Appellate Division Unanimously Affirms Dismissal of Defamation Claim in HIV/AIDS Controversy

New York Appellate Division, First Department, has affirmed dismissal of Celia Farber’s lawsuit contending that she was defamed by an email that Richard Jefferys sent to Walter Fauntroy in 2008.  Fauntroy was coordinating testimony for “Whistleblower Week,” an event organized by the Semmelweis Society International, during which a “Clean Hands Award” was to be presented to Farber and Dr. Peter Duesberg “for their stance as HIV dissenters, which put them at odds with the medical establishment,” according to the summary judgment opinion issued by New York Supreme Court Justice Louis B. York in 2011.  Farber, a journalist, had published an article in Harper’s Magazine in 2006 that was critical of the medical establishment’s acceptance of HIV as the cause of AIDS and anti-retroviral medications as appropriate treatment for HIV infection.  The Appellate Division ruling in Farber v. Jefferys was released on February 19, 2013.

Jefferys, a longtime activitist in the HIV/AIDS community, is affiliated with the Treatment Action Group, formed as an off-shoot of ACT-UP to promote research and education in the fight against the AIDS epidemic.  He participated in a publication issued in response to Farber’s article, titled “Errors in Celia Farber’s March 2006 article in Harper’s Magazine,” which asserted that there were 56 factual errors in the article.  Among the co-authors of this article, which was widely disseminated on the internet, were prominent researchers and medical academics.  Jefferys reacted to the news that Farber and Duesberg were being honored by sending Fauntroy the email in which he stated: “These individuals are not whistleblowers, they are simply liars who for many years have used fraud to argue for Duesberg’s long-discredited theory that drug use and malnutrition – not HIV – cause AIDS.”  The email offered to provide documentation for his allegations, and asserted that including Farber and Duesberg in the planned event “with, regrettably, discredit and demean your efforts to support the very real issues of recrimination against legitimate whistleblowers.”

Jefferys’ email resulted in Farber being dropped from public participation in Whistleblower Week, although her award was presented to her in a private ceremony.  She filed suit against Jeffreys and others involved in circulating criticisms of her HIV-related writings.  She particularly focused on Jefferys calling her a liar, and she claimed that various criticisms he made of her work were incorrect.

In his 2011 decision dismissing Farber’s defamation claim, Justice York found that Farber was a “limited public figure” and that the subject matter of the controversy was “a matter of public interest.”  Both of these conclusions supported his finding that in order to maintain her lawsuit, Farber had the burden of showing that Jefferys had made incorrect statements with “actual malice,” a constitutional standard requiring that she demonstrate that he made these statements either knowing they were false or with reckless disregard for the truth.  Justice York found that Farber’s complaint and the documentation she offered in response to Jefferys’ motion  to dismiss the case were insufficient to meet this burden.

The Appellate Division’s five-judge panel agreed with Justice York.  He “properly determined that plaintiff was a limited public figure because, through her publication of countless articles, she voluntarily injected herself into the controversial debate on whether HIV causes AIDS with a view toward influencing the debate and projected her name and personality before readers of nationally distributed magazines to establish her reputation as a leading authority in this area.” 

The appellate panel also found that “Jefferys met his burden of demonstrating that plaintiff could not show by clear and convincing evidence that he made the challenged statements with actual malice or with gross irresponsibility.”  Jefferys had explained that his statements were based on “his expertise and research on HIV/AIDS for many years, on an article signed by prominent experts in the field, as well as on the many articles in the record which critiqued plaintiff’s 2006 article as being filled with misquotes or misrepresentations.”  The court continued, “Jefferys also provided documentation to support why he believed what he wrote about the plaintiff was true and compared in detail plaintiff’s journalism to the articles and studies she cited and explained why he believed her work to contain misrepresentations.”

The point of the case is that robust debate on issues of public importance requires a wide degree of toleration for argument and rhetoric, and so long as somebody is not deliberately publishing falsehoods or making statements harmful to the reputation of others without regard for whether they are true, the speaker will be protected from liability for defamation.  In this case, the court found, Farber’s assertion that “Jefferys was biased against her or bore her ill will does not aid her cause,” since that is not the issue in determining “actual malice” as that term is used in constitutional law concerning freedom of speech.

Finally, the court agreed with Justice York’s conclusion that Jefferys’ use of the word “liar” to describe Farber was not subject to legal liability.  “The full content of the statement, including its tone and apparent purpose, and the broader context of the statement and surrounding circumstances leads to the conclusion that what was being read was likely to be opinion, not fact,” and generally legal liability for defamation is limited to factual assertions.  Thus, the court concluded that it was appropriate for Justice York to dismiss the case rather than to subject Jefferys to discovery and trial on the defamation claim.

 Jefferys’ attorney had the following comment on the decision:  “The Appellate Court’s unanimous decision dismissing Celia Farber’s claim against Richard Jefferys upholds important First Amendment rights.  The decision permits Mr. Jefferys to continue to focus on his incredibly valuable work on HIV policy, advocacy, and education.  It is a great result for Mr. Jefferys and the public.”  Statement of Joseph Evall, partner at Gibson, Dunn & Crutcher LLP, and lawyer for Mr. Jefferys.


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