Category Archives: Free speech

Texas court hears oral arguments in Wakefield v. BMJ–how much can Age of Autism get wrong in one paragraph?

The electronic docketing system of the Texas courts is down for maintenance this weekend, so I couldn’t verify this information.  But Age of Autism (whose latest post as of this writing calls Jenny McCarthy a “Beauty Queen,” apparently for her career-launching spread in Playboy magazine) said it, so it must be right: the Texas Third Court of Appeals has heard oral arguments in the appeal by Andrew Wakefield from an order of the trial court dismissing his lawsuit against BMJ, Brian Deer, and Fiona Godlee for libel in relation to an article calling him a fraud.  I did find the brief of BMJ, Deer, and Godlee, which was filed on March 4, making a May 22 oral argument about right.

What was amazing about Age of Autism’s short post on the topic was how much they got wrong about the court and the case.  Here’s the entire post:

Yesterday, the three judges of the Texas High Court heard the appeal over jurisdiction in the case of Andrew Wakefield against the British Medical Journal and journalist Brian Deer. The case was presented by attorney Brendan K McBride, which was felt to be well-conducted. It will now be between 1 and 6 months before the judges return their verdict.

So, how did Age of Autism get it wrong?  Let me count the ways:

  1. “the three”:  There are six judicial officers on the Third Court of Appeals.  This case was heard by a panel of three of them, but they do not constitute “the three” judicial officers of the court.
  2. “judges”: The judicial officers on the court are called “justices.”
  3. “High Court”: The Third Court of Appeals is an intermediate appellate court.  That means that it is not the court of last resort in the state, and therefore does not carry the honorific name of “High Court.”
  4. “British Medical Journal”: The BMJ hasn’t been called this in 25 years; they now go by “BMJ.”
  5. “against the [BMJ] and journalist Brian Deer”: The case had a third defendant: BMJ editor Fiona Godlee.  OK, this is a minor point, but it’s still an error, so I get credit for pointing it out.
  6. “which was felt to be well-conducted”: Huh?  This phrase shows the evils of the passive voice, the use of which every law school professor believes will lead to the extinction of Homo sapiens.  Who “felt” it to be “well-conducted”?  I assure my dear readers that Age of Autism was not speaking on behalf of the court.
  7. “It will now be between 1 and 6 months before the [justices] return their [decision]”:  Says who?  I could find nothing in the Texas Rules of Appellate Procedure or the court’s local rules that indicates any time frame for a decision.  This might be an average of the court, but it’s dangerous to predict a time frame for an appellate court’s decision in any particular case except for those cases that have definite terms in which they issue decisions before the end of the term, like the U.S. Supreme Court does.  I could find no indication that this was the case for the Third Court of Appeals.  I am ready to stand corrected if a Texas attorney has other information.
  8. “verdict”:  An appellate court does not issue a “verdict.”  A verdict is a declaration by a trial court that establishes the ultimate facts and some legal conclusions in a case (I know, fellow lawyers, it’s really the judgment resulting from a verdict that does that, but let’s keep it simple for our lay readers, OK?).  An appellate court issues a “decision” or “opinion” and, eventually, a “mandate.”

One of the comments to the post, by “AussieMum,” stood out for its fundamental misunderstanding of the law:

If Dr. Wakefield’s appeal is successful, is he still subject to the BMJ’s lawsuit based on the Texas Citizens Participation Act (the “Texas Anti-SLAPP statute”) or is he home free?

Maybe we should give AussieMum a little slack since she is probably from Australia, but if she has read anything about the lawsuit, she would realize that the BMJ’s anti-SLAPP motion is not a “lawsuit” that Wakefield is “subject to.”  It’s a defense to Wakefield’s lawsuit against BMJ, Deer, and Godlee.  For a good description of Texas’s anti-SLAPP statute, see my favorite legal blog, Popehat.

So, Age of Autism, perhaps you should inform yourself a little better about the law before you comment on legal matters.  And, come to think of it, perhaps you should inform yourself a little better about science and medicine before you base an entire website on the safety of vaccines.

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Filed under Free speech, Lawsuits, Libel, Vaccines

Quickie news: Wakefield sues British authors and publishers for libel–in Texas

I wish I had more time to write about this tonight, but I just had to post something on the lawsuit filed today (January 4, 2012) in a Texas trial court by Andrew Wakefield, the disgraced British former physician whose 1998 Lancet article created the modern vaccines-cause-autism myth. Wakefield is suing BMJ (the former British Medical Journal), Brian Deer, the author of a January 5, 2011 (Happy Anniversary!) BMJ article, and later follow-up article, that detailed Wakefield’s falsification of data and fraud in the Lancet article, and Fiona Godlee, a physician and editor of BMJ who authored an editorial in the same issue.

At first I wondered if the news of the lawsuit was just a bad rumor, but the available copy of the complaint has all the markings of a document that has actually been filed in a court.

