prior to throwing that grenade, and if not, why not make a simple query even if it was just to add “I asked Shermer to comment and he told me to fuck off”? I ask this because in all the snot that Loftus builds a verbose cesspool out of, this was the only question that I could not find an answer to.

    Anyone venture to guess or share if they know?

    My guess: He didn’t, because he saw no point in it. Shermer would be sure to deny the accusation.

    ~ ~ ~

    Rieux: thanks for your informative comments. You too, Ace of Sevens.

  29. 29
    cityzenjane

    Shermer and his lawyers have to think pretty highly of themselves if they think actual malice in motivation was involved. Given the potential harm to PZ – for actually doing this maliciously…that would have to be a mighty passionate hate that PZ has for Shermer. I get the impression that Shermer has not had that kind of impact on PZ.

    Or for “blog hits”…. interesting that Shermer and co could imagine such a valueless and immoral scoundrel in PZ – who would attempt to “ruin” a man for ephemeral hits.

    Neither seem like an even remotely plausible motivation for someone as concerned with ethics as PZ…

    I don’t know who thinks Shermer has a good lawyer… as I read the C and D… I found the suggested motives….absurd.

  30. 30
    Ace of Sevens

    IIRC, the cease & desist letter PZ got claimed he made Jane Doe up. The link I posted earlier says there’s some precedent for assuming unnamed sources don’t exist unless you can demonstrate they do.

  31. 31
    mofa

    I agree with Ace of sevens @ 9, that is the way it is in Australia and Britain and (I imagine the USA would be no different. Jason, you are not a lawyer and therefore it is unwise to be giving legal advice to either side. What Freethought Blogs needs is its own lawyer, if it had one on the books a few weeks ago PZ would not have gotten himself into such hot water.

  32. 32
    Giliell, professional cynic -Ilk-

    Well, it seems to me that all the speculation about Shermer’s lawyers rests on the assumption that they actually think that they have a winnable case.
    Might also be true that they told him that they don’t think so but are willing to work for his money. They might actually be grateful for Shermer repeatedly shooting himself in the foot. Makes them look better…

    +++
    As for what he can “tell us about his accuser”:
    Unless it is something like “has never left Mongolia” or “didn’t actually go to any cons ever” I guess it’s the usual:
    -had sex with somebody before
    -just regrets it
    - has an axe to grind
    - doesn’t want to admit to her husband that she’s been unfaithful*
    etc…

    *I have a nasty feeling that targetting married woman is actually part of the strategy. You can shame a married woman much better into silence because she has so much more to lose.

  33. 33
    francesc

    @31
    “if it had one on the books a few weeks ago PZ would not have gotten himself into such hot water”
    I’m guessing here that PZ knew he would go into hot water and decided to do the right thing, anyway.

  34. 34
    Nick Gotts

    What Freethought Blogs needs is its own lawyer, if it had one on the books a few weeks ago PZ would not have gotten himself into such hot water. – mofa

    Crap. From the initial post, PZ clearly knew quite well that he was putting himself at risk, but felt ethically obliged to do so. But maybe that’s a completely inexplicable way to act as far as you are concerned.

  35. 35
    pneumo

    That water looks fairly tepid from where I’m standing.

  36. 36
    colnago80

    Re Rieux

    The big problem that Shermer would face if his attorneys actually filed a suit against PZ is discovery. Since he has to claim that his reputation has been damaged by PZ’s blog post, his reputation then becomes an issue and in discovery, PZ attorneys would have almost an open season on questioning Shermer. For instance, Shermer, when he participated in the RAM, has admitted that he took drugs to enhance his chances.

    I am not an attorney but I would quote the late celebrated attorney Louis Nizer who, in one of his books, stated that he always advises potential litigants not to sue as the damage to their reputations that might result from discovery could well be more damaging then the issue at hand.

  37. 37
    Marcus Ranum

    Did PZ contact Shermer prior to throwing that grenade, and if not, why not make a simple query even if it was just to add “I asked Shermer to comment and he told me to fuck off”?

    Because doing so can be cast as malicious and threatening. Malicious if you ask and he says “certainly not!” but you then go public anyway. Threatening if you don’t word it very carefully, and probably even then.

  38. 38
    drken

    Rich people (and corporations) sue middle class people (and corporations) to force the defendant to spend large sums of money in their defense. The cost of this lawsuit probably isn’t that great to Shermer (plus, he has a defense fund now) but I’m guessing PZ is less able to foot the bill. Lawyers are expensive and bankrupting PZ would send a message.

  39. 39
    leftwingfox

    Sorry, I know this may be perilously close to Devils advocacy, but this rubbed me the wrong way:

    He doesn’t know? How many women were there? Not to know would require more than one.

    Not necessarily. If the accusation is flat-out false, then he’d potentially have no idea who it was. Similarly, if it were an inflated claim, then his unethical (if legal) behaviour would lead to multiple regretful encounters.

    I hasten to add that on the balance of probability, I believe the accusations against him. I just don’t think that’s the nail in his coffin.

    That said, it’s amazing just how many people can’t simply take the advice “Dude, SHUT UP!” even when their reputation is on the line.

  40. 40
    Howard Bannister

    @leftwingfox:

    Or if his defense is “well, there was that one woman who had a small grievance and threatened to ruin my life with a false rape claim, which as you know, being a good MRA, always destroys a man’s life and has no repercussions on the woman’s life.”

    But, again, that only works if you have a nice counterfactual view of the world to pad it out.

  41. 41
    Pteryxx

    Did PZ contact Shermer prior to throwing that grenade, and if not, why not make a simple query even if it was just to add “I asked Shermer to comment and he told me to fuck off”?

    adding to Marcus Ranum @37… also, asking the other party to comment *about going public with something* can tip them off and give them time to pre-emptively create an alibi, smear, or counter-accusation to poison the well. I’ve had that happen, on a much smaller scale.

    Because doing so can be cast as malicious and threatening. Malicious if you ask and he says “certainly not!” but you then go public anyway. Threatening if you don’t word it very carefully, and probably even then.

    …So Shermer will be going after Ian Murphy then?

  42. 42
    Rieux

    drken @38:

    Rich people (and corporations) sue middle class people (and corporations) to force the defendant to spend large sums of money in their defense. The cost of this lawsuit probably isn’t that great to Shermer (plus, he has a defense fund now) but I’m guessing PZ is less able to foot the bill. Lawyers are expensive and bankrupting PZ would send a message.

    There’s a fair amount of truth to that in general terms, but I don’t think that’s how things would/will play out here.

    First, my understanding is that Popehat was/is arranging PZ pro bono representation. If that’s correct, it’ll cut down PZ’s costs enormously—potentially to $0. (Depends upon whether he’s on the hook for various and sundry expenses—for court fees, paying for witnesses’ time and mileage, etc.)

    Second, Shermer has hired a well known and presumably very expensive L.A. law firm, at least for the purpose of writing that initial demand letter. I have no direct information about what Timothy Neufeld‘s billing rate is, but given his profile I have to think it’s in the neighborhood of $500 an hour. If I’m anywhere close to right, that ballyhooed legal defense fund—which, at the moment, has collected a grand total of $1,843.00—would buy less than four hours of Neufeld’s time. If Shermer goes ahead with a lawsuit, he’ll burn through that fabulous fund in less than a week. …Of a process that will last for months, at least.

    For those reasons, I suspect that Shermer has more to lose financially from filing suit than PZ does… unless Shermer wins the case. Anyway, as long as (1) PZ has pro bono representation and (2) Shermer is represented by a major corporate firm, any protracted lawsuit will break Shermer’s bank looong before it will break PZ’s.

  43. 43
    Rieux

    cityzenjane @29:

    Shermer and his lawyers have to think pretty highly of themselves if they think actual malice in motivation was involved. Given the potential harm to PZ – for actually doing this maliciously…that would have to be a mighty passionate hate that PZ has for Shermer. I get the impression that Shermer has not had that kind of impact on PZ.

    (I guess this is my new SIWOTI trigger.) Nonono! Not malice—”actual malice.” It’s a legal term of art. It has no necessary connection to “doing thi[ng]s maliciously” or “passionate hate.”

    Damn that Supreme Court anyway, coming up with such confusing terminology. (Though, er, “malice aforethought” is likewise not about malice, and that term is a lot older than the U.S. Supreme Court.)

    mofa @31:

    What Freethought Blogs needs is its own lawyer, if it had one on the books a few weeks ago PZ would not have gotten himself into such hot water.

