Scott Pilutik

I am an attorney and consultant living and working in Manhattan, focusing primarily on church/state constitutional law. I'm a recognized expert on the Church of Scientology organization. I also have strong interests in intellectual property law where it intersects with emerging media, and free speech.

I support the efforts of the Americans United for Separation of Church and State, the Freedom From Religion Foundation, the National Lawyers Guild, the ACLU, Creative Commons, and the Electronic Frontier Foundation. I am a member of the New York County Lawyers Association and the New York State Bar Association. I also enjoy (watching) hockey and (doing) photograhy.

Online I can be found on Facebook, Twitter. My resume can be viewed here. I can be reached by phone at 212.645.6241 or by e-mail at pilutik[at]gmail.com.

stuart pivar v. seed media group, llc and paul z. myers

Via Brent Rasmussen comes word that one of my favorite bloggers, PZ Myers is being sued for defamation over a pair of scathing book reviews written by Myers only a month or so ago.

I managed to get my hands on the full complaint. Pivar’s claim hinges entirely on Myers referring to Pivar as a “crackpot” — Pivar argues that this is “libel per se.” Libel per se means libel on its face, without requiring any other facts (in contrast with “libel per quod”, where the libel can only be understood as libel if more was known to the reader).

There are only a few categories of libel per se — (a) a false statement as to the defendant’s professional abilities; (b) a false statement as the defendant’s affiliation with a party (e.g., KKK); (c) imputations of a loathsome disease; or (d) imputations of criminality.

Pivar is obviously focused on the first category. His complaint even helpfully points to a case where the term crackpot was used defamatorily (McFadden v. United States Fid. & Guar. Co., 766 So. 2d 20 (Miss. Ct. App. 2000)). Pivar’s reliance on this case is misplaced for a few reasons.

In Mcfadden, an insurance adjuster (the defendant) told a woman injured in a car accident that it would retract her coverage if she continued to utilize the medical services of a particular “crackpot” or “quack” doctor (the plaintiff). The trial court directed a verdict for the insurer defendant on both claims — tortious interference and slander. The appellate court remanded on the slander claim, suggesting that a jury *could* possible find that the adjuster intended to disparage the doctor’s professional abilities. It’s not clear what happened after this, but presumably it settled for some figure.

Before I explain why McFadden is easily distinguishable from Pivar’s complaint, it’s worth noting that McFadden’s complaint is a very close case — it would probably fail in other courts and before most juries. The defense raised by the insurer in McFadden has some merit — the insurer and the insured shared an interest (even if it was adversarial) and these types of characterizations arise ordinarily enough that it would likely be considered heated bluster in most jurisdictions, as opposed to an intent to degrade and undermine the plaintiff’s professional capabilities. Unmentioned in the opinion, but still somewhat relevant, it seems to me, is the generally privileged nature of medical advice, even advice given by non-medical persons. The rules of evidence recognize a medical advice hearsay exception, although for an admittedly different reason (trustworthiness). Still, an adversary’s alleged slander could be motivated by a genuine concern for a patient’s care, and so should be categorically kept off limits.

Notably also is the Southern District of NY judge Pivar drew when he filed the suit — Shira Sheindlin. Sheindlin is an extremely able judge who once found the Military Honor and Decency Act — a law that would restrict the sale or rental of sexually explicit material on U.S. military bases and ships — to be unconstitutional, declaring that a democratic society “must tolerate a vast range of discourse, much of it in bad taste and offensive.” That doesn’t necessarily mean anything, but it’s not a bad indicator as to where Sheindlin sits on the first amendment.

Getting to Pivar’s complaint, McFadden raised an entirely separate legal question than the one Pivar raises. McFadden’s plaintiff was a doctor whose reputation was allegedly slandered by an insurance provider to the doctor’s patient. The doctor, under the apparent facts, never sought publicity. Pivar is at least a limited purpose public figure, and probably even a public figure, since the allegedly defamatory comments arose in the context of a review of Pivar’s book. American courts apply different standards of both proof and damages depending on who the defamed is, ranging from politicians (least protected), celebrities (nearly as unprotected as politicians) to incident-specific public figures (private individuals who lose protection when the allegedly defamatory comment pertains to their involvement in an event into which they injected themselves) to private individuals (you and me). In other words, the doctor in McFadden had a much greater expectation that the law would redress his being called a crackpot than does Pivar.

Additionally, context works against Pivar, because of how the term ‘crackpot’ was used in each instance. The insurer was speaking directly to a patient considering her own medical situation and Myers was reviewing a book. It seems more probable that the insurer – speaking directly to the patient – was not speaking from expertise but from a financially interested place. Neither lack of expertise nor financial interest matter necessarily – but their presence undercuts the notion that the insurer was expressing an opinion, which is almost always considered protected speech. Only where defamation is factually implied inside an opinion does the opinion become actionable. Myers wrote a detailed, informative review on a subject in which he has expertise, and his conclusion that Pivar is a crackpot was not a factual implication smuggled inside an otherwise protected opinion. It was just his opinion.

Perhaps, too, the term “crackpot” is so vague as to be a possibly unfalsifiable. How can one defend against a claim that he/she knew the plaintiff was not a crackpot? What is a crackpot in a world where every newspaper carries an astrology column? The term (with nothing more) is so bandied about as to be diluted and meaningless under any defamation standard (which all primarily rely on whether the plaintiff’s reputation has been damaged in the community).

In any case, I wouldn’t expect this transparent attempt to quash criticism to last long on Sheindlin’s docket.

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