Interesting Libel Decision Arising from the Vaccine / Autism Debate

From Arthur v. Offit (E.D. Va. Mar. 10, 2010) (some paragraph breaks added):

This action arises out of a brief passage in a lengthy magazine article profiling Defendant Paul Offit, M.D., a Philadelphia pediatrician and infectious disease specialist.

Plaintiff Barbara Loe Arthur (also known as Barbara Loe Fisher) is the co-founder and acting president of the National Vaccine Information Center (“NVIC”). NVIC is a non-profit organization founded in 1982 and is dedicated to the prevention of vaccine injuries and deaths through public education. Plaintiff is a public interest advocate, public speaker, and media source for information about mandatory vaccinations….

This action arises from an article published in the November 2009 issue of Wired and on its Internet website, Wired.com, entitled “An Epidemic of Fear: One Man’s Battle Against the Anti-Vaccine Movement” …. The article focuses on the public debate over mandatory vaccinations of infants, children and adolescents.

Ms. Arthur has filed suit claiming that a two-word quotation (“She lies”) in the 2009 Wired article constitutes a false statement of fact about her that will cause people to conclude she is not a person of honesty or integrity.

The article is a profile of Defendant Offit, who is a “leading national advocate for mandatory vaccination” and someone “to whom many in government, industry, and the media turn for information.” Offit is a physician employed by the Children’s Hospital of Philadelphia and is a Professor and Chief of Infectious Diseases in the Department of Pediatrics at the University of Pennsylvania School of Medicine. He is also the co-inventor of a vaccination for rotavirus, a disease which causes severe diarrhea and dehydration in young children, sometimes resulting in hospitalization and/or death.

The article’s profile of Offit is placed in the larger context of the public debate over systematic vaccination of children recommended by the Centers for Disease Control and Prevention, including Offit’s advocacy in favor of the vaccine protocol and opponents’ often sharp criticism both of Offit’s position on this issue as well as of him personally. According to the article, “Offit has become the main target of a grassroots movement that opposes the systematic vaccination of children and the laws that require it,” claiming that vaccines can cause autism and/or otherwise injure children. In response, the article reports, Offit “boldly states — in speeches, in journal articles, and in his 2008 book Autism’s False Prophets — that vaccines do not cause autism or autoimmune disease or any of the other chronic conditions that have been blamed on them,” an assertion he “supports … with meticulous evidence.” As Plaintiff describes it in her Complaint, the article “depicts” Offit “as a lone and heroic pediatrician/scientist who is the primary public voice in favor of mandatory vaccination, a position described as rational and science-based.”

The article reviews in detail the history of how widespread vaccinations have eradicated diseases like smallpox, polio, rubella, measles, and the bacteria that causes Hib meningitis. The article also describes several recent scientific studies concluding that parents’ decisions to opt out of vaccination programs have resulted in increased outbreaks of serious diseases — including, for example, pertussis, commonly known as whooping cough — “a highly contagious bacterial disease that causes violent coughing and is potentially lethal to infants,” the incidence of which has increased from 1,000 cases in 1976 to 24,000 cases in 2004. The article also examines the possibility that parents in the anti-vaccine camp, who first see evidence of autism at the same age as many vaccines are administered § 18 to 24 months), are “ignor[ing] the old dictum ‘correlation does not imply causation’ and stubbornly persist[ing] in associating proximate phenomena.” And, the article addresses several studies in which “scientists have chased down some of th[e] theories” advanced by the anti-vaccine movement, but have not found any link between vaccines and conditions like autism.

The article observes that “[b]eing rational takes work, education, and a sober determination to avoid making hasty inferences, even when they appear to make perfect sense.” The article thus comes out “in favor of the general safety of vaccines and a presumed medical necessity for mandatory vaccination.”

In addition to an extended discussion of the merits of the vaccination issue, the article also describes the harsh personal attacks lodged against Offit by his opponents. Its first sentence states, “To hear his enemies talk, you might think Paul Offit is the most hated man in America.” As the article goes on to describe, Offit’s critics point to the royalty he receives for having co-invented the rotavirus vaccine as “Exhibit A in the case against” him, supposedly “proving his irredeemable bias and his corrupted point of view.” The article also describes how he has been physically threatened by critics, as well as how he is the subject of a hostile website (pauloffit.com) and how people regularly tamper with the Wikipedia entry about him.

It is in this context that, as part of the 7,500-plus word profile, a few paragraphs are devoted to one of his critics, Plaintiff Barbara Loe Arthur…. The article portrays Ms. Arthur as the anti-vaccine “movement’s brain” and describes her organization as “the largest, oldest, and most influential of the watchdog groups that oppose universal vaccination.” The article characterizes Ms. Arthur as a “skilled debater,” who “has long been the media’s go-to interview for what some in the autism arena call ‘parents rights’ ” and whose speech at an autism conference in Chicago was delivered with “characteristic flair.” In that speech, Plaintiff “mentioned Offit frequently” and “cast him as a man who walks in lockstep with the pharmaceutical companies and demonizes caring parents.” …

In response to [Arthur’s] positions, Defendant Offit is quoted in the article as saying that ” ‘Kaflooey theories’ make him crazy” and that Plaintiff “makes him particularly nuts as in ‘You just want to scream’ ” because “She lies.” He goes on to say that Plaintiff “inflames people against me. And wrongly. I’m in this for the same reason she is. I care about kids. Does she think that Merck is paying me to speak about vaccines? Is that the logic?”