    If I had been FTB General Counsel (hey, sweet gig—but I fear it wouldn’t pay much), I would have advised PZ to be as damn sure as he could that Jane Doe’s story was credible. After that, I’d tell him he could go ahead and quote-post the story in exactly the way he actually did. I probably would have suggested that he and I talk to Ed Brayton before posting as well, but (1) quite possibly PZ did that anyway and (2) hell, Ed’s background is in newspapers, so again I think we’re looking at no change from what actually happened.

    By the way, I’m not counsel for FTB or anyone else involved here (I hope!), so absolutely no one should take anything I post on the internet, ever, as legal advice. Consult your own counsel. (Also smile at them and bring them thoughtful gifts.)

    mofa, I gather you haven’t been following the discussion about the legal angles on this case very closely, but the considerable weight of the professional opinion appears to me to be to the effect that Shermer’s chances of winning the threatened lawsuit are poor. Given that, the “water” does indeed seem to be lukewarm at best. More to the point, given a second chance I doubt PZ would do much differently.

  44. 44
    hjhornbeck

    Rieux:

    That’s not even the worst of it; over on Ashley Miller’s blog, Steersman is currently arguing that “per se” and “illegal per se” are synonyms. I suspect that’s because a Wikipedia editor linked one to the other.

    This mess has made me sympathize with lawyers a lot more. Watching Wiki lawyers pontificate must be like watching 5th graders run wild in a chemical lab.

  45. 45
    leftwingfox

    But, again, that only works if you have a nice counterfactual view of the world to pad it out.

    True, dat.

  46. 46
    GrzeTor

    @Rieux
    According to your link: “The publisher must entertain actual doubt as to the statement’s truth.”

    Firstly would PZ words qualify? “I will again emphasize, though, that I have no personal, direct evidence that the event occurred as described”

    Secondly isn’t there a problem that PZ Myers is a scientist and us such:

    1) He certainly knows that it is important to assure the claims (hypotheses) are falsifiable, and that unfalsifiable claims are a bad idea.
    2) He also has proven that he has the ability to formulate claims in a way that is falsifiable via his work.
    3) But the claim against Shermer, as published are not falsifiable in any reasonable way: as no specific date, place or person is specified. In fact theres a huge assymetry of specification – Shermer is specified by name, and particular negative words and phrases are specified: “coerced, raped, could not consent, unethical behavior, victim, really bad, sense of futility, assaulted, has no recourse, no way out”, while other major factors are either consciously made secret (identities of accusers), not told (dates, places, details) or worded in a vague, ambiguous way (eg. “I’ve heard stories about him doing things”).

    More explaination what It means to be unfalsifiable: if the date, hour and place was specified then the accused could falsify the claim by providing the evidence that he was in a different place at that time.

    So for a scientist, if a claim is not falsifiable then it basically is worthless – the truth value of such claims should be automatically doubted by a scientist, as the claim cannot be tested and proven false then for a scientist such claim cannot be stated with enough confidence level to consider it what normal people call “true”.

  47. 47
    imnotandrei

    Since rieux, being a lawyer, is doubtless charging 500 Imaginabucks per word for his posts here to the Giant FTB Conspiracy Fund, let me answer and see if I can get some of that lovely imaginary currency.

    According to your link: “The publisher must entertain actual doubt as to the statement’s truth.”

    Firstly would PZ words qualify? “I will again emphasize, though, that I have no personal, direct evidence that the event occurred as described”

    No. Saying “These are the limits of my direct knowledge” is not the same as going “Therefore I doubt everything beyond this limit.”

    I have no personal, direct evidence of the Amazon rainforest. I do not doubt its existence.

    Secondly isn’t there a problem that PZ Myers is a scientist

    Stop right there — I can see where this is going (admittedly, I read ahead), so let’s just stop right there.

    Scientific process is about gaining understanding through analysis of repeated phenomena, whenever possible. Hopefully, Michael Shermer raping someone through the use of alcohol is not a repeated phenomenon, nor do I recommend Myers set up a lab to test said phenomena.

    So: So for a scientist, if a claim is not falsifiable then it basically is worthless – the truth value of such claims should be automatically doubted by a scientist, as the claim cannot be tested and proven false then for a scientist such claim cannot be stated with enough confidence level to consider it what normal people call “true”.

    A *scientific* claim is worthless, if it is not falsifiable; that is not the same as saying “A scientist has to follow scientific standards for all claims.” After all, a juror has to decide things “beyond a reasonable doubt” while they are on a jury — do they have to decide what they want for lunch “beyond a reasonable doubt”? No; that standard, that method, is applied to a specific question.

    Similarly, scientists apply a scientific standard to scientific questions; they can use much different standards when judging about the rest of the world.

    Got it?

  48. 48
    Rieux

    GrzeTor @46:

    According to [Wikipedia's entry for "actual malice"]: “The publisher must entertain actual doubt as to the statement’s truth.”

    Firstly would PZ words qualify? “I will again emphasize, though, that I have no personal, direct evidence that the event occurred as described”

    No.

    Secondly isn’t there a problem that PZ Myers is a scientist….

    No.

    and [a]s such:

    1) He certainly knows that it is important to [en]sure th[at] claims (hypotheses) are falsifiable, and that unfalsifiable claims are a bad idea.

    That’s irrelevant to “actual malice” (which involves a publisher’s recklessness pertaining to hir assertion’s falsity, not its falsifiability), defamation claims, and quite possibly litigation in general. “Claims [that] are bad idea[s]” are not therefore defamatory.

    2) He also has proven that he has the ability to formulate claims in a way that is falsifiable via his work.

    Irrelevant.

    3) But the claim[s] against Shermer, as published[,] are not falsifiable in any reasonable way….

    Irrelevant. None of this means anything in the context of litigation.

    So for a scientist, if a claim is not falsifiable then it basically is worthless….

    A defamation suit has very, very little to do with whether “a claim” (more to the point, a published assertion) is valuable. The question is whether it’s tortious—that is, so damaging that it’s worthwhile to limit the First Amendment right to free expression by allowing a party implicated by it to win damages from the publisher for harming hir via publication. Falsifiability may improve Karl Popper’s opinion of your scientific hypothesis, but it does nothing whatsoever to protect a publisher from a defamation claim.

    Indeed, in some circumstances (though not, I think, ones implicated by this case), courts have held that non-falsifiability can make an assertion less susceptible to defamation lawsuits:

    The district judge granted the motion to dismiss on the ground that the word “crank” is incapable of being defamatory; it is mere “rhetorical hyperbole.” This is a well-recognized category of, as it were, privileged defamation. It consists of terms that are either too vague to be falsifiable or sure to be understood as merely a label for the labeler’s underlying assertions; and in the latter case the issue dissolves into whether those assertions are defamatory. If you say simply that a person is a “rat,” you are not saying something definite enough to allow a jury to determine whether what you are saying is true or false. If you say he is a rat because …, whether you are defaming him depends on what you say in the because clause.

    Dilworth v. Dudley, 75 F.3d 307, 309 (7th Cir. 1996) (citations omitted) (emphasis added) (ellipsis in original); see also Milkovich v. Lorain Journal Co., 497 U.S. 1, 20 (1990) (“[A] statement of opinion relating to matters of public concern which does not contain a provably false factual connotation will receive full constitutional protection.”).

    The upshot of the above is that the one intersection between (1) falsifiability and (2) defamation liability is that the lack of (1) sometimes dictates the lack of (2). Otherwise they have nothing to do with each other.

    Again, I don’t think this matters for the current controversy because the dispute isn’t, at heart, about anything PZ stated as a matter of his opinion. However, it could very possibly have been dispositive the last time PZ was publicly threatened with a defamation lawsuit—that is, when he called loony-tunes sketch artist Stuart Pivar a “classic crackpot.” Pivar did in fact file suit over that epithet, but the whole thing collapsed and was withdrawn before PZ’s attorney had the chance to bludgeon it to death with Milkovich and related case law.

  49. 49
    imnotandrei

    @Rieux, 48 —

    Hope you don’t mind my responding, and thank you for bringing your legal knowledge here; it is a fascinating view into the world.

  50. 50
    Rieux

    Since rieux, being a lawyer, is doubtless charging 500 Imaginabucks per word for his posts here to the Giant FTB Conspiracy Fund….

    Ha! At that piker rate, I could barely even start paying the monthly lease on my Imaginateslaconvertible, to say nothing of the (no-Imaginabucks-down) mortgage on my Imaginacondoinbali or my all-consuming Imaginaheroin habit.

