If truth is a complete defense to a defamation action, what about “scientific truth”? Are scientific findings “facts” that can form the basis of a defamation action if a particular scientist contends they are inaccurate? If so, how much of a consensus is required before a matter of scientific inquiry can be considered “settled” and thus a matter of established fact? Anti-vaxxers have filed a number of defamation actions around the country against media outlets accusing them of spreading misinformation. Few (if any) have been successful. The consensus among the courts appears to be that defamation actions are not an appropriate means of addressing arguments over unsettled questions over which vaccines treat disease most effectively. It’s not so much a matter of whether matters of scientific inquiry should be regarded as facts or opinions but of the practical reality that academic questions on complex scientific topics just aren’t the sort of thing courts or juries are equipped to resolve as definitively true or false. Courts are interested in protecting First Amendment rights, not in picking sides in a scientific debate.
Case in point: Dr. Peter A. McCullough v. Gannett Company, filed earlier this year in the Eastern District of Virginia. Dr. Peter McCullough is a cardiologist and epidemiologist who has been a vocal critic of the medical response to the COVID-19 crisis. According to his complaint, he is “considered one of the world’s leading experts on COVID-19.” The Bartlesville Examiner-Enterprise, an Oklahoma newspaper owned by Gannett Company, ran a story in October 2021 about an upcoming appearance Dr. McCullough was to make at a local community center. The article contains several quotes from a Dr. Anuj Malik, an infectious disease physician who strongly disagreed with Dr. McCullough’s views on the effectiveness of the COVID vaccine. Dr. McCullough claimed the following statements attributed to Dr. Malik were defamatory:
- “[Those] kinds of expressed views are dangerous to the public and pure quackery.”
- “The governments of the world cannot get along on anything, why should they get along on vaccines? … The World Health Organization, the CDC, the NIH, the European Centre for Disease Prevention and Control, everybody says the same thing about the vaccine. It’s safe, it’s effective and the people who are spreading this information about it for what reason nobody can understand other than these people are pathological. These people are killing people.”
The Examiner-Enterprise published a second article a few days later, after the speech had taken place, entitled “Doctor fired for spreading COVID misinformation finds supportive crowd in Bartlesville.” Dr. McCullough took issue with the following statements:
- The title, indicating that Dr. McCullough was “fired for spreading COVID misinformation.”
- The article’s description of Dr. McCullough as a “Dallas cardiologist who is largely discredited by the scientific community for his assertions that the COVID-19 vaccines are unsafe and that early treatment options have been suppressed.”
- A statement from Dr. Malik describing Dr. McCullough’s appearance as a “politically motivated, ideological speech by a modern-day quack.”
- “Throughout the evening, McCullough made multiple claims that are largely uncorroborated by the scientific community.”
- “One of McCullough’s biggest claims of the night was that 15,937 Americans have died after taking the vaccine, which Malik said is taken completely out of context.”
- Dr. McCullough “blatantly told the audience that there is not a vaccine safety board.”
- Dr. McCullough “shared what he said was a threatening letter from the American Board of Internal Medicine warning that he could lose his certification for spreading misinformation,” followed by the article’s assertion that “[t]here is likely a good reason for his concern about losing certification.”
- Dr. Malik’s statement that Dr. McCullough’s “claims fail to meet the standard of what is true. None of his suggestions have been submitted to a clinical trial despite the fact that we are 20 months into this pandemic.”
First of all, the statements in the first article (i.e., “pure quackery” and “pathological…killing people”) were found to be rhetorical hyperbole or otherwise non-actionable expressions of opinion. “Quackery” isn’t something that can be proven; the only reasonable interpretation is that it reflects Dr. Malik’s view that Dr. McCullough was wrong on the science and spreading dangerous misinformation. Similarly, the “killing people” accusation would not be interpreted by readers as a literal assertion that Dr. McCullough is a murderer. Rather, it is a “quintessential example of non-actionable rhetorical hyperbole.”
Most of the statements in the second article were found to be non-actionable for similar reasons. To state that Dr. McCullough’s views were “largely uncorroborated by the scientific community,” for example, merely reflected the writer’s opinion that the degree of corroboration (if any) was relatively small. The writer didn’t claim that Dr. McCullough’s claims were wholly unsupported. The writer also fully disclosed the factual basis for his opinion by referring to CDC guidance, and Dr. McCullough did not challenge the accuracy of those facts.
On the other hand, the court found it was actionable to state that McCullough is “largely discredited by the scientific community.” This is mostly because that particular statement did not include any supporting facts, which could lead readers to believe that members of the scientific community have found McCullough’s views to be unfounded. (Which, according to the complaint, was false.) The court also found it was potentially actionable to state that Dr. McCullough was “fired for spreading COVID misinformation” and that several colleges had “cut ties” with him “for spreading misinformation.” These were statements of fact capable of being proven false at trial.
Dr. McCullough, however, is a limited-purpose public figure, and therefore needed to allege and prove that Gannett published the actionable statements with actual malice in order to state a valid defamation claim. In the court’s view, he failed to do this. The court also found that Gannett was entitled to immunity under Virginia’s anti-SLAPP statute but declined to award attorneys’ fees.
The court concluded its opinion with the following observation: “During a time of intense national upheaval due to a worldwide pandemic, Dr. McCullough exercised his First Amendment right to speak out on issues related to COVID-19. His right to do so was firmly protected by the First Amendment, and he accordingly spoke without reprisal. Now, with the tables turned, he has sought to impose civil liability on the media that reported on what he said and offered competing viewpoints. The First Amendment does not condone such a lawsuit. Rather, it protects the speech that criticized Dr. McCullough—just as it protected his own speech.”
For a similar case with a similar result, see Robert W. Malone v. WP Company, LLC (citing McCullough v. Gannett and holding that statements in the Washington Post referring to Dr. Malone’s anti-vaccine claims as “discredited” and “misinformation” were not actionable because they amounted to mere “opinions in a scientific debate”).