A Legal Development

I’ve said on previous occasions that Daylight Atheism is a weblog devoted to commentary and analysis, not breaking news. However, I’ve heard of a case sufficiently noteworthy that I think it merits an exception.

Last month, the indomitable P.Z. Myers of Pharyngula posted a review of Stuart Pivar’s book Lifecode, which purports to explain the embryonic development of organisms through topological manipulation of an initially fluid form. Myers’ review, though sympathetic to the principles espoused, was negative on balance:

I am thoroughly unconvinced, and am unimpressed with the unscientific and fabulously concocted imagery of the book.

After the initial review was posted, Pivar wrote in to object vociferously, and promised a second, revised edition which would address these criticisms. This was delivered, and Myers read it and posted a second review, which was similarly unfavorable.

Pivar’s response, apparently, was to sue P.Z. Myers and Seed Media (publisher of ScienceBlogs.com, which includes Pharyngula) for “assault, libel and slander”.

I haven’t yet seen comments about this lawsuit on Pharyngula or on any of the other Science Blogs sites. Quite possibly, as defendants in the suit, they’re required to keep quiet about it. I came across this story through two other, independent blogs, Boing Boing and SciAm Observations.

I am not a lawyer, but I strongly suspect this suit will be dismissed immediately if it ever makes it to court. I don’t know what specific grounds Pivar is alleging, but in the United States of America, book reviews do not lose their First Amendment protection because they are negative, not even if the author’s feelings are hurt. Indeed, the very purpose of the First Amendment is to protect speech that others may find disturbing or upsetting, but that is part of the free interchange of ideas and opinion that is vital to a healthy, democratic society. The bar for slander and libel is deliberately set high, requiring the plaintiff to show that the defendant made false statements and did so either with knowledge of, or reckless disregard for, their falsity, and is especially high in cases like this one where the post was explicitly intended as a review and critique. (See the Electronic Frontier Foundation‘s rundown.)

If Pivar won his lawsuit, unlikely as I believe that to be, it would have a chilling effect on book reviews on the Internet and beyond. Seemingly any negative review that wounds the author’s feelings might be grounds for a lawsuit. Hopefully, the suit will be dropped soon, but if not, I hope Seed Media is willing to fight for the free-speech rights of its bloggers. I’ll post updates on this story as they become available.

About Adam Lee

Adam Lee is an atheist writer and speaker living in New York City. His new novel, Broken Ring, is available in paperback and e-book. Read his full bio, or follow him on Twitter.

  • Shawn Smith

    If the lawsuit is dismissed (as I hope it will be), it will be a welcome change from the events in Turkey. The ravings of a creationist Turk were soundly criticized by some of the Scienceblog community and he got a Turkish court to ban all the traffic from the Scienceblogs site in Turkey.

  • Shawn Smith

    If the lawsuit is dismissed (as I hope it will be), it will be a welcome change from the events in Turkey. The ravings of a creationist Turk were soundly criticized by some of the Scienceblog community and he got a Turkish court to ban all the traffic from the Scienceblogs site in Turkey.

  • Jennifer

    As a writer, I’m prepared at all times to deal with the inevitability that someone will not like my work. The First Amendment, which so wonderfully gives me the right to write anything in the first place, also gives other people the right to tell me I suck at it. If I have a problem with their insults, then it’s my job to learn to write better, not to try and gag them because my poor little ego can’t take it. I hope this case is dismissed immediately.

  • Jennifer

    As a writer, I’m prepared at all times to deal with the inevitability that someone will not like my work. The First Amendment, which so wonderfully gives me the right to write anything in the first place, also gives other people the right to tell me I suck at it. If I have a problem with their insults, then it’s my job to learn to write better, not to try and gag them because my poor little ego can’t take it. I hope this case is dismissed immediately.

  • http://www.patheos.com/blog/daylightatheism/ Ebonmuse

    I’m also wondering if Pivar truly thinks he’s going to attract favorable attention by suing someone who wrote a bad review of his book. Not only will that make other book reviewers (who might otherwise have given you publicity) not want to touch your book with a ten-foot pole, it’s highly unlikely to endear you to the reading public. The term “crackpot” comes to mind here.

  • http://www.brad-johnson.com/forum/index.php Kevin Malone

    I think the worst PZ Myers has thrown at Pivar was to call him a “crackpot”. Even so, and even if his review was a lot harsher, I don’t see any grounds. It’s not like PZ Myers made any threats on his life or his family, so what’s his case? That PZ Myers was really, really mean to him?

  • Bechamel

    Um, Shawn, if you were talking about this, it was WordPress that was censored, not ScienceBlogs.