  51. 51
    Jason Thibeault

    That’s okay, I hear someone’s planning on setting up an Imagination Defense Fund and I’ll contribute all my imaginabucks to it to subsidize the imaginary monkey on your imaginary back.

    Thanks for answering the Rieux Signal. It is much appreciated. :)

  52. 52
    carlie

    I’m pretty sure that every person who says “you can’t believe this because you’re a scientist and scientists…” is not an actual scientist.

  53. 53
    doubtthat

    Lawyer, here, and I’ve even filed a petition alleging defamation, and we won!!! (Defendant didn’t show up, default judgment, but why sweat the details).

    I have nothing to add to the above legal analysis. It’s been covered quite thoroughly. The burden needed to show libel of a public figure just cannot be met. I would think the Myers just questioning Carrie Poppy about whether she believed the story would be enough to defeat any attempts to show “reckless disregard.”

    Usually I would predict that a lawsuit would be filed simply because filing a lawsuit is a relatively meaningless act, but Shermer should be really concerned about a face-saving crusade as it could cause the woman making the allegations to become more specific or, worse for Shermer, cause other women to come forward. I see little benefit to Shermer from pursuing this.

    Did PZ contact Shermer prior to throwing that grenade, and if not, why not make a simple query even if it was just to add “I asked Shermer to comment and he told me to fuck off”?

    In addition to what other folks have brought up, Myers could have either approached Shermer with the story we saw or added details and information so Shermer would know exactly who was making the allegation.

    If Myers just presented him with the anonymous (to Shermer) story, what possible comment could he have? “Nope, I didn’t do it.” He obviously can’t provide an alibi or otherwise give an account of why the story is wrong since he either would have no idea to what it referred or would just deny.

    If Myers gave Shermer enough information to provide a coherent response, that would almost necessarily involve disclosing the woman’s identity on some level, thereby allowing Shermer to intimidate the person into silence.

  54. 54
    GrzeTor

    @Rieux

    Aren’t Wikipedia entry and you talking about something slightly different? The Wikipedia article you linked to says: “The publisher must entertain actual doubt as to the statement’s truth”
    Your stratement “which involves a publisher’s recklessness pertaining to hir assertion’s falsity”.

    They are quite different when you realize that we have not 2, but 3 types of decision about claims: found true, found false, found impossible to determine. If so, then truth would include “found true, while “doubt as to the statement truth” would include {found false, found impossible to determine}, and “falsity” would only include only {found false}. Also all features of a claim such as lack of details, specifics, it’s unfalsifiability, vaguenes, ambiguoity should lead directly to increasing “doubts as to the statement truth” because of falling into {found impossible to determine}.

    In this sense the citation you provided from a court sentence contains wrong logic, as it is only 2 valued (true or false), rather than 3 valued. The citation was: “you are not saying something definite enough to allow a jury to determine whether what you are saying is true or false”. So this sentence is not compatible with the way the world works (reality), but it may not matter for the legal system?

    Why is it important. First off-topic – as atheists we always have to explain the difference between 3-values (belief in a god, belief in a god’s non-existance, lack of belief in a god without determining it’s non-existance) and 2-values (“you either believe a god exist or believe a god doesn’t exist”). Back on topic – these two are very different in the types of claims that are allowed – in areas like let’s say talking about remote past of very old people, when most eyewitnesses are dead, and possible material evidence let’s say destroyed during II World War, or just expired and was deleted from archives – the general “doubt about truth value” would be much more prohibitive for the publisher, while the need to prove something is false would be almost impossible to prove for the defamed. So there’s a huge difference.

    In my evaluation of PZ actions: I don’t suppose that the state of his mind was that what he was publishing was false. But when it comes about doubting about the truth value of such accusations in the sense of him not being able to determine that the claims are true – especially as a scientist, who is used to evaluate quality of evidence – I suspect this was the case, that he was doubting it heavily and was unsure that they are true.

  55. 55
    Howard Bannister

    Aren’t Wikipedia entry and you talking about something slightly different? The Wikipedia article you linked to says: “The publisher must entertain actual doubt as to the statement’s truth”
    Your stratement “which involves a publisher’s recklessness pertaining to hir assertion’s falsity”.

    …you just said that to a lawyer?

    *sigh*

  56. 56
    GrzeTor

    @imnotandrei
    ” No. Saying “These are the limits of my direct knowledge” is not the same as going “Therefore I doubt everything beyond this limit.” ”

    Of course. We have beliefs. Are you suggesting that PZ Myers is a naive believer in whatever victimization claim women say? Wouldn’t it be the solution that Shermer seeks? A lawsuit that might be lost because of freedom of speach (good for Shermer – he’s a publisher), but during which PZ is forced to admit that he is a naive believer, lacking critical thinking skills when it comes to claims of victimization from women?

  57. 57
    imnotandrei

    In my evaluation of PZ actions: I don’t suppose that the state of his mind was that what he was publishing was false. But when it comes about doubting about the truth value of such accusations in the sense of him not being able to determine that the claims are true – especially as a scientist, who is used to evaluate quality of evidence – I suspect this was the case, that he was doubting it heavily and was unsure that they are true.

    Your suspicions are noted and accorded the level of trust in truth-value — namely, that as a person with an established position on the subject, you are imputing thoughts to a person you do not know on the basis of a misunderstanding of how scientists (as opposed to science) works — that lead to the conclusion you wish to draw — that they deserve.

    Which is to say, none.

  58. 58
    screechymonkey

    GrzeTor@55:

    A lawsuit that might be lost because of freedom of speach (good for Shermer – he’s a publisher), but during which PZ is forced to admit that he is a naive believer, lacking critical thinking skills when it comes to claims of victimization from women?

    Yes, and he’ll also be “forced” to “admit” that he is a poopyhead! And that cats are cute and cephalapods are ugly!

    What bizarro legal procedure are you imagining here? PZ has already “admitted” that he did not personally witness the rape — he said it in the initial post! If Shermer’s goal is to “prove” that PZ is relying on the information presented to him by the victim and the corroborating accounts that PZ has referred to, then mission accomplished, no need for a lawsuit, because PZ said it up front.

    And if hyperskeptical rape apologists like you want to rant that this makes him a “naive believer” who “lack[s] critical thinking skills,” then you can continue to knock yourselves out, but courts have better things to do with their time. (And, I suspect, Shermer has better things to do with his money.)

  59. 59
    A Hermit

    GrzeTor, there are varying levels of confidence one can have in any proposition. That the level of confidence has not risen all the way to scientific certainty (which itself is never 100%) does not have to equal the kind of doubt you’re presuming. There’s a wide range between that and “naive belief.”

  60. 60
    jenBPhillips

    I should say, I can think of absurd things that Shermer-via-Loftus could have in mind as factors that should have made it clear to PZ that Doe was lying: say, “It’s extremely well known that Jane Doe hasn’t left Mongolia for the last 30 years, and that Shermer’s never been there.”

    an interesting hypothetical indeed, as this is very close to what has happened with the Slymies’ false rape claims against Avicenna (who of course has neither the time nor the money to pursue the actual malice of such a false charge). Grrrrrr, these people.

  61. 61
    Chaos Engineer

    A lawsuit that might be lost because of freedom of speach (good for Shermer – he’s a publisher), but during which PZ is forced to admit that he is a naive believer, lacking critical thinking skills when it comes to claims of victimization from women?

    That would be a bit tricky. You’d have to show that Dr. Myers has been fooled multiple times by transparently-false claims about victimization of women. Do you see the problem? They wouldn’t have to just be false, they’d need to be transparently false, such that no reasonable listener would believe them.

    Do you have any examples of this happening? Certainly the “Jane Doe” account isn’t transparently-false; it’s internally consistent and doesn’t contain any obvious implausibilities.

  62. 62
    Rieux

    GrzeTor @54:

    Aren’t Wikipedia entry and you talking about something slightly different?

    Could be. I’m not terribly invested in Wikipedia’s synopsis of the law. I care far more about the law. I strongly suspect you’re seriously misinterpreting the Wikipedia entry, but really, who cares? It’s a gloss on defamation law, not an authoritative or binding authority.

    The Wikipedia article you linked to says: “The publisher must entertain actual doubt as to the statement’s truth”
    Your stratement “which involves a publisher’s recklessness pertaining to hir assertion’s falsity”.

