Monday, August 20, 2007

Libel lawsuit against Science Blogger P.Z. Myers

Stuart Pivar, an "eccentric collector and inventor," has filed a $15 million libel lawsuit in New York against P.Z. Myers of the Pharyngula blog and Seed Media Group, publisher of Seed magazine and owner of ScienceBlogs, for referring to him as "a classic crackpot" in reviews of his book Lifecode.

The complaint identifies Pivar as "an industrialist, inventor, and scientist," the founder and chairman of the board of Chem-tainer Industries, and co-founder (with Andy Warhol) and original funder of the New York Academy of Art, "a classical graduate school for painting and sculpture, whose current patron is H.R.H. Charles, Prince of Wales." It claims that Pivar regularly discussed his book with Stephen Jay Gould, who "was working on a refutation of the fundamentalist Darwinian theory of evolution."

The complaint claims that Myers' remarks led to Neil de Grasse Tyson withdrawing a review of the book and causing "considerable mental and emotional distress," tortious interference with the plaintiff's business relationships as a "scientist and scientific editor," and "loss of book sales and diminished returns on ten years of funded scientific research in special damages" exceeding $5 million.

The three claims of the complaint are, first, for declaratory relief in removing defamatory statements from the web and an injunction to prevent further such statements; second, for $5 million in special damages from the "tortious interference with business relations"; and third, for $10 million in damages for defamation, emotional distress, and loss of reputation.

Seed Media Group may be able to have itself dismissed as a defendant on the libel claim via the safe harbor on online publication of defamatory statements by a user of a site, which has been successfully used as a defense by America Online (in Zeran v. AOL and Blumenthal v. Drudge and AOL) and ElectriCiti (in Aquino v. ElectriCiti).

I suspect that Pivar will have a difficult time proving the claimed damages, as well as overcoming the truth defense to a defamation claim, but I'm curious to see if any lawyers (Timothy Sandefur?) have an opinion. The complaint looks a little odd and sloppy to me--it initially refers to "tortuous" interference rather than "tortious," includes the odd paragraph about the Art Academy, and generally doesn't appear to me to be a well-crafted case--but I am not a lawyer.

The text of the complaint may be found here (PDF).

P.Z. Myers' reviews of Pivar's book may be found here and here.

Another review of Pivar's book, authored by his friend Richard Gordon, may be found here.

Pivar's claim that Stephen Jay Gould would not have signed the NCSE's "Project Steve" statement is discussed at CSI's website.

Christopher Mims has commented on the lawsuit at Scientific American's blog, and Brandon Keim at Wired Science has a good summary of the dispute.

UPDATE: I've just read through both of P.Z. Myers' blog post reviews again, and I note that the alleged defamatory reference, "a classic crackpot," appears in neither of them. In the earlier post, Myers says of Pivar's book: "It seems no expense was spared getting it published, which is in contrast to the content, and is unusual for such flagrant crackpottery." The later post does not contain the word "crackpot." The post that Pivar is complaining about is another Myers post, titled "Pseudoscience by press release", where Pivar himself commented several times, including to write, "I will ignore your insulting and intemperate language and concentrate on the substantive issues." Apparently he changed his mind on that point.

UPDATE (August 21, 2007): Blake Stacey has put together a nice chronological summary of who said what when, along with links to commentators. He points out that the "review" by Neil de Grasse Tyson which was on Pivar's website was a quote created by taking one piece out of context and fabricating another--it's no wonder that Tyson asked for Pivar to remove it.

Andrea Bottaro summarizes the case with links to more sources about Pivar's Stephen J. Gould claims at The Panda's Thumb, and Timothy Sandefur weighs in with an evaluation of the legal issues at Positive Liberty, where he calls Pivar's suit a case of "abus[ing] the legal process to try to intimidate and bully people for no good reason" and concludes that "Myers unquestionably has the right to call Pivar a crackpot, and we have the right to consider this lawsuit as proof of the fact."