  • http://www.patmuchmore.com P4limpsest

    This is a point that is lateral to the one being discussed, but it’s something I’ve been thinking about recently and I’d like to see some thoughts on this.

    I was discussing a similar issue with a friend and he roundly criticized me for referring to First Amendment. He pointed out that people tend to over use the First Amendment in such discussions, because all it guarantees is that Congress shall make no law prohibiting free speech. This is more limited than the sweeping protection Ebonmuse seems to be calling on in this article. This is also a big point in the recent controversy involving D.L. Hughley–wherein another private citizen is urging a boycott of his performances and trying to pressure comedy clubs to not allow him in. Hughley keeps bringing up his first amendment rights, and the woman that’s mad at him keeps pointing out that isn’t the Congress.

    Are we coming back to the issue of negative liberty vs. positive liberty that Ebonmuse brought up in an earlier libertarianism post? Should we be advocating a more expansive form of the First Amendment that forbids other entities such as the courts and private citizens from harming freedom of speech? Or does the current form already give us such protections and my friend is just being overly literal? Or am I missing the point entirely? Very possible.

  • Shawn Smith

    Thanks, Bechamel. You’re right; I’m wrong. That’s what I get for posting before completely checking the facts.

    P4limpsest,

    Your friend needs to realize that the 14th Amendment incorporated all the other amendments down to the states. Speech is considered one of the fundamental rights, which will be protected without any strong compelling interest to prohibit said speech.

  • http://www.patmuchmore.com P4limpsest

    Thanks for the 14th amendment point. I went and read some sites about it, and although it’s still apparently controversial, most legal scholars seem to agree that at least most of the Bill of Rights (including definitely the right of free speech and religion) now apply to the states. However, I’m not sure that entirely addresses my friend’s core argument–which is that a private citizen is not barred from trying to shut someone up. Does this guy cross the line by trying to bring it into the courts instead of just vociferously complaining? Does that make it rise to the level of a First Amendment violation? What’s confusing me is this: although it would seem to be a violation of the amendment for the government to restrict speech, I don’t see how a court could hold that a private citizen is violating it. It seems like a weird Catch-22–if a court finds in favor of Pivar, then government force will be getting used to violate the right to free speech; but the court can’t say that Pivar is violating the right to free speech in order to rule against him.

  • Shawn Smith

    My (admittedly layman’s) understanding is as follows: Hughley cannot use the government to force comedy clubs to host him, and Pivar cannot use the government to force the comedy clubs to not host Hughley. He/She is fully free to call for boycotts, and the clubs are fully free to listen to or ignore him/her. Hughley is not having his free speech rights violated by not being able to say them on a stage, when the owner of the stage doesn’t want him there. I.e. being a celebrity, and obtaining a majority of your income from speaking does not give you any more right to speak freely than anyone else in the country.

  • http://spaninquis.wordpress.com/ John P

    Yes, as an attorney, I’m not so sure First Amendment law is what the Myers case will turn on. It’s defamation (libel and slander – one is written, the other spoken) law that he’s being sued under (I don’t understand the assault aspect – need more info).

    While we all have 1st Amendment rights to free speech, defamation is actually a limitation to that right. You are not allowed to say things about others that are untrue, and that cause actual hard damages. Both points must occur, unless you get into the area of defamation per se, where if the untruth alleges a crime, immoral act, loathsome disease, etc, then you don’t need actual out of pocket damages.

    Defamation is a tort, i.e. a claim for a personal injury. A good defense may be the First Amendment, especially if the Defendant is deemed a public figure, which an author might be. Under NY Times v. Sullivan, there must be a showing of actual malice, something that is very difficult to show.

    So, I’d say that Pivar probably has a snowball’s chance in hell (assuming such a location existed) of winning the case.

    However, don’t forget the costs of litigation. Many rich, powerful people, (and I understand that Pivar is a wealthy businessman) often use the defamation cases to try to dampen or chill the free speech rights of people who don’t have the financial wherewithal of paying for a defense. The mere threat of litigation will often cause people of modest means to back down quickly, and the chilling effect on others is often the actual intent of the litigation. It’s not something to be taken lightly.

    Myers is a professor at a small college, with a family. I don’t know the financial resources of Seed, but this could be seriously expensive if the litigation drags on.

  • http://spaninquis.wordpress.com/ John P

    Yes, as an attorney, I’m not so sure First Amendment law is what the Myers case will turn on. It’s defamation (libel and slander – one is written, the other spoken) law that he’s being sued under (I don’t understand the assault aspect – need more info).