    Indeed. My statement is a paraphrase of the more important half of the definition of “actual malice” from New York Times v. Sullivan, the key U.S. Supreme Court decision in this area. Wikipedia appears to be trying to paraphrase the same standard, though more loosely.

    They are quite different when you realize that we have not 2, but 3 types of decision about claims: found true, found false, found impossible to determine.

    That is utterly irrelevant to the NYT standard. Under your analysis (based on a garbled reading of a Wikipedia entry that’s itself a distant paraphrase of NYT), every single factual statement that everyone ever makes without 100% “found true” certainty would constitute “reckless disregard of whether [the statement] was true or false.” Which is ridiculous.

    As any mathematician or logician can tell you, just about no statement regarding the world around us can be conclusively proven (“found”) true. Your notion that everything stated to a less-than-absolute certainty is therefore stated with reckless disregard for truth is just a laughable idea about everyday epistemology, not to mention about the standards of review that courts of law apply every day within defamation litigation.

    If so, then truth would include “found true, while “doubt as to the statement truth” would include {found false, found impossible to determine}, and “falsity” would only include only {found false}.

    Given that the NYT Court’s analysis is the fundamental authority at issue here, that is very clearly not what the Wikipedia entry means by “The publisher must entertain actual doubt as to the statement’s truth.” The mere recognition that the assertion at issue has not been conclusively proven true is very obviously not the standard for “actual malice.” In this context, the online encyclopedia clearly does not mean the same thing you do by the phrase “entertain actual doubt.”

    Your Wiki-misreading-based analysis of the basic foundations of defamation law is simply flatly wrong. A defendant in a defamation action need not have proven the truth of the matter asserted in order to avoid a court finding of “actual malice.” And I really doubt you’d want to live in a world in which that is the standard.

    I invite you to read the NYT v. Sullivan decision, in which the Court makes clear that a number of the statements that the Times published were in fact false—and yet the Court held that the Times could not be held liable for defamation because the paper lacked “actual malice.” How could that possibly be compatible with your analysis?

    We’re talking about actual law as it works in actual cases, not about how you can mangle a single inartful sentence from Wikipedia into a crazy standard that would massively expand the scope of actionable defamation.

    In this sense the citation you provided from a court sentence contains wrong logic, as it is only 2 valued (true or false), rather than 3 valued. The citation was: “you are not saying something definite enough to allow a jury to determine whether what you are saying is true or false”. So this sentence is not compatible with the way the world works (reality), but it may not matter for the legal system?

    The legal system, in the hands of defamation plaintiffs, would be a runaway freight train mowing down innocent people left and right if it accepted your very silly notions about the “actual malice” standard.

    The accusation that PZ quoted in his grenade post could, hypothetically, be true. It could also be false. That is not directly relevant to the NYT “actual malice” standard. What is relevant is (1) his knowledge regarding and (2) his attitude toward the accusation’s truth or falsity. PZ and others have established that PZ took steps to establish the credibility of the accusation. Under the terms of NYT, that all-but-indisputably establishes that he did not act with “actual malice.” (Under the far less important terms of the Wikipedia entry, it shows that he didn’t “entertain actual doubt” regarding the truth of the accusation.) It’s the NYT standard, and not your irrelevant ideas about epistemology, that matter here.

  63. 63
    Tom Foss

    I’m not sure what to call this feeling I have seeing people who’d be likely to scoff at an anti-vaxxer’s Google University education thinking that a few hours at the Wikipedia School of Law makes them legal experts. Whatever it is, it’s giving me a headache from all the head-shaking.

    And I know that’s possible, because I have a medical degree from WebMD.

  64. 64
    Ace of Sevens

    Thank you to the lawyers who weighed in. Always better to have people who actually know what they are talking about than speculation based on stuff people half-remember from watching Law & Order.

  65. 65
    francesc

    @GrzeTor
    “The publisher must entertain actual doubt as to the statement’s truth”
    I’m willing to admit that by “actual doubt” you can understand “i’m not reallly sure” -wich you do- or “I’m pretty sure it’s false” -wich Rieux explained it’s what the law means, or at least what judges think the law means.
    I will “admit that [I am] a naive believer, lacking critical thinking skills when it comes to” what Rieux claimed, as it seems that he has a reputation of being a lawyer here, he sounds as a lawyer, what he says semms pretty more logical and he provided jurisprudence, instead of believing your interpretation of wikipedia’s interpretation of law.
    So you can ask to remove my True Skeptic (TM) card

  66. 66
    GrzeTor

    @Rieux “I invite you to read the NYT v. Sullivan decision”

    Why do you give me an example that not only doesn’t match what PZ did, but is exactly opposite at the exactly one of the points I’m making? The advertisment in NYT matched patterns like: opinion, fact reporting, invitation for discussion. For example these statemen can be classified as fact reporting “As the whole world knows by now, thousands of Southern Negro students are engaged in widespread non-violent demonstrations in positive affirmation of the right to live in human dignity as guaranteed by the U.S. Constitution and the Bill of Rights.” or “In Orangeburg, south Carolina, when 400 students peacefully sought to buy doughnuts and coffee at lunch counters in the business district, they were forcibly ejected”. Following sentence matches opinion: “Decent-minded Americans cannot help but applaud the creative daring of the students and the quiet heroism of Dr. King.” and this one is an invitation to debate: “We must heed their rising voices–yes–but we must add our own.”. What’s more – the gist of the entire adverisment was about general public problems of that time, rather than being a call for lynching a particular person.

    What PZ did was far away from fact reporting – in fact it was more about consciously hiding the crucial facts (where, when, what, to whom) from the public. Instead he only provided a set of outrageous words and phrases like “coerced, raped, could not consent, unethical behavior, victim, really bad, sense of futility, assaulted, has no recourse, no way out” and associated these words and phrases with Michael Shermer. The actual facts he made a mystery. So let’s call this pattern Accusation Via Mystery. The problem with Accusation Via Mystery is that it is dataless, informationless, unfalsifialble up to the point that the accused is unable to defend himself in a public debate or provide a proof of his innocence. Accusation Via Mystery doesn’t provide time and place of alleged wrongdoing, so the accused is unable to provide evidence that he was somwhere else then. Accusation Via Mystery doesn’t provide the name of the accuser, so that the accused is unable do defend himself via proving the accuser is unreliable. Accusation Via Mystery doesn’t provide a description of place and act, so the accused is not able to prove that the description doesn’t match the physical reality (eg. the hotel doesn’t have the elevator, or the monitoring camera recording don’t shows the accused behaving the opposite way to the claimed one). With such features it doesn’t support a public debate, it’s more of a hindrance as public debate requires information. If Accusation Via Mystery is madeBasically then the only way to get a confirmed information necessary for the public debate is to go to the court and use it as a vehicle to obtain the information.

    So you need a better example, that matches what happened now. Or perhaps there’s going to be a new precedent?

  67. 67
    imnotandrei

    @ GrzeTor, 65

    Legal reasoning — I recommend you study it a bit before you come back here.

    (From this point on, IANAL; I am just trying to save some real lawyer’s time. ;) I am, however, a student of the law, as a layman.)

    The reason that NYT vs. Sullivan is controlling here is not because the facts of that case are tremendously close to the facts here, but because it establishes the “actual malice” standard for a public person.

    Indeed; ” Factual error, content defamatory of official reputation, or both, are insufficient to warrant an award of damages for false statements unless “actual malice” — knowledge that statements are false or in reckless disregard of the truth — is alleged and proved. Pp. 376 U. S. 279-283.”

    If a newspaper, publishing false statements, is not subject to libel claims due to a lack of “actual malice”, a blogger, whose statements have an indeterminate truth-value, is even less likely to be subject to said claims. Indeed — that bit cited from the actual decision — means that even if Myers’ source is proven to be lying, unless PZ can be shown to be in “reckless disregard of the truth”, he’s not guilty of libel.

    So your entire lengthy paragraph about “Accusation Via Mystery” is irrelevant to the law at hand.

    If Accusation Via Mystery is madeBasically then the only way to get a confirmed information necessary for the public debate is to go to the court and use it as a vehicle to obtain the information.

    Libel law was not designed to “get confirmed information for the public debate”. I don’t know if there’s an official term for it, but I believe that suing people for the sole purpose of dragging information out of them in discovery is frowned upon; I am sure someone will correct me if I am wrong there.

