Friday, August 16, 2013

SLAPP: where is progress on federal law? Is recent "AIDS denialism" case an example?

The SLAPP (Strategic Lawsuits Against Public Participation) problem deserves being followed, still.  
On April 15, 2013.  Public Citizen reported on a lawsuit against a South Carolina person by an Ohio company, Med Express, when she refuse to remove a negative review from EBay after a snafu over a customer service issue (a postage due amount).  The company wanted to keep a perfect “reputation”.  Paul Alan Levy has he story here.  If Ohio had an effective SLAPP law, of there was effective federal law, this wouldn’t happen.  EFF followed with an article April 25 by Adi Kamdar here

This summer, there is some disturbing noise on the web about a lawsuit by Clark Baker (Los Angeles, CA) against a Jeffery Todd DeShong in Texas, when DeShong created a couple of websites apparently intended to criticize or discredit Baker’s activity centered around apparent denials that HIV (or HTLV-3, or the appropriately scientifically identified retrovirus) causes AIDS.   (Do suits get filed in the state of the defendant, or the plaintiff?  Is this a matter of plaintiff’s forum shopping?  Apparently, there are some rules regarding subject matter and personal jurisdiction, a typical link from Nolo here; this case appears to be federal possibly based on the complaint amount.) Various news stores on smaller web sites (it doesn’t seem to have hit the main media yet) suggest that Baker claims that pharmaceutical companies make out big on AIDS medications and that people are unfairly prosecuted for transmitting HIV.  Well, it’s true that any defendant deserves representation, and it’s certainly possible that some drug companies behave wrongfully with respect to HIV.  But then the stories go on to say that DeShong is sued for disparaging Clark when DeShong attacks the theories of AIDS denial, and that DeShong’s use of two “reverse domain names” amount to trademark infringement. 
 The text of the lawsuit is here, and a typical  blog-posting story from the most mainstream site I could find, Techdirt, byTim Cushing, is here.   It would be good to see this covered on Huffington (I couldn’t find it there yet).

Public Citizen has a link on the case here,(note the mention of a Texas anti-SLAPP law on the "motion to dismiss" comment), and Bloomberg has a brief description inside this long article about many i.p. cases, here..  There is a link on Facebook to a report that apparently gives the plaintiff's side of the story, here
As for the “reverse domain name” problem, news stories say that ICANN accepted DeShong’s name use.  The practice of making domain names to parody or criticize another party is controversial in that it could mislead consumers in a “branding” sense.  But some courts have accepted the practice.  I’ll look at this again soon on my Trademark Dilution blog. 
But columns are saying that the suit is based on the idea of silencing criticism.  The defendant “should not be allowed to say that AIDS denialism is a hoax” (from Cushing, above).  That’s where SLAPP comes in.
First of all, the “opinion rule” is often useful in defamation cases.  It’s too bad that English does make the “subjunctive mood” as clear as do other languages, like French.
But there is no question that the overwhelming weight of scientific “opinion”, accepted as medical fact, is that HIV (or very similar retroviruses) causes AIDS.   It cannot be defamation to repeat what is accepted medical fact.  The logical inference that follows is that any entity (company, organization, or person) whose operation appears based on denying this fact may itself be called into question as to its motives and effectiveness. 
AIDS denialism (or HIV denialism) was common in the gay press in the 1980’s shortly after the announcement of the identification of HTLV-3 (aka HIV) in 1984 by (ironically maybe) the Reagan administration.   Some gay activists later told gay men “don’t take the test”.  I was living in Dallas at the time, and the epidemic there hit peak about two years later than in NYC and CA.   There was a horrible political climate in Texas then, and very draconian state legislation (HR 2138, proposed by the "Dallas Doctors Against AIDS")  that would have banned gay men (and lesbians) from most occupations was proposed.  It did die in committee.  The climate actually settled down a bit once a virus as identified and a test was announced, because it was possible to quell the right-wing theories of possible “secondary” transmission to “bystanders”.   I do recall that there was some denialism in a weekly paper called “The New York Native” published by Charles Ortleb (to which I subscribed my mail), and I do recall Duesberg.  There were wild theories about Plum Island and an arbovirus, African Swine Fever, which all fizzled.  There were theories about bizarre bacteria (particularly for KS) and fungi, which turned out just to be agents of “opportunistic infections”. 
In sum, it sounds as though this case should be viewed as a “SLAPP” example. It is important to remember that none of the cases would be impacted by the recently discussed proposed weakening of Section 230 of the 1996 CDA;  that would apply only to criminal laws.  But imagine a world in which service providers had to field SLAPP civil suits!   Just don't "imagine me naked."   

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