UPDATE (August 22, 2007): Ed Darrell at Millard Fillmore's Bathtub has a nice article about how we determine what a "crackpot" is. Pivar seems to fit quite well.

A commenter at Pharyngula has observed that Pivar's attorney was just admitted to the New York Bar in 2005 and went to law school in the UK.

UPDATE (August 24, 2007): Retired UCSD law professor Peter Irons (well versed in the law as it pertains to intelligent design) has written an excellent letter to Stuart Pivar which strongly recommends that Pivar withdraw his suit rather than quickly lose and become subject to monetary sanctions. Irons also says that he knew Gould from the 1950s until his death, and was his neighbor for many years, and that if Gould were alive today he'd probably have a viable defamation action against Pivar.

UPDATE (August 29, 2007): Pivar has withdrawn his libel suit (see Dispatches from the Culture Wars and Pharyngula). But now his attorney, Michael Little, thinks he has a case against Peter Irons! Kudos to Pivar for doing the right thing.

UPDATE (September 5, 2007): More entertainment regarding Michael Little may be found at Dispatches from the Culture Wars.

19 comments:

John Pieret said...

The complaint looks a little odd and sloppy to me ...

I am a lawyer and it looks less-than-stellar in its execution to me too.

Another big hurdle for Pivar may be that his very boasting about being in tight with Gould and Gould's alleged soon-to-be-but-for-dying "refutation of the fundamentalist Darwinian theory of evolution," may count towards making Pivar a "public figure" and require a showing of "actual malice" on PZ's part, a very hard standard to meet.

I have some more to look at but will probably blog on it later tonight.

Reed said...

Safe Harbor may not work here because PZ is not a simple user of Seed's site. He has a contract with them, and they pay him as a contractor to write for their website.

However, I believe the contracts that Seeds makes their bloggers sign also makes the bloggers solely responsible for such suits.

Jim Lippard said...

Reed: My understanding is that Seed exercises no editorial control over the individual blogs, but merely provides hosting and shares advertising revenue.

John Pieret said...

I note that the alleged defamatory reference, "a classic crackpot," appears in neither of them.

PZ did call Pivar a "classic crackpot" in this post: Pseudoscience by press release.

Seed can't escape liability by claiming not to have editorial control (which they could exercise by simply refusing to host PZ's blog). If they're smart, however, they will do a joint defense with PZ and pay for it. If they let PZ be bled dry by Pivar's strategic suit, they will lose whatever readership they have.

Jim Lippard said...

The safe harbor I had in mind was Section 230 of the Communications Decency Act, "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." That was successfully used by AOL in Sidney Blumenthal's lawsuit against defamation by Matt Drudge, even though AOL hosted his content and paid him for it. Perhaps some facts of the matter tie Seed and Myers more closely together, e.g., the fact that Seed occasionally suggests content for the bloggers to write about, or that Seed has some standardization of the format of the blog. But the fact that Myers is an independent contractor, rather than employee, would seem to me a point in favor of Seed's ability to use this argument.

John Pieret said...

I won't pretend to be an expert on that section or web law in general but a quick perusal seems to indicate that an "interactive computer service" is meant more in the sense of an ISP or (the old) AOL or an employer who provides access for business purposes other than disseminating opinion and news. Seed, I think, will have trouble showing that sort of detachment. It is even advertizing the recent meeting of the bloggers at their offices. Its relationship with the bloggers isn't simply giving someone access to the web; it selected and sought out people in the science field for its blogs, making it more a "content provider" than merely a service provider.

I have posted a brief overview of the situation here.

Jim Lippard said...

John: You'd think so, but look at how broadly the safe harbor applied in Barrett v. Rosenthal--it applied to an individual, quoting another individual in a newsgroup posting. The facts there are different than this case--Myers wasn't quoting someone else--but it does show that the law has been held to apply far more broadly than to ISPs.

billposer said...