  68. 68
    GrzeTor

    @imnotandrei, 66

    First of all I’m surprised that you are saying that the law and interpretation of it is this or that in a way that suggests that it is some static entity, rather than a dynamic system that tracks both the changing real world outside, as well as creativity of lawmakers, as well as trends in judges thinking and philosophies.

    What is even stranger, that the case you cite is the one that significantly changed the system? Notice these words from the case you cite “Cases which impose liability for erroneous reports of the political conduct of officials reflect the obsolete doctrine [...]“. Notice words “obsolete doctrine”. This new precendent was needed because old stuff didn’t reflect actual reality at the time of the case.

    Unfortunately the law you cite doesn’t reflect the reality now. Techniques of propaganda and PR, that can be used to harm people with words, are next generation compared to then, media is completly different after the advancement of the Internet, and we can do things better now, like measuring and quantifying stuff which some areas of law avoid like a plague using words instead. Old doctrines are obsolete – they don’t reflect modern world. Does it sound familiar?

  69. 69
    Tom Foss

    It’s possible that, if there’s an actual libel suit, the court will see it as a new problem and will try to set a new precedent, in which case there will be appeals, and if every level of appellate court agrees that there’s a new precedent to be set here, it’ll eventually work its way up to the Supreme Court, where their decision will determine what the new precedent will be, and the case of Shermer v. Myers will be cited for centuries to come.

    It’s far more likely that they’ll rely on existing relevant case law, despite the fact that a Wiki-educated layman thinks that the decision doesn’t apply and is “obsolete doctrine.”

    Yes, the law is a dynamic system that tracks with the changing world. It’s also a conservative system that avoids sweeping changes whenever possible.

  70. 70
    Tom Foss

    I should amend that to say that the court is a conservative system that avoids making sweeping changes from the bench whenever possible. The kinds of sweeping changes that GrzeTor seems to expect of libel law are matters for the legislators, as far as I can tell. The court interprets law, it generally doesn’t rewrite it.

  71. 71
    imnotandrei

    we can do things better now, like measuring and quantifying stuff which some areas of law avoid like a plague using words instead.

    Try to get this through your head (though I should point you at Steersman, over on another thread, who says that Myers’ supporters are trying to undercut the rule of law, while you’re over here advocating tossing out decades of precedent because, well, it’s different now.):

    The legal system operates on precedent. Sometimes that precedent is changed. However, *nothing* you’ve suggested gives them any reason to do so.

    You’re trying to change the law to get the result you want in one case; that’s what this boils down to. When someone posts an accusation, they’re disrespecting the law — when you want to change the law to punish them, that’s just fine.

    Hell of a double standard you’ve got there.

    To address the last little bit: and we can do things better now, like measuring and quantifying stuff which some areas of law avoid like a plague using words instead

    You can’t get falser than “false”. The Times standard is: Factual error, content defamatory of official reputation, or both, are insufficient — so if falseness wasn’t enough, then “measuring and quantifying stuff” won’t matter here, unless you’ve come up with some brilliant algorithm to measure reckless disregard — a GrzeTorometer, as it were — and I doubt you have.

    You can close your eyes and wish as hard as you want that libel laws were different than they are; you can write your Congressman and suggest they be changed. But when it comes to assessing cases *here* and *now*, or in the very near future, going “But it might be different here!” is not a valid argument.

  72. 72
    GrzeTor

    @Tom Foss 68, 69.

    In the topic of obsolescence of laws and lack of numbers as a big problem – consider for example this whole issue of qualification of who is public and who is private person. In the past a simple qualification might work – there were few people present in TV or newspapers – public, average person was not in media – private. Now hordes of normal, average people have websites, blogs, are in the social media, have their own Internet radio or TV. So should they have little legal protection from defamation – was this the intent of lawmakers, that the average person, doing what’s average behavior nowadays has ?

    Besides not all channels are even watched, so where in the law or interpretations are the popularity numbers that would allow anyone deterministically qualify a persona on the internet as public or private? So that anyone is able to know whom he is dealing with without the need for court cases to determine that after the event. You can’t solve this without numbers – right now there’s no sharp difference between professional celebrities and normals, but continuity from the least popular to the most popular, densly packed at any point in between. No numbers = no predictability of outcome of your action in a court = no justice.

  73. 73
    Tom Foss

    Shermer’s lawyers can argue that Shermer isn’t a public figure, and that’s certainly a possible take. But as you note, the Internet has, if anything, broadened the definition of a “public figure.” Of course, “guy who runs a magazine and an organization, and who has appeared on television many times” is going to qualify, I think, regardless.

    But the problem you outline doesn’t seem to be one the courts alone can solve. The changing social landscape needs to be addressed legislatively, with laws that clearly define what the limits of public and private figures are for the purpose of these sorts of issues. Or they may need to scrap the distinction altogether and come up with a universal guideline that determines what constitutes libel or slander, possibly opening up the “actual malice” defense to everyone or finding some middle ground between the standards that currently exist.

    But I don’t think that’s going to help Shermer out, especially with a do-nothing congress, and I think in general the law (outside of Britain) is going to (and should) err on the side of people being more free to make claims/statements than on the ease of shutting down criticism with SLAPP lawsuits.

  74. 74
    GrzeTor

    @imnotandrei, 79

    Do you really have so much difficulty to find a better match for PZ vs. Shermer potential case than some lawsuit from 60s that was about the important social problem of communicating racism, issue of what can be said about an elected political official, as well as what’s allowed in advertisment secions of printed newspapers?

    If this was a valid precedent to PZ vs. MS case then it would just mean that this whole US legal system is based on a fallacy of overgeneralization. That is first an important, novel case is solved well. But then the conclusions from this case are overgeneralized to the extreme, being applied to the cases that are 180 degree different in crucial aspects (post 65). It’s also a known fallacy of cherry picking if lawyers are able to cherry pick a single definition from a case, and throw away a context that was the gist of it. Shouldn’t it be – the cases don’t match, are divergent in crucial aspects – so the older one is not a precedent to the newer one? It’s not as much about changing a precedent, but using it appropriately, only when patterns match. So it would mean that a precedent that corrects what should be a precedent to what to which is needed, or some explainatory legislative action.

    So what would you do then if no precedents match the case at hand – you simply need to read the law as it’s written in the statues and apply it directly, literally. If it is not possible because it lacks some clarity – do a new precedent that fits the case – but then use it only for following cases that match, without overgeneralization or cherry picking. Isn’t it simple?

    ———————

    About some of your examples: “You can’t get falser than “false”. The Times standard is: Factual error, content defamatory of official reputation, or both, are insufficient ” I’ve explained clearly that making unfalsifiable Accusations Via Mystery against someone is much worse for the accused than an accusation that is an instance of Fact Reporting. Because facts – even falsified ones – are falsfiable, the accused is able to defend himself via showing that they are not true. An Accusation Via Mystery is designed specifically make it impossible for the accused to defend himself – it is thus much worse than stating some details erronously.

    Besides it’s not even what the citation you provide was about. In that case the main point, the gist, the whole sense of the statement was both valid and important for the public interests; there were some errors in details, which is expected – some percent of errors is what humans do. In MS vs. PZ case it would be about the status of the most important point of the blog post – the main accusation form anonymous source – how that is related to reality.

  75. 75
    Tom Foss

    The NYT case is relevant to libel cases involving the standard of “actual malice” because it is the case where “actual malice” was defined. It’s not, as far as I understand, about the cases “matching,” but about how the existing law is interpreted for cases–what you suggest is “simpl[e].” If the law, as it is written, includes “actual malice” as the clause, then you turn to the NYT case to determine what constitutes “actual malice.”

    But here’s what I don’t get, GrzeTor: there is at least one actual lawyer posting in this thread who has disagreed with your interpretation and understanding of the way the legal system works. What makes you think you’re a better judge of how the law works than someone who actually has expertise in how the law works?

  76. 76
    John Phillips, FCD

    @Tom Foss, maybe he is another who believes in the secret, i.e. hope for it enough and it becomes true.

  77. 77
    imnotandrei

    GrzeTor, listen to Tom Foss, because you sure aren’t listening to me — but I’ll give you an example.

    The case controlling what warnings the police have to give a suspect is Miranda v. Arizona,, in which the suspect (Miranda) was arrested on charges of rape and kidnapping. The precedent, however, applies to *any* criminal case, because that is the issue of law that was determined within the argument. Similarly, as has been pointed out repeatedly, the “actual malice” standard was described and determined by NYT v. Sullivan

    I’ve explained clearly that making unfalsifiable Accusations Via Mystery against someone is much worse for the accused than an accusation that is an instance of Fact Reporting.

