As has been widely reported in the media, voting technology companies Dominion and Smartmatic have filed multi-billion dollar defamation lawsuits against Fox News and others over false claims that voting machines were “rigged” to help “steal” the 2020 presidential election. Perhaps it’s time for Moderna, Pfizer, and Johnson & Johnson to follow suit, taking legal action against those who spread disinformation about the safety and effectiveness of their vaccines.
An expert quoted in The Washington Post sees in the pending defamation suits the possibility of curbing the spread of misinformation where other methods (like actions taken by social media companies) have proven impotent:
“We are seeing the way that libel has become a real battleground in the fight against disinformation,” said RonNell Andersen Jones, a law professor at the University of Utah. “The threat of massive damages for spreading probably false conspiracy theories on matters of public concern could turn out to be the one tool that is successful in disincentivizing that behavior, where so many other tools seem to have failed.”
Spreading false information about COVID 19, a matter of public concern for sure, is exactly what “super-spreaders” like Joseph Mercola and Ty Bollinger have been doing for over a year. “Disincentivizing” their harmful behavior with legal action targeting their efforts to undermine the public’s confidence in vaccines may be just what the doctor ordered.
With that possibility in mind, we’ll look at how the masterfully-crafted complaints filed by Smartmatic and Dominion could serve as a template for defamation suits brought by vaccine makers against those who endanger the public’s health with their false claims. Although disinformation plagues all vaccine manufacturers, today we’ll focus on COVID vaccines.
The defamation suits
The lawsuits center on alleged falsehoods about the companies’ voting machine technology broadcast by Fox and its news personalities, including Lou Dobbs, Maria Bartiromo, and Jeanine Pirro (and repeated on social media to millions), including false statements made by lawyers Rudy Giuliani, Sidney Powell, and businessman Mike Lindell, in interviews on various Fox programs following the 2020 presidential election. For our purposes here, we’ll concentrate on the complaints’ allegations against Fox.
The tort of defamation is governed by state law, albeit with important First Amendment implications, and can thus vary from state to state. However, generally, the plaintiff must prove that the allegedly defamatory statements were “of and concerning” the plaintiff, that the statements are ones of fact (as opposed to, for example, an opinion) and are provably false, that they damaged the plaintiff’s reputation, and damages. Save a few statements that might be regarded as opinion, Smartmatic and Dominion can likely prevail on these elements.
If the plaintiff is a private figure, whether a person or business entity, they must show only that the statements were negligently made. But, if the plaintiff is a public official or public figure, they must prove, by clear and convincing evidence, that the defendant acted with actual malice or reckless disregard for the truth. The standard is a subjective one: the plaintiff must prove the defendant had actual doubts about the veracity of his statements. This is a high bar:
The “reckless disregard” standard for public-figure plaintiffs is “rarely met,” said [law professor] Andersen Jones. “It is famously difficult to show that someone knowingly lied, although Dominion has marshalled some powerful evidence on this front.”
Both Smartmatic and Dominion have obviously anticipated being deemed “public figures” in drafting their complaints and have included allegations which they believe will meet the actual malice/reckless disregard standard. Other allegations go to show that Fox intended the statements to be understood as factual, not opinion (a defense Sidney Powell has already invoked in her case). Key allegations include:
- Fox and its news personalities repeatedly promoted themselves as providers of factual information and a “trusted” source. They also used Giuliani’s and Powell’s status as lawyers to create the impression they were reliable sources of fact.
- The falsity of their statements was easily verifiable from numerous sources, including state and federal officials and agencies, voting experts, and the plaintiffs themselves, none of whom were interviewed.
- The way Fox claimed the voting machinery operated is inherently implausible and technologically impossible.
- Fox urged viewers and readers to discredit and ignore what they heard from other sources and suppressed facts that would counter its narrative.
- Fox was aware of, but nevertheless violated, generally accepted journalistic standards.
- Fox’s motive was economic: it needed to placate angry viewers who migrated to other media outlets after Fox called Arizona for Joe Biden early on, so it made Dominion and Smartmatic “villains” in the false narrative about a “stolen” election.
SBM has extensively covered the firehose of falsehoods about COVID 19 vaccines. Let’s take a look at just a few of these posts, chosen for a particular reason, as you’ll see in a moment.
Just this past Monday, David Gorski, who has done some seriously heavy lifting in shooting down COVID misinformation on all fronts, shredded a scientifically illiterate claim, recycled from the anti-vaxx trope machine, that
“shedding” of spike protein from the mRNA-based COVID-19 vaccines, such as the vaccines produced by Moderna or Pfizer/BioNTech, are making the unvaccinated sick and interfering with women’s menstrual cycles (or even causing miscarriages) . . .
Specifically called out, and rightly so, was anti-vaxx pediatrician Larry Palevsky:
Somebody get Dr. Palevsky a college-level introductory molecular biology textbook! Why? He seems not to know the difference between “genetic instructions”, mRNA, and proteins. He seems to think that an immune response to an mRNA strand coding for a protein will attack the protein itself and any protein that looks like it, thus producing autoimmune disease. Truly, Dr. Palevsky needs a remedial course in basic biology and molecular biology. (Either that, or, again, he’s lying. Take your pick.)
Of course, no anti-vaccine falsehood would be complete without an attempt to pre-empt truthful information from respected experts in the field, and Palevsky doesn’t disappoint, warning us not to listen to scientists who’ve dismissed, as the post describes it, his “incredibly improbable” claims “based on, essentially, everything we know about molecular biology and immunology”.
Also skewered in his recent posts over their scientific malfeasance: Joseph Mercola, Geert Vanden Bossche (aided and abetted by anti-vaccine propagandist Del Bigtree), Robert F. Kennedy, Jr. , J. Bart Classen, and, of course, Natural News, among others.
