The First Amendment of the United States of America, guaranteeing freedom of speech

The First Amendment of the United States of America, guaranteeing freedom of speech

For those of you following the defamation lawsuit against me by Dr. Edward Tobinick, there has been a significant and positive update. For quick background, Dr. Tobinick filed a suit against me personally, the Society for Science-Based Medicine, Yale University and SGU Productions for an article I wrote here critical of his claims that perispinal etanercept can treat a variety of neurological conditions. All the defendants but me have since been removed from the case.

There are three plaintiffs in the case; Dr. Tobinick himself, his California corporation, and his Florida LLC. Last year I filed a motion to strike some of the claims as they apply to the California corporation under that state’s anti-SLAPP statute. The update is that last week the judge in the case ruled in my favor on this motion. These are public documents, so you can read the entire decision here. It concludes:

For the foregoing reasons, it is hereby ORDERED AND ADJUDGED that Steven Novella’s Special Motion to Strike (Anti-SLAPP Motion) [DE 93] is GRANTED. Tobinick M.D.’s claims for unfair competition under 28 U.S.C. § 1338(b) (Count II), trade libel (Count III), and libel per se (Count IV) are STRICKEN from the Amended Complaint.

As important as the decision itself are the judge’s reasons for the decision. She writes:

The Court concludes that (1) Tobinick M.D. is a limited public figure subject to the actual malice requirement, and (2) Tobinick M.D. has failed to establish a probability of demonstrating, by clear and convincing evidence, that Novella made the statements at issue with actual malice. Therefore, Tobinick M.D.’s unfair competition, trade libel, and libel per se claims must be stricken.

In other words, Tobinick cannot win his suit on the merits. This also means:

As a prevailing defendant, Novella is entitled to recover his attorney’s fees and costs under the anti-SLAPP statute. Cal. Civ. Proc. Code § 425.16(c)(1). He may seek to recover his fees and costs by separate motion.

This applies to only a portion of the case, as it entails only one of the three plaintiffs and only some of the claims. It is an important victory, but the case may be far from over. I will keep you updated.

The decision also highlights the importance of anti-SLAPP laws. “SLAPP” stands for strategic lawsuit against public participation and refers to the notion that some libel suits are filed not because they have merit but as a way of silencing free speech and participation in public discourse. As I have now learned first-hand, it can cost an incredible amount of money to assert your free speech. Anti-SLAPP statutes serve the purpose of protecting free speech from oppressive or harassing SLAPP suits. Effective anti-SLAPP laws allow for defendants to shut down meritless cases early, before ruinous expenses are incurred, and also allow for the recovery of fees.

This is why the SGU, myself, and my attorney are lobbying for effective anti-SLAPP laws in every state and at the federal level. We need people in every state to contact their legislature. We have a model anti-SLAPP law we can provide and will be coordinating efforts. There are also groups like the Public Participation Project supporting anti-SLAPP legislation.

Recently the Speak Free act of 2015 was introduced in the House of Representatives. This would be a fairly effective anti-SLAPP law that applies to federal cases, and may also provide protections for cases in state court as it has a provision that allows defendants to avail themselves of the federal anti-SLAPP protection. Read about it and contact your representative in support of this bill.

Right now the laws governing libel cases are broken (in most states), representing a significant infringement on our free speech. There is a clear fix, however – effective anti-SLAPP laws. We just need a political push to get these laws passed.




Posted by Steven Novella

Founder and currently Executive Editor of Science-Based Medicine Steven Novella, MD is an academic clinical neurologist at the Yale University School of Medicine. He is also the host and producer of the popular weekly science podcast, The Skeptics’ Guide to the Universe, and the author of the NeuroLogicaBlog, a daily blog that covers news and issues in neuroscience, but also general science, scientific skepticism, philosophy of science, critical thinking, and the intersection of science with the media and society. Dr. Novella also has produced two courses with The Great Courses, and published a book on critical thinking - also called The Skeptics Guide to the Universe.