    From the point of view of the law, it doesn’t matter; indeed, if you are going to argue that there is no way to determine the factual status of the accusation, then it becomes a matter of opinion — which moves it out of the realm of libel altogether, because opinion is protected.

  78. 78
    StevoR : Free West Papua, free Tibet, let the Chagossians return!

    .. regardless of whether I’m right or not, Shermer, some advice for what my advice is worth: stop talking. You are NOT helping your case. You might be inflaming your fanbase but you’re seriously undercutting your own credibility and possibly wrecking any case you have. Save it for the courtroom, for your own sake.

    Yep. That sounds like good advice to me. Well written & agreed here Jason Thibeault.

    I’m no lawyer but I’d probably add that Shermer would likely be very well advised to drop this whole case and maybe apologise not just to PZ but especially to (all) the woman (& man) and then also rest of us. ”

    Plus he’d be well advised to learn from this and behave very differently in future.

  79. 79
    screechymonkey

    Tom Foss @69:

    The kinds of sweeping changes that GrzeTor seems to expect of libel law are matters for the legislators, as far as I can tell. The court interprets law, it generally doesn’t rewrite it.

    The “actual malice” doctrine is (according to the Supreme Court) a requirement of the First Amendment (applicable to the states through the 14th). So any attempt to narrow or limit it would have to come from the Court or a constitutional amendment, not the legislature. Congress can broaden the protection for free speech legislatively, as with Communications Decency Act section 230 immunity, but it can’t strip protection below what the Court determines the Constitution requires.

  80. 80
    Rieux

    Several other folks have done a rather good job of responding to GrzeTor’s ignorant nonsense, but still I feel drawn to add my two bar-licensed cents. And I don’t know the meaning of the word “succinct,” so here goes nothing.

    @65:

    Why do you give me an example that not only doesn’t match what PZ did, but is exactly opposite at the exactly one of the points I’m making?

    Because I, unlike you, have an elementary understanding (actually more than that, but it’s only the elementary level that’s necessary here) of how reasoning from legal precedent works. Your notion that the facts of New York Times v. Sullivan don’t “match what PZ did” (which is in fact bullshit—but we’ll leave that for later) is irrelevant: that is a decision of the United States Supreme Court that sets out a constitutional limitation on all defamation suits brought by public figures. It binds every court of law in the United States of America. It places beyond dispute several ground rules that apply to every such lawsuit. Whining that it “doesn’t match what PZ did” is ignorant idiocy, because it doesn’t matter whether the facts of NYT “match” (especially in your ludicrously blinkered subjective opinion); the requirements set out in that case bind every court that Shermer could possibly sue PZ in regardless. Under NYT, in any defamation suit Shermer brings against PZ, Shermer would be constitutionally required to prove “actual malice,” and his “actual malice” showing would have to meet the criteria the Supreme Court provided in that case. That’s the law. It doesn’t matter how you feel about it. It’s the law. If Shermer can’t prove “actual malice” under the NYT standard (or else show that he’s not a public figure—but good luck), he loses. Indisputably and unquestionably. Your caviling is based on nothing but your severe ignorance of the manner in which American law works.

    The advertisment in NYT matched patterns like: opinion, fact reporting, invitation for discussion.

    What kind of freakish Pavlovian psych experiment do you think you’re participating in here? This is not “pattern matching,” it is (hypothetical) litigation. The only relevant “pattern” being matched is that the hypothetical lawsuit in question is a defamation action. Michael Shermer is hypothetically suing PZ Myers on the grounds that Myers allegedly published one or more assertions of fact that defamed Shermer. Meanwhile, in 1960 L.B. Sullivan, the Commissioner of Public Safety for the city of Montgomery, Alabama, sued the New York Times on the grounds that the Times allegedly published one or more assertions of fact that defamed Sullivan and the police force he commanded. That’s the “pattern.” That’s what matters. You shoving various facts into absurd boxes marked “opinion,” “fact reporting,” and “invitation for discussion” is entirely meaningless.

    [T]he gist of the entire adverisment [at issue in NYT] was about general public problems of that time, rather than being a call for lynching a particular person.

    First, like your whole fixation on “matching” various categories that you think the statements in the respective publications fall into, your “gist” bit is both irrelevant and flatly wrong. There were numerous specific allegations of fact in the challenged advertisement, and Sullivan sued precisely because he believed (in some instances correctly) that they were false. “Gist” is an absurd irrelevancy.

    More importantly, though, you are straightfacedly analogizng what happened to Shermer to “a call for lynching.” That is disgusting, pal. Fuck. You. Being accused of sexual assault is not commensurate with being threatened with racist mob murder. How dare you pretend those are comparable?

    What PZ did was far away from fact reporting….

    Abject bullshit. The basic premise of any Shermer lawsuit would necessarily be that PZ’s post was “fact reporting,” and that the central “fact report[ed]” was false. Insofar as his post wasn’t “fact reporting,” by black-letter law it’s not defamation. Shermer’s attorneys, we can all be thankful, are well aware of that basic legal reality.

    Again, one notable factual parallel between the facts of NYT and Shermer’s allegations in his hypothetical lawsuit against PZ is that some of the statements the Times printed were in fact false. As a result, Sullivan’s complaints about the Times‘ publication was, in that respect, correct: the publication had stated false notions about him and his police force. The reason NYT would be particularly helpful for PZ in the hypothetical lawsuit, besides setting out the “actual malice” standard in the first place, is that it shows that the mere falsity of Jane Doe’s account still wouldn’t prove that PZ defamed Shermer. And that’s a massive problem for Shermer’s case, regardless of your silly nonsense about “matches.”

    – in fact it was more about consciously hiding the crucial facts (where, when, what, to whom) from the public.

    Again, that’s bullshit—but more to the point, it’s simply entirely irrelevant to defamation law. PZ has no legal obligation to provide you with “facts” that you whinge are “crucial.” Failing to provide you (or Shermer) with that information isn’t defamation. Go ahead and ask Shermer’s counsel. (He might charge you a heavy fee to set you straight, though. Wish I could.)

    Instead he only provided a set of outrageous words and phrases like “coerced, raped, could not consent, unethical behavior, victim, really bad, sense of futility, assaulted, has no recourse, no way out” and associated these words and phrases with Michael Shermer.

    Tough shit. That’s not defamation. It’s not actionable. You can ask Shermer’s counsel.

    The actual facts he made a mystery. So let’s call this pattern Accusation Via Mystery. The problem with Accusation Via Mystery is that it is dataless, informationless, unfalsifialble up to the point that the accused is unable to defend himself in a public debate or provide a proof of his innocence.

    Tough shit. It’s not defamation. It’s not actionable. You can ask Shermer’s counsel.

    Accusation Via Mystery doesn’t provide time and place of alleged wrongdoing, so the accused is unable to provide evidence that he was somwhere else then. Accusation Via Mystery doesn’t provide the name of the accuser, so that the accused is unable do defend himself via proving the accuser is unreliable.

    Boy, you’re just itching to stalk, harass, and generally destroy Jane Doe, aren’t you? It hurts that you’re not in a position to make her life a living hell. Well, tough shit: your inability to do that doesn’t make PZ’s publication defamatory. It’s not actionable. You can ask Shermer’s counsel.

    Accusation Via Mystery doesn’t provide a description of place and act, so the accused is not able to prove that the description doesn’t match the physical reality (eg. the hotel doesn’t have the elevator…

    Oh-what-a-giveaway!

    …or the monitoring camera recording don’t shows the accused behaving the opposite way to the claimed one).

    Tough shit. It’s not defamation. It’s not actionable. You can ask Shermer’s counsel.

    With such features it doesn’t support a public debate, it’s more of a hindrance as public debate requires information.

    Tough shit. Both PZ and Jane Doe have the First Amendment right to free expression; they don’t have to “support” your precious “public debate” (a blatant pretextual euphemism for brutally harassing an innocent rape victim). Failure to “support a public debate” is not defamation. It’s not actionable. You can ask Shermer’s counsel.

    If Accusation Via Mystery is madeBasically then the only way to get a confirmed information necessary for the public debate is to go to the court and use it as a vehicle to obtain the information.

    Oh, do tell! Courts are in the business of enabling defamation plaintiffs “to get a confirmed information” (wha?) “necessary for the public debate” now? What in the world gives you that ridiculous idea?

    So you need a better example, that matches what happened now.