I was surprised by the idea that calling someone a "crackpot" could be actionable since it seems to be in the nature of an opinion rather than a statement of fact. The complaint does cite a case, from the Mississippi Court of Appeals, in which this epithet was held to be defamatory, but I suspect that it is an isolated ruling, unless it held that calling a physician a "crackpot" is different from other cases in being comparable to calling him a "quack".

John Pieret said...

Heh. Lawyers live on making subtle distinctions. The key to these rulings (not that I've looked at them in any depth) is the notion of "republication." Essentially, people who provide forums for others to discuss matters or who merely pass along the (clearly identified?) words of others are protected. Seed hasn't set up a site (like Blogger) where people can just create their own blogs by a free registration. I can't set up a blog on SB. That is control of the content much greater than I've seen in any of the case law I've looked at re the CDA.

Interestingly, the comments to blog posts seem to fit the CDA standard much better than the blogs themselves. But all this is my impression based on a quick read of a few sources. It'd take a lot of research to give a really informed opinion.

As to the status of "crackpot" as opinion, one important fact in the Mississippi case was that the potential defamer (the case merely held that the claim couldn't be dismissed on motion, not that it was actually defamation) was speaking to a person he knew to be a patient of the doctor and, combined with calling the doctor a "quack" (a much more specific claim about his competency), was sufficient to send the case to a jury.

Blake Stacey said...

Nice commentary on the legal questions. Oh, and thanks for the link! :-) I'll be collecting URLs in that post as this matter unfolds, as I did for Michael Behe's The Edge of Evolution.

Ed Darrell said...

Jeremy Bernstein, the physicist, wrote a fine article about crackpottery and crank science for The New Yorker some years back. Maybe he could be an expert witness? Or maybe Robert Park, who did a piece on bogus science for one of the education journals about four years ago.

scott said...

I posted some legal analysis on this case here. The suit is patently frivolous.

NYC Legal said...

Web-law is an emerging field and takes it's lead from "real-world" law; as such Pivar and his LifeCode book may win in a court fight because PZ & Seed make no bones about being outrageous commentators if Pivar shows damages he could score big--I wish it was my case. By the way to see part of the theory Pivar promotes check out www.aninconvenienttheory.com

Jim Lippard said...

NYC Legal: What is the legal significance of P.Z. Myers being an "outrageous commentator"? Are you sure you're not Pivar's attorney? (How many NYC attorneys are there promoting/defending Pivar's work?)

olvlzl said...

Since I don't particulary like PZ or his cult or the kind of Jr. High discourse it consists of it's tempting to just watch, though I can't see any merit to the claims of libel.

I am, however, entirely opposed to the use of this kind of incident to promote laws limiting peoples' right to sue. The greatest proponent of "tort reform" are the industries that want to kill, injure and cheat people with impunity. PZ Myers and those who enjoy using gaudy language to insult people having their wings clipped is a small price to pay for the right of the people to enjoy at least those rights reserved by our corrupt legal system for corporations and the ultra-rich.

Jim Lippard said...

I haven't seen anyone arguing for a limitation on people's right to sue in this case--though shifting to a "loser pays winner's costs" model is something I've frequently seen advocated in other contexts. I've also seen arguments from insurance companies for a cap on liability claims, which I agree is a bad idea--but I like the loser pays idea.

Einzige said...

PZ has a cult?

olvlzl said...

Jim Lippard, I have read a number of comments implying that this suit is a waste of the court's time and public funds. While it might be found to be that the phrasing and tenor of the comments sounds like the press promotion of "tort reform". Pivar will be told if he has overstepped his rights to bring an action or if he has not proven his case within a preponderance of the evidence. Until then, he's within his rights to file, just as anyone else is.

Having read his blog and seen the kind of comments he gets, yes, I'd say there's a PZ cult.

Jim Lippard said...

Looks like commenter "NYC Legal" (above) was Pivar's PR flack Matthew Rich, who was posting comments on blogs criticizing the now-withdrawn Pivar libel suit, linking to that Pivar-promoting site. Rich is the guy who sent out the press release that prompted Myers to re-post his review of Pivar's book and make his "classic crackpot" comment.