    While we all have 1st Amendment rights to free speech, defamation is actually a limitation to that right. You are not allowed to say things about others that are untrue, and that cause actual hard damages. Both points must occur, unless you get into the area of defamation per se, where if the untruth alleges a crime, immoral act, loathsome disease, etc, then you don’t need actual out of pocket damages.

    Defamation is a tort, i.e. a claim for a personal injury. A good defense may be the First Amendment, especially if the Defendant is deemed a public figure, which an author might be. Under NY Times v. Sullivan, there must be a showing of actual malice, something that is very difficult to show.

    So, I’d say that Pivar probably has a snowball’s chance in hell (assuming such a location existed) of winning the case.

    However, don’t forget the costs of litigation. Many rich, powerful people, (and I understand that Pivar is a wealthy businessman) often use the defamation cases to try to dampen or chill the free speech rights of people who don’t have the financial wherewithal of paying for a defense. The mere threat of litigation will often cause people of modest means to back down quickly, and the chilling effect on others is often the actual intent of the litigation. It’s not something to be taken lightly.

    Myers is a professor at a small college, with a family. I don’t know the financial resources of Seed, but this could be seriously expensive if the litigation drags on.

  • Shawn Smith

    Sheesh–I need to read more carefully. I thought, when responding to P4limpsest, that Pivar is the person trying to stop D.L. Hughley. I am obviously wrong. The person I identify as Pivar in my post is actually the woman who is calling for the boycotts. I’m sorry for the misunderstandings on my part. Shutting up now.

  • Shawn Smith

    Sheesh–I need to read more carefully. I thought, when responding to P4limpsest, that Pivar is the person trying to stop D.L. Hughley. I am obviously wrong. The person I identify as Pivar in my post is actually the woman who is calling for the boycotts. I’m sorry for the misunderstandings on my part. Shutting up now.

  • http://blog.myspace.com/ozzyrules Chris

    I saw this first on Bad Astronomy, which certainly counts as a science blog. Here’s the link: http://www.badastronomy.com/bablog/2007/08/21/pz-being-sued-by-crackpot

    I doubt much will come from this, though I wish there were laws that would punish the people who make frivolous lawsuits (other than paying the other party’s legal fees, which never truly cover the costs incurred). Throwing on 100 hours of community service would probably help prevent so many stupid cases coming to court.

  • http://www.patheos.com/blog/daylightatheism/ Ebonmuse

    Chris:

    I doubt much will come from this, though I wish there were laws that would punish the people who make frivolous lawsuits…

    There are: they’re called SLAPP laws. I note that New York, where this case was filed, has one.

    P4limpsest:

    However, I’m not sure that entirely addresses my friend’s core argument–which is that a private citizen is not barred from trying to shut someone up. Does this guy cross the line by trying to bring it into the courts instead of just vociferously complaining?

    Yes. The First Amendment protects your right to speak, but it does not require that other people provide you a forum or pay you for doing so. Organizing a boycott, or complaining to someone’s sponsors, because you don’t like what they have to say is entirely legitimate activity. But when you bring the government into it – when you demand, through the courts, that the state itself punish someone for saying something – then that is a different matter, and one that is covered by the First Amendment.

  • http://www.patheos.com/blog/daylightatheism/ Ebonmuse

    Chris:

    I doubt much will come from this, though I wish there were laws that would punish the people who make frivolous lawsuits…

    There are: they’re called SLAPP laws. I note that New York, where this case was filed, has one.

    P4limpsest:

    However, I’m not sure that entirely addresses my friend’s core argument–which is that a private citizen is not barred from trying to shut someone up. Does this guy cross the line by trying to bring it into the courts instead of just vociferously complaining?

    Yes. The First Amendment protects your right to speak, but it does not require that other people provide you a forum or pay you for doing so. Organizing a boycott, or complaining to someone’s sponsors, because you don’t like what they have to say is entirely legitimate activity. But when you bring the government into it – when you demand, through the courts, that the state itself punish someone for saying something – then that is a different matter, and one that is covered by the First Amendment.

  • http://www.patheos.com/blog/daylightatheism/ Ebonmuse

    Some more posts on the case: Andrea Bottaro at The Panda’s Thumb, Timothy Sandefur at Positive Liberty, Jim Lippard at The Lippard Blog (with a copy of the actual complaint).

    The opinions I’ve seen are uniformly critical of Pivar, most of them strongly so. I don’t know what response he was hoping for, but I doubt this is it.

  • http://www.patheos.com/blog/daylightatheism/ Ebonmuse

    It appears Pivar’s suit has now been dropped. That didn’t take long.

  • http://www.patheos.com/blog/daylightatheism/ Ebonmuse

    It appears Pivar’s suit has now been dropped. That didn’t take long.