    The hell I do. You’re playing Shermer here, pal—and the plaintiff has the burden of proof in any civil action. It’s your job to come up with legal authority to prove your case. Given the ignorant idiocy of your legal theory (which starts by chucking NYT v. Sullivan over your shoulder), good goddamn luck.

    Or perhaps there’s going to be a new precedent?

    Not based on your illiterate nonsense, no, there won’t.

    @67:

    First of all I’m surprised that you are saying that the law and interpretation of it is this or that in a way that suggests that it is some static entity….

    Bullshit. Once again, that is simply your ignorance talking. Law—and especially constitutional jurisprudence, which is what we’re talking about here—is a precedential system that is designed to change extremely slowly and carefully, and discard old foundational concepts only on extremely rare occasion and with overwhelmingly pressing justification. That’s not “static,” though it can look that way to people who know so little about it.

    Unfortunately the law you cite doesn’t reflect the reality now.

    Yeah, try telling that to an actual judge! See how many seconds it takes for her to throw you out on your ass.

    Techniques of propaganda and PR, that can be used to harm people with words, are next generation compared to then, media is completly different after the advancement of the Internet, and we can do things better now, like measuring and quantifying stuff which some areas of law avoid like a plague using words instead.

    Bullshit. Abject bullshit. There is nothing whatsoever about the PZ/Shermer controversy that could not have taken place with the technology available in NYT‘s 1960—or for that matter the Bill of Rights’ 1789. Accusing a public figure of a serious crime—even via your precious “Accusation Via Mystery” (which we native English speakers call innuendo)—has been entirely practicable for many centuries.

    Moreover, NYT v. Sullivan has coexisted with overwhelmingly widespread Internet use for decades, now, and there has been no indication that any court, least of all the U.S. Supreme Court, believes that the justification for “actual malice” standard is any less pressing in the Internet age than it was in 1960. Clueless as you are about the entire topic, this matter is not the first time that public figures have been accused of serious crimes on the Internet by people whose identities the accused was not aware of. Decades’ worth of Internet-age defamation law have done nothing to cast NYT into doubt; why should some legally illiterate nobody’s burning need to get PZ Myers change anything?

    Old doctrines are obsolete – they don’t reflect modern world.

    Your comprehension of the “doctrines” in question here is about as impressive as your facility with definite articles.

    Given how poor your understanding of said “doctrines” is, why in the world should anyone see your notions about those doctrines’ supposed obsolescence as credible?

    @71:

    In the topic of obsolescence of laws and lack of numbers as a big problem – consider for example this whole issue of qualification of who is public and who is private person. In the past a simple qualification might work – there were few people present in TV or newspapers – public, average person was not in media – private.

    Wrong. Again, your ignorance is vast. That has never been the legal standard for “public figure”s under NYT. Why do you continue shooting your mouth off on topics you know so little about?

    Now hordes of normal, average people have websites, blogs, are in the social media, have their own Internet radio or TV. So should they have little legal protection from defamation – was this the intent of lawmakers, that the average person, doing what’s average behavior nowadays has ?

    That is a well-examined issue. Courts have dealt with it in depth. You could research what they’ve concluded, but why should you, right, when you can just blather online instead?

    So should they have little legal protection from defamation – was this the intent of lawmakers, that the average person, doing what’s average behavior nowadays has ?

    (“Lawmakers”? Is that what you’re calling the U.S. Supreme Court now?)

    That issue is an extraordinarily old one. If you talked less and read more, you might know that. And you might know the current state of the law, too.

    Besides not all channels are even watched, so where in the law or interpretations are the popularity numbers that would allow anyone deterministically qualify a persona on the internet as public or private?

    Nope. Totally irrelevant. Severe ignorance of the legal standards in question. You’re embarrassing yourself.

    No numbers = no predictability of outcome of your action in a court = no justice.

    Asinine. You want “predictability of outcome of your action in a court”? Let me introduce you to a fabulous group of people: they study the law, and then they offer to help people like you understand the law and the impact it may have on you. They often have to charge you money for this service (they need to put food on the table, same as anyone else), but given the significance of the consequences that law can often have on private parties, the service they provide is often very valuable nonetheless. A fair number of folks don’t like these people, but I promise, most of them are actually very nice, intelligent, and committed to making the world a better place, Do you want to guess who they are? And why it might be sub-optimal to blunder your way into their subjects of expertise with barely the slightest understanding of (if not sneering contempt for) what they do and how the law works?

    @73:

    Do you really have so much difficulty to find a better match for PZ vs. Shermer potential case than some lawsuit from 60s that was about the important social problem of communicating racism, issue of what can be said about an elected political official, as well as what’s allowed in advertisment secions of printed newspapers?

    Your ignorance is astounding. NYT v. Sullivan does not cease to be the seminal precedent on American defamation law just because you can ridiculously mischaracterize it. (It’s “about the important social problem of communicating racism, issue of what can be said about an elected political official, as well as what’s allowed in advertisment secions of printed newspapers”? That’s just breathtakingly wrongheaded.)

    If this was a valid precedent to PZ vs. MS case then it would just mean that this whole US legal system is based on a fallacy of overgeneralization.

    No, you just are flatly clueless about how judicial precedent works. Your bizarre resistance to the entire concept does not change the manner in which Supreme Court precedent binds every portion of the American legal system. What you call “a fallacy of overgeneralization” is the way the American judicial system, and the English common-law system it derives from, have worked for several hundred years. If you don’t like it, once again: tough shit. Judicial precedent is the law, and it binds everyone in the U.S. (and the U.K., Australia, New Zealand, and (with minor revisions) effectively the entire rest of the world).

    Shouldn’t it be – the cases don’t match, are divergent in crucial aspects – so the older one is not a precedent to the newer one?

    Sure; you can try to distinguish a prior precedent. But that requires actual understanding of the concept of precedent, and indeed of which “aspects” of precedents are actually “crucial.” Your mangling of NYT, in the service of a silly personal vendetta, indicates rather strongly that you don’t have the slightest idea of how to do that.

    If it is not possible because it lacks some clarity – do a new precedent that fits the case – but then use it only for following cases that match, without overgeneralization or cherry picking. Isn’t it simple?

    No, in fact, it’s not. Especially when dishonest ignorants with massive axes to grind refuse to accept that foundational Supreme Court decisions are binding law. When they blather about irrelevancies such as “the important social problem of communicating racism” as a ridiculous diversion to legal holdings they don’t like. When, in short, neophytes who have no idea what they’re talking about think they can play lawyer in order to sock it to their enemies. In that kind of situation, things can get very difficult indeed.

  81. 81
    Rieux

    I wrote:

    Judicial precedent is the law, and it binds everyone in the U.S. (and the U.K., Australia, New Zealand, and (with minor revisions) effectively the entire rest of the world).

    Oops: Canada, too. My apologies to our gracious host.

  82. 82
    imnotandrei

    Judicial precedent is the law, and it binds everyone in the U.S. (and the U.K., Australia, New Zealand, and (with minor revisions) effectively the entire rest of the world).

    I have to ask — is this also the case in “code-based” legal systems, like Germany? I know precedent has respect there, but I didn’t think it was quite as …forceful as it is in common-law systems.

  83. 83
    hotshoe, now with more boltcutters

    Whew, Rieux on fire today!

    Grze Tor, go home. You’re lost; you’re so abysmally wrong-headed that you couldn’t make a valid point if we took up a collection and paid you to.

    There’s not one single valid thing you can add to the subject besides “I was wrong, I admit it, I’m sorry I was such an ass and wasted all your time”.

    Don’t bother coming back unless that’s what you’re coming back to say.

  84. 84
    Rieux

    You’re exactly right, imnotandrei. Judicial precedent is a less important and powerful thing in jurisdictions that aren’t common-law based (such as most of Europe)—but it matters nearly everywhere.

  85. 85
    Ace of Sevens

    I don’t think Shermer’s lawyers would get far arguing that he isn’t a public figure. Here’ a write-up on the subject:

    https://www.eff.org/issues/bloggers/legal/liability/defamation#7

    He’s an author and public speaker. He’s done a lot to call public attention to himself.

  86. 86
    F [i'm not here, i'm gone]

    And there it is again: Shermer said to me in some email that none of you will ever see or be able to verify that he didn’t do it. And we’re just supposed to take it on faith that such a thing actually exists? But the rape accusations were made by Bitchez B. Lyin, and besides, PZ made up the whole thing for page hits. Fucking Magnets, how does this work? I frequently suck at picking up technical gaming rules and social cues, but really. (What? The WCHM piece can move anywhere on the board to attack a one of the less privileged ones? The fuck?)

