Definitions and Clarity
There are grave injustices occurring on both sides of this issue. On one end of the spectrum are libel laws such as those that as I understand it, exist in the UK that have the effect of silencing people who had, in my opinion, legitimate criticism such as Simon Singh. On the other end are people such as myself who are having our reputations ruined with libelous and defamatory postings on the internet and unless we are able to spend around $100,000 to sue and willing to be subjected to gross violations of privacy, are really powerless to do anything legally about it. Even for people who can afford it, sometimes the cure of suing is worse than the disease of having ones reputation damaged.
It occurred to me that both types of problems are due to a lack of clarity in definitions. I am not a lawyer and certainly no expert on the law, but the problem as I see it is more of a philosophical one than a legal one. It deals with very basic philosophical questions coming from the branch of philosophy known as epistemology, which deals with the question of how do we know what we know? What are facts of reality? Is there any such thing as a fact of reality? Can these facts be known or is everything subjective opinion? Also, even deeper ontological questions about whether there is a reality at all, that exists independently of our thoughts, are involved. The way these questions are addressed will have an impact on outcomes in our legal system.
Laws vary from state to state, but basically, my understanding is that in the US, to win a libel or slander case (libel applies to the written word, slander, to the spoken word), three things must be demonstrated [note again, I am not a lawyer, this is just my lay person's understanding so if any lawyers read this, please feel free to correct me if I am mistaken]:
1. That a factually false statement was publicly made about an individual or organization
2. That the person who made the statement did so knowingly with malicious intent and
3. That doing so damaged the reputation of the plaintiff
People are free to express their opinions, but they are not free to intentionally lie about an individual, especially when that lie damages their reputation. In other words someone could say that in their opinion, they think I am an immoral woman, but if they state that I had an affair with a certain married man and I did not and they deliberately lied, that would meet the first criteria for libel or slander.
Now let's go back and examine the philosophical premises behind this law. First of all, in order for there to be a factually false statement, there needs to be an underlying premise that an objective reality exists that would be the basis for such facts. Otherwise, facts would be meaningless. Furthermore, the law assumes that such facts are knowable, otherwise it would be futile to even try to take anything to court. So far, so good. It seems pretty clear cut. Just go to court, prove that someone made a factually false statement about you and did so maliciously and this harmed your reputation and you win. However, it's rarely that simple. Sometimes judgments get confused with facts and this appears to have been what happened in Simon Singh's case. He was sued for describing the chiropractic profession as "bogus". "Bogus" is a judgment, an opinion, an evaluation. Such judgments can be rational and based on facts or they can be irrational, so I am not meaning to convey that all judgments are equally valid. However, they are judgments rather than facts. A fact would be stating something specific that an individual had done, for example, stating that Dr. X was charging his patients $100,000 and used Device XYZ which he claimed had research to back it up when it did not, hence it was bogus. Bogus would be the evaluation of the individual, however it would be the facts that would be the basis of the case, are they true or false? Note that this really is a black and white issue. Either the doctor charged $100,000 or he did not. Either he used device XYZ or he did not. Either device XYZ had scientific evidence that it could cure disease or it did not. However, instead of being charged with facts that could be determined to be true or false, Singh, was charged with using a word "bogus". As I understand it, the charges are that he was saying the people had malicious intent when that was not what he was conveying at all and if one actually read what he wrote, that would be apparent. So here, one word got lifted out of context and poor Simon Singh finds years of his life taken over by having to fight this lawsuit. Needless to say, this can have a chilling effect on anyone considering criticizing something they consider to be bogus. It is worth noting that the UK is also the country where various forms of "alternative" treatments are licensed, which give them an air of legitimacy even if they lack scientific evidence to back them up. What would it mean to be a licensed "expert" of such a practice? But that would be a whole separate discussion I will leave for another time.
In the US, it is more difficult to win a libel case, but here, we have the opposite injustice, people having their reputations damaged who cannot get justice. Stephen Barrett is one of the victims of this form of what in my opinion is an injustice. He sued people for libeling him on the internet and he lost the case, even though false facts were being spread about him, such as calling him a delicensed physician when in fact he is retired and has never been disciplined by his profession. Jean Mercer has been smeared in a similar manner. Her detractors are saying that she failed to obtain a license to practice psychology when she did not "fail", she is a developmental psychologist, not a clinical psychologist and developmental psychology is research degree and not a licensed profession as clinical psychology is.