My quickie analysis/prediction, subject to the usual caveats that I haven’t had a lot of time to research this and I have purposely over-generalized and simplified the law:  There are quite a few hurdles for Wakefield to clear to be successful.  First, he has to show that the Texas courts have jurisdiction/power to conduct the trial in the first place.  Wakefield is suing a British publication and two citizens of the United Kingdom in Texas because he resides in Texas now.  In the United States, a court has jurisdiction or authority over a defendant only if the defendant has sufficient contacts or involvement with the state in which the court sits.  Wakefield claims that Texas courts have jurisdiction over BMJ, Deer and Godlee because they “direct[ed] a significant and regular flow of publications . . . to institutional and individual residents of [Texas]” and because they committed a tort (a personal wrong) against him, and he is a resident of Texas.

A publisher of widely-disseminated material isn’t subject to the jurisdiction of every court where the material may end up.  Either the specific article involved must have been “directly aimed” at the state, or the publisher must have sufficient “contacts” with the state to give the state’s courts jurisdiction over any case involving the publisher (for example, the New York Times can be sued in New York, even if it is being sued for a car accident that one of its employees causes in Pennsylvania, just because it’s based in New York–or is it New Jersey now?).

Many courts have held that merely publishing materials that may end up in a given state is not enough to subject a publisher to the jurisdiction of that state’s courts.  The publisher must have “directly aimed” the allegedly defamatory material at the state.  The mere presence of the target of an article is not enough.  Although a famous U.S. Supreme Court case held that an article about an actress in California was enough to subject the publishing newspaper to a libel lawsuit in California, a recent federal appeals court decision noted that in that case the article was about the actress and her career in California, and wasn’t based on the actress’s mere presence in California.  Although this article is about Wakefield, who now resides in Texas, it wasn’t about Wakefield’s activities in Texas.  It was about Wakefield’s activities in the United Kingdom, where all of his defendants are.  I don’t know if the BMJ’s circulation is enough in Texas to give the court “general” personal jurisdiction over any case involving the publication, but I doubt it.

If Wakefield gets past the jurisdictional hurdle, he then has to battle the First Amendment.  I have no doubt that Wakefield is a “public figure” and the issue of the safety of vaccines is a public issue.  Because of that, the First Amendment’s protection of public discourse on items of public import requires that Wakefield prove “actual malice,” which means that he must prove that the authors and publishers of the BMJ article knew that the defamatory statements were false or that they made the statements with reckless disregard of the truth or falsity of the statements.  Wakefield actually alleges in his complaint that the authors knew the statements were false.  Saying it in a complaint is one thing.  Proving it is another.  Proving someone’s knowledge is a hard thing to do.  Not impossible, but very hard.

Another hurdle facing Wakefield is the legal concept of “res judicata,”  which roughly translates to “we’ve been through this already.”  (Some legal nit-pickers may claim that the real translation is “the thing has been adjudicated,” but don’t you believe them.)  The concept goes something like this: once you have had a “full and fair opportunity” to litigate some claim, issue or fact in one court, and have lost, you don’t get to litigate it again, even in some other court.  Wakefield has already been through a huge proceeding before the United Kingdom’s General Medical Council in which he lost his license to practice medicine.  He had a full and fair opportunity to litigate the matter there.  The Council found that he had falsified elements of his Lancet article and that he had abused developmentally disabled children (there’s a guy you want to bring home to mom).

My major question on this point is whether Texas considers results of administrative proceedings to have “preclusive” effect.  Some states say that a finding by an administrative agency has the same effect as a finding of a court.  Some states say that only court proceedings count.  If Texas is in the former group, then Wakefield will have a tough time getting to trial.  Any Texas lawyers who can answer that one?

Also, I have to question whether the BMJ article has really caused any damage to Wakefield’s reputation.  In order to recover some money damages, Wakefield has to prove either that he suffered some actual damage to his reputation or that the article damaged him in his occupation or profession, in which case he would get at least nominal damages.  I don’t think he’ll be able to prove that he suffered some damage to his reputation given the horrible worldwide reputation that he has.  Given the highly-publicized findings of the British General Medical Council a year before the articles in question, it’s hard to believe that the articles caused any additional harm to his reputation.  In addition, I don’t think that he will be successful in proving that the defamatory statements concerned his occupation or profession because they concerned his medical research as a physician–and he’s no longer a physician.  (Interestingly, one of the statements in the articles that Wakefield claims is false is “now apparently self-employed and professionally ruined, [and] remains championed by a sad rump of disciples.”  I didn’t know that “rump” was the collective noun for a group of disciples.  I thought it was “flock.”  You learn something new every day.)

OK, I really must go.  I may try to update and clean up this post in the coming days.  Comments, critiques and corrections are greatly encouraged and invited.

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Filed under Free speech, Lawsuits, Libel

Lessons from EpiRen: do public employees have free speech rights?

For this, my first post on this long-planned blog, I am hoping to use current events in the skeptical world to show one way in which I hope to be of some help to skeptics: by giving a brief, plain-English explanation of the law surrounding some issue.  Be warned, though, that by making a “plain-English explanation,” I am purposely leaving out some of the nuance and gray area of the law.