Scott Gavura wrote a couple of posts on reports from the Center for Countering Digital Hate (CCDH) that, conveniently for our purposes here, synthesize anti-vaccine rhetoric and its sources. First,
The Anti-Vaxx Playbook, that describes in detail how key members of the anti-vaccine movement are collaborating and partnering in new ways to exploit the COVID-19 pandemic, create consistent anti-vaccine messaging, and destroy confidence in vaccination.
Their strategy centers on three anti-vaccine themes:
- COVID-19 is not dangerous. Talking points: There are few deaths, and death reports are exaggerated. “It’s just the flu.” “It will just go away on its own.”
- COVID-19 vaccines are dangerous. Talking points: “The vaccines were rushed.” “The vaccines are killing people.” “Natural” immunity is better. Other treatments (e.g., hydroxychloroquine) are safer and better. “Vaccines are toxic.” “Vaccines will change your DNA/destroy your immune system.” etc. etc.
- Vaccine advocates cannot be trusted. Talking points: “It’s politics over health.” “It’s Big Pharma profits over health.” Vaccines are “too big to fail” and manufacturers are “not liable for injuries.” “Bill Gates! Bill Gates! Bill Gates!”
As described in a second post, another CCDH report outed the “disinformation dozen”, just twelve anti-vaxxers responsible for almost two-thirds of all anti-vaccine content on Facebook and Twitter. They include Joseph Mercola, Sherri Tenpenny, Rashid Buttar, Kelly Brogan, and Christiane Northrup, all of whom are either medical or osteopathic physicians. Another, Ben Tapper, is a chiropractor.
This post referred as well to a third CCDH report, covering anti-vaccination in general, The Anti-Vaccination Industry, which identified four sub-communities of anti-vaxxers, including these two:
- Campaigners are full-time, anti-vaccine professionals who may be seen as “experts”. They make a living based on promoting anti-vaccine sentiment and ideas. Their examples include: Informed Consent Action Network (Del Bigtree), Children’s Health Defence (Robert F. Kennedy Jr.), and the National Vaccine Information Center (NVIC).
- Entrepreneurs leverage and amplify vaccine fears to sell content, products and services. Examples include Rashid Buttar, Ty and Charlene Bollinger, David Wolfe, Judy Mikovits, and the biggest, Joseph Mercola.
One of the “campaigners” identified is Robert F. Kennedy, Jr., who was also honored with a spot among the “disinformation dozen”.
Kennedy’s most important role in the anti-vaccination movement is lending his credibility as an environmental campaigner and son of the Kennedy political dynasty to other key figures by appearing alongside them at events or taking part in interviews.
And with that, folks – a review of a few SBM posts – we’ve just checked off the entire list of key allegations against Fox:
- Anti-vaxxers present themselves as credible “experts”, including the use of their status as healthcare professionals, and therefore purveyors of trusted “factual” information.
- The falsity of their information is easily verifiable, from scientific experts as well as the CDC, FDA, and the vaccine makers themselves, if they’d only bothered to check.
- Anti-vaxxers make scientifically implausible and biologically impossible claims.
- In presenting their anti-vaccination misinformation, they fail to include information that disagrees with what they are saying and try to discredit reliable sources.
- At least some of them are trained in science and the scientific method and should (or do) know better.
- Finally, by choosing anti-vaccination activism as a career or by shilling for the nostrums they sell, or both, they have an economic motive to spread false information.
If we can get here by reviewing a few SBM posts, imagine what a talented defamation lawyer could do with an extensive review of, say, Mercola’s websites, social media posts, books, transcripts of his media appearances, and FDA warning letters.
As with the voting technology suits, proving the falsity of statements made by various anti-vaxxers, or that they damaged the vaccine makers’ reputation, shouldn’t be difficult. And while the defendants might try to fob everything they have said off as “opinion”, that’s unlikely to fly.
Most crucially, as is true of the allegations against Fox, their actions evidence, at the least, a reckless disregard for the truth. And it is here that the anti-vaccine movement goes the “rigged” election crowd one better. Key players like Kennedy have amassed a years-long record of anti-vaccination misinformation. Whole books (also here) have been written on the subject. In fact, as David Gorski has so effectively shown, some of the COVID anti-vaccination disinformation is merely recycled garbage from previous anti-vaccination disinformation efforts. What a perfect means of demonstrating actual malice.
Litigation is costly and time consuming, and there can be good business reasons not to employ it in any matter. Discovery, for one. These companies may not want the defendants getting into their records (although there are guardrails, like protection of trade secrets). And, of course, not every bit of disinformation broadcast by just anyone should be made the subject of a lawsuit. But, given the relentlessness of the anti-vaxxers and the failure of social media companies to stop them, defamation actions, especially against the “disinformation dozen”, could be part of the solution. Even if monetary damages prove not worth the pursuit, the plaintiffs could seek declaratory and injunctive relief, prohibiting the defendants from repeating their misinformation.
Sending the likes of Mercola and Kennedy demands for retraction are a possibility as well, setting out their false statements and explaining why they are false. (For this, they could just cut and paste any number of David Gorski’s posts.) The demands may be ignored, but that is done at the risk of those demands appearing in a complaint as evidence of actual malice – in other words, they kept it up even after being put on notice. (Both Dominion and Smartmatic have set forth corrections they sought from Fox in their complaints.)
After Smartmatic demanded that right wing media outlet Newsmax retract its false and defamatory statements, Newsmax posted a statement renouncing a number of false claims about both companies, acknowledging “no evidence has been offered that Dominion or Smartmatic used software or reprogrammed software that manipulated votes in the 2020 election.” Imagine the satisfaction of hearing similar statements retracting anti-vaccination lies.