In her Complaint, Plaintiff contends that, Defendant Offit’s statement “she lies,” is defamatory and that he and the Magazine Defendants have published a false statement of fact and have committed defamation per se, causing her to appear “odious, infamous, and ridiculous.” …

[S]everal Fourth Circuit cases make clear that including a remark by one of the key participants in a heated public-health debate stating that his adversary “lies” is not an actionable defamation. Indeed, both the nature of the statement — including that it was quoting an advocate with a particular scientific viewpoint and policy position — and the statement’s context — a very brief passage in a lengthy description of an ongoing, heated public health controversy — confirms that this is a protected expression of opinion….

The importance of “evaluat[ing] complaints early in the process” in response to Rule 12(b)(6) motions has been emphasized by the Supreme Court and the Fourth Circuit in as a way to deal with “the recognized problems created by ‘strike suits’ and the high costs of frivolous litigation.” Moreover, because the defense of baseless defamation claims imposes an additional cost, in the form of potentially deterred speech, federal courts have historically given close scrutiny to pleadings in libel actions. See As a result, courts in Virginia and the Fourth Circuit routinely dismiss at the outset defamation claims that are based on constitutionally protected speech by media defendants….

In analyzing [whether a statement is an actionable false statement of fact or a constitutionally protected statement of opinion], courts must focus on both “the plain language of the statement” and “the context and general tenor of its message,” keeping in mind that the ” ‘verifiability of the statement’ ” is a touchstone “because a statement not subject to objective verification is not likely to assert actual facts.” A statement is therefore nonactionable as a matter of law when — considering its language, context, and tenor — the speaker is “plainly express[ing] ‘a subjective view, an interpretation, a theory, conjecture or surmise, rather than … claim[ing] to be in possession of objectively verifiable … facts.’ ”

In this case, the article’s quotation of Defendant Offit’s comment that Plaintiff “lies” cannot reasonably be understood to suggest, as the Complaint alleges, that Plaintiff is “a person lacking honesty and integrity … [who should be] shunned or excluded by those who seek information and opinion upon which to rely.” Rather, the context of the remark — in a lengthy article describing an emotional and highly charged debate about an important public issue over which Defendant Offit and Plaintiff have diametrically opposed views — plainly signals to readers that they should expect emphatic language on both sides and should accordingly understand that the magazine is merely reporting Defendant Offit’s personal opinion of Ms. Arthur’s views.

In particular, the language immediately surrounding the challenged statement, in which Defendant Offit decries “Kaflooey theories” that make him “want to scream,” is precisely the kind of “loose, figurative” language that tends to “negate[ ] any impression that the speaker is asserting actual facts.” Against this contextual backdrop, the declaration “she lies” is plainly understood as an outpouring of exasperation and intellectual outrage over Plaintiff’s ability to gain traction for ideas that Defendant Offit believes are seriously misguided, and not as a literal assertion of fact. In other words, the remark by Defendant Offit is, on its face, merely an ” ‘imaginative expression of the contempt felt’ toward his adversary,” which can only be viewed as “an impassioned response to the positions taken by [that adversary], and nothing more.”

From the perspective of Defendants [publisher and journalist], this impassioned response by Defendant Offit toward Plaintiff was itself illustrative of the rough-and-tumble nature of the controversy over childhood inoculations and therefore worthy of mention in the Wired article, which sought to highlight, among other things, the intense nature of the vaccine debate. Given that context, publishing the quotation from Defendant Offit that Plaintiff “lies” is simply not actionable….

Moreover, in the context of the Wired article, the statement “she lies” lacks the provably false content that is required to support a defamation action. Not only does Plaintiff’s claim of the statement’s falsity invite an open-ended inquiry into Plaintiff’s veracity, but it also threatens to ensnare the Court in the thorny and extremely contentious debate over the perceived risks of certain vaccines, their theoretical association with particular diseases or syndromes, and, at bottom, which side of this debate has “truth” on their side. That is hardly the sort of issue that would be subject to verification based upon a “core of objective evidence.”

The same prospect of litigation over unresolved — and perhaps unresolvable — scientific arguments was among the reasons that the accusations of lying in [an earlier case] were deemed to be nonactionable. Courts have a justifiable reticence about venturing into the thicket of scientific debate, especially in the defamation context.

Plaintiff may wish to defend in Court the credibility of her conclusions about the dangers of vaccines, the validity of the evidence she offers in support of those theories, and the policy choices that flow from those views — as well as her own credibility for having advanced those positions. These, however, are academic questions that are not the sort of thing that courts or juries resolve in the context of a defamation action. Rather, an actual statement of fact that is capable of being proven true or false is required as a matter of law. In this context, Plaintiff has not alleged such a statement and has therefore failed to state a claim upon which relief may be granted. An appropriate Order shall issue.