Another trick is to technically tell the truth but only tell part of the facts and present them in such a way that leads readers to false conclusions. For example, one blatant lie that is being told about me is that I was fired from FSU when I can prove I was not and left in good standing because I graduated. However, in other postings false impressions are created by saying that people made complaints to the dean and now I am no longer teaching there. In fact, there were letters written to my Dean by a therapist I had criticized, Ronald Federici, and some of his colleagues. However, what this misleading piece leaves out is the fact that my Dean decided to not take any action on these complaints because he told me he considered them completely irrelevant to my work at FSU. In fact, those complaints were made the summer of 2009 and my no longer teaching at FSU had nothing to do with those complaints and everything to do with the fact that I graduated and FSU social work does not hire their own PhD grads. So although technically the facts were correct, this really ought to qualify as libel, since it creates a completely misleading impression to the readers that I left under bad circumstances when nothing could be further from the truth.
What is being done to me is being rationalized because Dr. Federici stated in a letter he wrote to me that he feels he is the one who is being libeled and defamed by me. Oh really? I have never written or uttered any factually false statements about him or his work. The material on the ACT website, although I am not responsible for its content, is not libelous. He tried to have it removed for copyright violations and was unsuccessful with that as well, because they were fair use, properly cited quotes of things he said in his own word. He did the same for Charly Miller's website where she described diagrams he had in his book and expressed her opinion about it. Charly's website was down for the required 10 days to comply with DMCA but is now back up. Here we are talking about a genuine right to free speech. She did not commit copyright violations, nor did she commit libel. She was expressing her opinion and giving her evaluation about the restraint procedures for children that had been recommended in a book. What would have made it libel? It would have been libel if she had stated that he recommended procedures he had not recommended, in other words, if she had stated facts that were false, but she did not.
People do have the right to express their opinions and this is a very different matter from people who are anonymously lying about me that I was fired from FSU, did sexual favors for specific people they named in exchange for endorsements, and a number of other knowingly malicious lies that have been spread about me. Some people don't seem to be able to see the difference and perhaps it goes back to the highly subjectivist society we live in, where people do not see facts as facts, but instead, see everything as subjective. There seems to be an inability to distinguish facts from opinions and evaluations and I have to wonder if members of juries would be any better at making such a distinction.
I have been accused by people who are unable to distinguish between these two very different situations, that I am a "hypocrite" when really the basic nature of the criticism that ACT has made of Federici and the smear campaign against my colleagues and I by anonymous people are very different. I give this as an example of how great epistemological confusion exists over what is a fact and what is an opinion, a judgment, an evaluation. Of course, for people who buy into post-modernism or the new age maxim that we create "reality" and that there is no objective reality, this whole topic becomes even more problematic and I wonder how much of this is feeding into the problem.
It occurred to me that both types of problems are due to a lack of clarity in definitions. I am not a lawyer and certainly no expert on the law, but the problem as I see it is more of a philosophical one than a legal one. It deals with very basic philosophical questions coming from the branch of philosophy known as epistemology, which deals with the question of how do we know what we know? What are facts of reality? Is there any such thing as a fact of reality? Can these facts be known or is everything subjective opinion? Also, even deeper ontological questions about whether there is a reality at all, that exists independently of our thoughts, are involved. The way these questions are addressed will have an impact on outcomes in our legal system.
Laws vary from state to state, but basically, my understanding is that in the US, to win a libel or slander case (libel applies to the written word, slander, to the spoken word), three things must be demonstrated [note again, I am not a lawyer, this is just my lay person's understanding so if any lawyers read this, please feel free to correct me if I am mistaken]:
1. That a factually false statement was publicly made about an individual or organization
2. That the person who made the statement did so knowingly with malicious intent and
3. That doing so damaged the reputation of the plaintiff
People are free to express their opinions, but they are not free to intentionally lie about an individual, especially when that lie damages their reputation. In other words someone could say that in their opinion, they think I am an immoral woman, but if they state that I had an affair with a certain married man and I did not and they deliberately lied, that would meet the first criteria for libel or slander.