  87. 87
    Rieux

    Indeed, Ace @84: it’s a very broad standard. PZ is almost certainly a public figure as well. (Not that that matters for the hypothetical lawsuit in question; it’s only the plaintiff’s public-figure status that makes a difference for the analysis, not the defendant’s. FWIW (very little), the New York Times unquestionably was and is a public figure, too.)

    As the NYT Court explains, the public-figure and “actual malice” standards are an extraordinarily important means of protecting the First Amendment rights to freedom of expression and freedom of the press. Without those standards (or some other rule that performs similar work), the powerful could all too easily silence any critical commentary on anything they do. There’s an underlying cost-benefit analysis involved: upholding those First Amendment rights has long since been deemed more fundamental and important than private parties’ desire to root out any and every published challenge (including, inevitably, some that are based on falsehoods) to their reputations.

  88. 88
    Giliell, professional cynic -Ilk-

    imnotandrei

    I have to ask — is this also the case in “code-based” legal systems, like Germany? I know precedent has respect there, but I didn’t think it was quite as …forceful as it is in common-law systems.

    They have more of a “guideline” effect. Unless, of course, it’s the constitutional court. In that case it usually means that the legislative have to make a law that complies with the ruling.

  89. 89
    Maureen Brian

    Thanks, Rieux. Your efforts are appreciated, honestly!

  90. 90
    PatrickG

    Rieux, did post #79 get you enough Imaginabucks for a down payment on that convertible? :)

  91. 91
    Rieux

    Nah, I’m still chasin’ the Imaginadragon. The car is going to be Imaginarepossessed any day now.

  92. 92
    Fern

    Rieux, as a fellow lawyer, I just wanted to tip my hat to you for #79. Spot on.

  93. 93
    Rieux

    Thanks, Fern!

    (Truth be told, I’m procrastinating from writing a Rule 12 motion brief. The Complaint in question is so pathetic I’m going to try to talk my client into filing/threatening a Rule 11 motion as well. Unfortunately, there are experienced litigators who reason just as poorly as GrzeTor….)

  94. 94
    Hank_Says

    Thanks, Rieux. That was more fun than watching the demolition of a creo-troll or the merciless schooling of a dudebro (and educational to boot! Learning via shadenfreude is fun!).

    I still find it amazing (though I probably shouldn’t) that in the age where practically the entirety of human history, law, science art etc can be discovered, investigated and confirmed via computer, phone or even smart TV there are still people more than happy to spout endlessly on topics they don’t even have a cursory understanding of. The amazement continues when they encounter somebody who has a deep, professional understanding of said topic and they double down and insist that that person is just wrong because of Reasons™. As it goes with creationists and scientists, so too, it seems, with armchair advocates and actual lawyers.

  95. 95
    Nokkelanimimerkki

    Selling tin foil hats five doollars, and happy ending. Seriously, I see no objective observer on either side.

  96. 96
    cityzenjane

    Just saw a tweet that says “AmazingAtheist” “knows Shermer’s accuser” and says “she’s not credible.”

    I am not sure why he thinks he has any sort of credibility on this or any other topic….flying hate monkeys notwithstanding.

  97. 97
    hotshoe, now with more boltcutters

    … Seriously, I see no objective observer on either side

    Great. Then you can fuck right off to wherever on the whole wide internet you think has “objective observers”.

    Go on, shoo!

  98. 98
    hotshoe, now with more boltcutters

    This is copied from a thread on another forum – which got locked while I was composing my answer – so out of frustration at not getting to have my say, I’m dropping it here:

    [Patrick writes]
    Hotshoe,

    Your interpretation of the law is at odds with what I’ve learned.  In particular, I don’t believe you will find a case that protects defamatory claims about sexual assault just because they are made against a public figure.  If Myers had said that his target was an unskeptical, irrational, poor writer and speaker, that would probably be covered.

    Are you a lawyer or have you consulted a lawyer on this case or on a similar case? No? I freely state that I am not a lawyer and have not ever played one on TV, but I have been listening to a lawyer about this case, and I did take notes on his specific answers. Comments I have made here reflect what I have been told by that lawyer, not merely “what I’ve learned” from wikipedia or expertlawdotcom. Feel free to disbelieve me; in fact, you should disbelieve me to avoid hypocrisy, since I am “anonymous” to you, and everything I have told you is second- or third-hand to you, of which you should be thoroughly skeptical.

    [Patrick writes]
    In any case, we’ll all have to wait to see how this plays out.  My hope is for one of two clear resolutions.  Either Myers proves his claim and a sexual predator gets locked up or Myers is forced to retract his claim and apologize plus pay enough to discourage others from making such defamatory statements without proof.  Unfortunately, I suspect the result will be muddier.

    Do you realize that the first of your hopes is impossible in this case, under our legal system? It is completely impossible that “a sexual predator” will get locked up in this case, because it is not and never will be a criminal case. If Shermer fails to prevail in a libel suit – if he even does sue to begin with, which is doubtful – then that’s it. Afterward, he goes home. He doesn’t get arrested, doesn’t get charged by the state with a crime, doesn’t get tried, and most certainly doesn’t get locked up. I’m surprised you got mixed-up about that.

    But then, Shermer wouldn’t get locked up even if it were a criminal trial. We know that! Only 3 percent of rapists will ever serve a day in prison. Prison sentences only occur in the cases which fit the CSI script of rape: a strange man dragging a woman, screaming, into the alley, or a school teacher raping a prepubescent student. We know Shermer would never be convicted, much less given jail time. He doesn’t fit the “bad guy” script.

    I’m confident the most likely outcome is that Shermer will take the advice of his lawyers and not file a libel suit, will wait for the story to blow over – which it will, people have short attention spans if nothing more is made out of the “gossip” – and a few years from now no one will care at all.

    Except, perhaps, (we hope) a few women will remember and choose not to trust Shermer with their wineglass.
    .
    .
    .
    The lawyer I mention, above, is of course our wonderful Rieux. Thank you for the education, Rieux!

  99. 99
    Steven Carr (@stevencarrwork)

    Could PZ also defend himself by claiming he was drunk when he published that article and so was not in a position to know exactly what he was doing?

    I am not a lawyer, but if I understand correctly, if you are drunk when you commit a crime, the law considers that to be a mitigating factor, as it is well known that inebriation impairs your judgement so that you do things you regret afterwards.

  100. 100
    Rieux

    No sweat, hotshoe. Thanks for the shout-out.

    Steven: no, I don’t think so. PZ is being accused of a tort (libel), not a crime. Intoxication is almost never a defense to torts. (And even if it were, he’d have to explain why he hasn’t taken the allegedly alcohol-induced post down when Shermer demanded he do so.)

  101. 101
    culuriel

    While there doesn’t appear to be enough to convict Shermer or say with any certainty what he did or didn’t do, the story can serve as a good cautionary tale. Watch your wineglass, and not just to keep from getting drunker than you actually want- whoever is just pouring without your consent could be slipping something into your drink as well.
    This story may or may not play out as true. But it will at least prevent men at skeptic/secularist/atheist conferences from refilling wineglasses without being asked it. And that alone could prevent alot of stupid mistakes.

  102. 102
    Tom McIver

    I was actually sued for libel–$8.25-million–by Al Seckel, a once-prominent skeptic who ran Southern California Skeptics. He claims (falsely) that Shermer’s Skeptic Society is merely a continuation of his now-defunct SCS, and Shermer got to know him pretty well (though he wishes he hadn’t). Seckel sued me for exposing his phony credentials and reporting on the many fraud charges made against him. The lawsuit involved all the libel issues discussed in this thread. Some documents in the case are available to the public at PACER.gov, since it was a Federal case. Seckel is currently the defendant in this fraud case: http://www.courthousenews.com/2011/03/10/34803.htm This is also a Federal case, so PACER.gov documents are available.

  1. 103
    Sexual harassment accusations in the skeptical and secular communities: a timeline of major events » Lousy Canuck

    […] August 26th, 2013 PZ Myers, Michael Shermer, JREF John Loftus claims to have personal email from Michael Shermer suggesting that he knows who made the accusations against him, and that if anyone else heard what Shermer told Loftus, Shermer’s innocence would be obvious. He then later walks all of that back when Shermer apparently suggests he DOESN’T know who made the accusation, and was just guessing. I cover this episode on my blog. […]

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