New York State Supreme Court Justice Louis B. York has granted summary judgment in favor of Richard Jefferys, one of three defendants in a defamation lawsuit brought by Celia Farber, a journalist who has written numerous articles presenting in a favorable light the contention that HIV is not the cause of AIDS. Justice York's decision involves only the allegations against Jefferys, who is associated with the Treatment Action Group (TAG), and does not concern the other two defendants, Kevin D. Kuritsky and Dr. James J. Murtaugh. Farber v. Jefferys, Nol. 106399/2009, NYLJ 1202528148080 (decided Nov. 2, 2011).
The New York Law Journal's report about the decision, published on November 8, includes a statement by Ms. Farber's lawyer, Andrew T. Miltenberg of Nesehoff & Miltenberg, that Farber will appeal the grant of summary judgment. Jefferys' lawyer, Joseph Evall of Gibson, Dunn & Crutcher, declined to comment to the Law Journal about the ruling.
The suit against Jefferys arose out of his May 12, 2008, email to Walter Fauntroy, a coordinator of testimony for "Whistleblower Week," an event sponsored by the Semmelweiss Society International, an organization formed, according to Justice York, "to support physicians, academicians, and health care providers who are falsely accused of misconduct based on their status as whistleblowers." Jefferys was responding to an announcement that SSI was planning to bestow a "Clean Hands" award on Celia Farber and Dr. Peter Duesberg, a leading exponent of the view that AIDS is a lifestyle disease and not the result of HIV infection. Farber published several articles extolling and commenting favorably on Duesberg's arguments against HIV as the cause of AIDS, including an article in Harper's Magazine that attracted much attention internationally. The SSI event was evidently intended to extoll Farber and Duesberg for challenging the "establishment" view that HIV causes AIDS, thus making them "whistleblowers."
In his email, Jefferys asserted that Farber and Duesberg "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." Jefferys claimed that he could provide "many, many examples, including their altering of quotes from the scientific literature, false representations of published papers, etc." He argued that including Farber and Duesberg in this event "will, regrettably, discredit and demean your efforts to support the very real issues of recrimination against legitimate whistleblowers." Jefferys' email was, according to Farber's complaint, circulated to members of Congress and the media, the resulting controvery leading to Farber being dropped from testifying during Whistleblower Week, and resulting in SSI cancelling the public ceremony to give her the Clean Hands Award, instead presenting it in a private event.
In her complaint against Jefferys, Farber claimed his email was libelous (printed defamation) because it falsely accused her of being a liar and engaging in fraud, "altering quotes from the scientific literature, and of falsely representing published works on the topic." Farber claims that the challenged statements by Jefferys were "per se" defamatory as "injurious to her reputation as a journalist." Jefferys, in response, argued that his statements were true and that he could provide documentation for all his claims. The law considers a statement to be "defamatory" if it would tend to injure the reputation of an individual. A statement that is likely to harm somebody's professional reputation is considered defamatory as a matter of law. Truth, of course, is a defense.
The first issue Justice York had to tackle was to determine whether the "actual malice" standard imposed by the Supreme Court in cases involving public figures would apply to this case. Although he found that journalist Farber was not, generally speaking, a public figure, he concluded that she qualified as a "limited purpose" public figure, a well-established category concerning people who push themselves forward into areas of public debate and receive a large measure of recognition among people concerned with the area. Certainly, among those concerned in the area of HIV/AIDS, Justice York found, Farber had attained the status of a limited public figure, given the high visibility and controversial nature of her work, and especially her publication in Harper's Magazine that aroused great interest and consternation in the HIV/AIDS advocacy and research communities. Thus, in order to prevail on her defamation claim, she would have to show that Jefferys made untrue statements about her with "actual malice," a term used to denote deliberate, knowing falsehoods, or statements made with reckless disregard as to their truth or falsity.
However, even if Farber were not deemed a public figure for purposes of this case, Justice York found that she would still have to meet a heightened burden of showing that Jefferys' defamatory statements were grossly negligent, because the comments related to a matter of public concern. The U.S. Supreme Court has ruled that the First Amendment protects robust public debate on issue of public concern, such that even untrue statements made in such a context may not subject the speaker to liability unless the speaker is grossly negligent with respect to the truth.
In this case, Jefferys argued that the statements he made were true. If the court found them to be true, that would be the end of the case, since in these circumstances truth would be a complete defense to a defamation charge. But Justice York found it was unnecessary for the court to determine the truth of Jefferys' statements, since it was clear that Farber's allegations and proffered evidence in opposition to the summary judgment motion failed as a matter of law to establish actual malice or gross negligence.
Justice York's opinion summarizes the controversy over HIV as the cause of AIDS, showing that the medical literature overwhelmingly supports Jefferys' position on this. Whether the "HIV establishment" or the "HIV denialists" are correct is not the issue. Since it is a matter of public concern and debate, the issue is whether anything Farber alleged goes to show that Jefferys made deliberately false statements or statements for which there is not support in public statements by leading scientists in peer-reviewed journals.
In effect, Farber was contending that defamation law can be used to stifle criticism of a controversial position on a matter of great public importance. In light of the 1st Amendment standard of freedom of speech as applied to defamation law by the U.S. Supreme Court, such a contention cannot stand. Indeed, Justice York pointed out that statements about Jefferys in Farber's Complaint and in her arguments in opposition to Jefferys' pre-answer motion to dismiss (which Justice York had sua sponte converted into a motion for summary judgment) would be actionable as defamatory under Farber's theory of the case, since she was, in effect, accusing him of lying just as he had asserted that she was lying in her published work about HIV and AIDS.
Furthermore, Justice York pointed out, "rhetoric" in the heat of debate about contested issues of public importance is generally protected against liability for defamation. Jefferys used the strong word "liars" instead of merely criticizing Farber's reporting as "incorrect" or a "misinterpretation" of scientific sources, but that made no difference as far as the law of defamation is concerned, so long as he had reputable sources for his views and sincerely believed in the truth of what he was saying.
Justice York's full opinion, which will become available on the New York Courts website and will be officially published, provides a detailed history of the HIV denialism controversy and Celia Farber's role within that controversy. Justice York does not purport to making a finding as to the truth or falseness of Farber's reporting or Jefferys' criticism of it, because the actual malice and gross negligence standards made that unnecessary under the circumstances. This decision is not a judicial verdict on "HIV denialism." Instead, it is a strong defense of freedom of speech on contested questions of public policy.
The same 1st Amendment that protects Farber's right to publish articles contesting the views of the "medical establishment" on AIDS — in which she advances the argument that there is an HIV establishment supported by the big pharmaceutical companies who profit enormously from the sale of powerful "poisonous" anti-viral drugs for treatment of "harmless" HIV-infection — also protects the right of those who are convinced by the evidence that HIV causes AIDS to publish strongly worded condemnations of the writing of the HIV denialists, blaming them, for example, for hundreds of thousands of deaths in South Africa flowing from Dr. Duesberg's activities to persuade the former president of that country to oppose the distribution of anti-retroviral agents to combat HIV/AIDS. In the end, the "marketplace of ideas" will sort out which is the more accurate view.