Now let's go back and examine the philosophical premises behind this law. First of all, in order for there to be a factually false statement, there needs to be an underlying premise that an objective reality exists that would be the basis for such facts. Otherwise, facts would be meaningless. Furthermore, the law assumes that such facts are knowable, otherwise it would be futile to even try to take anything to court. So far, so good. It seems pretty clear cut. Just go to court, prove that someone made a factually false statement about you and did so maliciously and this harmed your reputation and you win. However, it's rarely that simple. Sometimes judgments get confused with facts and this appears to have been what happened in Simon Singh's case. He was sued for describing the chiropractic profession as "bogus". "Bogus" is a judgment, an opinion, an evaluation. Such judgments can be rational and based on facts or they can be irrational, so I am not meaning to convey that all judgments are equally valid. However, they are judgments rather than facts. A fact would be stating something specific that an individual had done, for example, stating that Dr. X was charging his patients $100,000 and used Device XYZ which he claimed had research to back it up when it did not, hence it was bogus. Bogus would be the evaluation of the individual, however it would be the facts that would be the basis of the case, are they true or false? Note that this really is a black and white issue. Either the doctor charged $100,000 or he did not. Either he used device XYZ or he did not. Either device XYZ had scientific evidence that it could cure disease or it did not. However, instead of being charged with facts that could be determined to be true or false, Singh, was charged with using a word "bogus". As I understand it, the charges are that he was saying the people had malicious intent when that was not what he was conveying at all and if one actually read what he wrote, that would be apparent. So here, one word got lifted out of context and poor Simon Singh finds years of his life taken over by having to fight this lawsuit. Needless to say, this can have a chilling effect on anyone considering criticizing something they consider to be bogus. It is worth noting that the UK is also the country where various forms of "alternative" treatments are licensed, which give them an air of legitimacy even if they lack scientific evidence to back them up. What would it mean to be a licensed "expert" of such a practice? But that would be a whole separate discussion I will leave for another time.
In the US, it is more difficult to win a libel case, but here, we have the opposite injustice, people having their reputations damaged who cannot get justice. Stephen Barrett is one of the victims of this form of what in my opinion is an injustice. He sued people for libeling him on the internet and he lost the case, even though false facts were being spread about him, such as calling him a delicensed physician when in fact he is retired and has never been disciplined by his profession. Jean Mercer has been smeared in a similar manner. Her detractors are saying that she failed to obtain a license to practice psychology when she did not "fail", she is a developmental psychologist, not a clinical psychologist and developmental psychology is research degree and not a licensed profession as clinical psychology is.
Another trick is to technically tell the truth but only tell part of the facts and present them in such a way that leads readers to false conclusions. For example, one blatant lie that is being told about me is that I was fired from FSU when I can prove I was not and left in good standing because I graduated. However, in other postings false impressions are created by saying that people made complaints to the dean and now I am no longer teaching there. In fact, there were letters written to my Dean by a therapist I had criticized, Ronald Federici, and some of his colleagues. However, what this misleading piece leaves out is the fact that my Dean decided to not take any action on these complaints because he told me he considered them completely irrelevant to my work at FSU. In fact, those complaints were made the summer of 2009 and my no longer teaching at FSU had nothing to do with those complaints and everything to do with the fact that I graduated and FSU social work does not hire their own PhD grads. So although technically the facts were correct, this really ought to qualify as libel, since it creates a completely misleading impression to the readers that I left under bad circumstances when nothing could be further from the truth.
What is being done to me is being rationalized because Dr. Federici stated in a letter he wrote to me that he feels he is the one who is being libeled and defamed by me. Oh really? I have never written or uttered any factually false statements about him or his work. The material on the ACT website, although I am not responsible for its content, is not libelous. He tried to have it removed for copyright violations and was unsuccessful with that as well, because they were fair use, properly cited quotes of things he said in his own word. He did the same for Charly Miller's website where she described diagrams he had in his book and expressed her opinion about it. Charly's website was down for the required 10 days to comply with DMCA but is now back up. Here we are talking about a genuine right to free speech. She did not commit copyright violations, nor did she commit libel. She was expressing her opinion and giving her evaluation about the restraint procedures for children that had been recommended in a book. What would have made it libel? It would have been libel if she had stated that he recommended procedures he had not recommended, in other words, if she had stated facts that were false, but she did not.
People do have the right to express their opinions and this is a very different matter from people who are anonymously lying about me that I was fired from FSU, did sexual favors for specific people they named in exchange for endorsements, and a number of other knowingly malicious lies that have been spread about me. Some people don't seem to be able to see the difference and perhaps it goes back to the highly subjectivist society we live in, where people do not see facts as facts, but instead, see everything as subjective. There seems to be an inability to distinguish facts from opinions and evaluations and I have to wonder if members of juries would be any better at making such a distinction.
I have been accused by people who are unable to distinguish between these two very different situations, that I am a "hypocrite" when really the basic nature of the criticism that ACT has made of Federici and the smear campaign against my colleagues and I by anonymous people are very different. I give this as an example of how great epistemological confusion exists over what is a fact and what is an opinion, a judgment, an evaluation. Of course, for people who buy into post-modernism or the new age maxim that we create "reality" and that there is no objective reality, this whole topic becomes even more problematic and I wonder how much of this is feeding into the problem.
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