Here, my focus is on a post on Liz Ditz’s blog, I speak of Dreams.  The post describes how René Najera, an epidemiologist for a state department of public health who goes by the pen name “EpiRen,” was ordered by his supervisors to stop his blogging and tweeting about matters relating to public health.  The orders came after a man describing himself as a “pharmaceuticals entrepreneur” contacted the supervisors to complain about Najera’s comments, which the “entrepreneur” claimed defamed him and his business.  Najera, not wanting to risk his job, agreed, and will no longer be blogging or tweeting about public health.

The comments to the post included a question about the legality of the supervisors’ orders:

This seems to me like a violation of free speech. Just as it is illegal to fire someone because of race or religion, shouldn’t it be illegal to fire someone for views expressed outside the workplace?

and a biased, ignorant response to that question:

[A]s a labor organizer, I can tell you for a fact that unless [Epi]Ren is a member of a union, he can be fired at any time for any or no reason at all, as long as it doesn’t come under the EEOC protected things like race, gender or religion.

So unless Ren can prove that protecting the public’s health by educating online is his religion, he can be fired for his online communication. Unless you have it protected in a union contract, you have no free speech if your employer doesn’t like it.

The bias of this “labor organizer” results in a common overstatement of the benefits and protections of unionization.  There are many other sources of protections for workers, and especially government workers, in both federal and state laws, ranging from state and federal constitutions on down to agency policies.  There is also the private employment contract that affects any employment relationship, whether that contract is formed by collective or individual bargaining.  (I’ll admit, though, that most employees have far less bargaining power when acting individually than when acting collectively.)

But I digress (mostly due to my own bias against unions).

Public employees have the free speech rights of other citizens

The U.S. Supreme Court, in the May 2006 decision in Garcetti v. Cabellos, had occasion to explain the free-speech rights that public employees possess.  In that case, Cabellos, a deputy district attorney, was disciplined for his complaints about his supervisors’ actions that he wrote in an internal office memorandum.  The Supreme Court found that Cagellos’s free-speech rights were not infringed when he was disciplined, because the memo was written in his capacity as deputy district attorney, and a government agency is entitled to review the work of an employee even if that work involves speech.

The Court was careful to point out, however, that when a public employee speaks  on a matter of public concern as a citizen, and not as a government official, the employee is entitled to most of the free-speech rights of any citizen.  Yes, I said “most” and not “all.”  The Court said that a government agency has some discretion to restrict the non-work-related speech of its employees if that speech affects the agencies operations.

From the facts that I have (which isn’t the same as the facts a judge or jury would have after a trial), Najera was not speaking in his capacity as a public official.  Therefore, the rights of his employers to censor his speech are very limited.  I have not heard anything that indicates that his blogs and tweets have affected his employer’s operations.  Therefore, I think, based on my very limited knowledge of the facts, that Najera would have the protection of the law, namely the First Amendment of the U.S. Constitution, for his speech.  He probably can’t be fired for his blogging and tweeting.  But, like any good skeptic, I’m open to more information that might change my mind.

Note that these protections are less available to employees of private companies (or individuals) than government employees.  An employee in the private sector can, and often does, give up a right to speech as part of the employment contract.  Wal-Mart would have the right to fire me for saying that it’s a dangerous, conspiratorial organization out for world domination, more than the Environmental Protection Agency would.  Perhaps this is what the union organizer was referring to, but he or she missed the very important fact that Najera was an employee of a public, and not private, employer.

The importance of government-employee speech

In Garcetti, the Supreme Court noted that giving public employees free-speech rights protects not only the employees, but also society.  Government employees, after all, are in the best position to report on the activities of the government agencies for which they work.  It is in society’s best interest to give government employees the ability to inform the public about the activities of, and problems in, a government agency, the Court indicated.

The evils of suppressing Najera’s speech

I was not familiar with Najera/EpiRen.  But several people whose opinions I trust have expressed how wonderful he is.  Therefore, I accept that he is wonderful.  (Fellow skeptics, name that logical fallacy.)  But that is completely irrelevant to my opinions on this situation.

Najera’s employers (no, I’m not going to comment on the “pharmaceuticals entrepreneur,” and not because I’m afraid that he’ll sue me if I say something nasty about him) have acted rashly in stifling Najera’s outside activities, even if they relate directly to his job.  No, make that especially because they relate directly to his job.

As the Supreme Court expects, I want public employees to speak out about subjects related to their jobs.  Who better to tell me what’s going on in a government agency than someone who works there every day?  Who better to tell me about public health than someone who works in that field?

I think Najera’s employers might make things worse for themselves for what they have done.  I suspect that most people who find out about this would trust Najera’s agency less now than they did before.  They have all the appearances of hiding something, and of being afraid of their employees talking without an official sanction of everything uttered.

A personal note

Some of you may have noted that my real name is not on this blog.  That’s because I work for a public agency, and I do not want my agency connected with anything I write.  I am, of course, speaking entirely on my own, and my agency has nothing to do with this.

If, someday, somebody discovers who I am and complains to my employers, and if they order me to stop writing public comments on the law, I most likely will.  I completely understand Najera’s decision to stop his outside activities in favor of his job.  I only wish his employers would encourage, rather than prohibit, his outside activities in the interest of public health.

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Filed under Free speech