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.
Pilutik says that Pivar’s argument is based on McFadden v. United States Fid. & Guar. Co., where an insurance adjuster’s calling a particular doctor a “crackpot” or “quack” doctor was judged to constitute libel per se. Pilutik points out that this was “a very close case” – it wasn’t a classic example. Obviously Pivar’s case is a little different – to begin with, as Pilutik points out, Pivar may be a “limited public figure”, so his rights to privacy are different. In addition, of course, PZ’s comment was part of his professional review…it appears to be a conclusion based on his professional assessment of Pivar’s work.
I hope that this gets thrown out of court. Blogging is a classic free speech issue – bloggers fill exactly the sort of “free expression of ideas” that the US Constitution is designed to protect. In addition, this is an example of an academic working as an academic. I’m really not sure how calling Pivar a “crackpot” is a false statement of his professional abilities. Jim Lippard quotes the complaint as identifying Pivar as “an industrialist, inventor, and scientist,” and
the founder and chairman of the board of Chem-tainer Industries, and co-founder (with Andy Warhol) and original funder of the New York Academy of Art, “a classical graduate school for painting and sculpture, whose current patron is H.R.H. Charles, Prince of Wales.” It claims that Pivar regularly discussed his book with Stephen Jay Gould, who “was working on a refutation of the fundamentalist Darwinian theory of evolution.”
As far as I can tell, PZ’s statement doesn’t relate to Pivar’s “professional abilities” as a industrialist or an inventor, but rather to his claim to be a “scientist”. That would mean that Pivar has professional abilities as a scientist about which PZ has made a false statement. So what are Pivar’s grounds to claim to have “professional abilities” as a scientist? I found two publications on Web of Science authored by an S. Pivar. One is in the Journal of Craniofacial Surgery; Pivar doesn’t claim to be a doctor, and hopefully they don’t let amateurs do (or publish about) craniofacial surgery. The other is a 1972 paper in the Journal of Accountancy – while it may be this Pivar, it certainly isn’t something you can use to base a claim of being a “scientist”. So how has PZ made a “false statement” about Pivar’s “professional abilities”? I can’t see how this works.
Jim Lippard explains some of this:
The complaint claims that Myers’ remarks led to Neil de Grasse Tyson withdrawing a review of the book and causing “considerable mental and emotional distress,” tortious interference with the plaintiff’s business relationships as a “scientist and scientific editor,” and “loss of book sales and diminished returns on ten years of funded scientific research in special damages” exceeding $5 million.
The three claims of the complaint are, first, for declaratory relief in removing defamatory statements from the web and an injunction to prevent further such statements; second, for $5 million in special damages from the “tortious interference with business relations”; and third, for $10 million in damages for defamation, emotional distress, and loss of reputation.
Tortious interference, in the common law of tort, occurs when a person intentionally damages the plaintiff‘s contractual or other business relationships. This tort is broadly divided into two categories, one specific to contractual relationships (irrespective of whether they involve business), and the other specific to business relationships or activities (irrespective of whether they involve a contract).
So…does this mean that Pivar considers PZ to have “intentionally damaged [Pivar’s] contractual or other business relationship” with Tyson? According to Tyson, Pivar took a quote out of context, combined it with “a fabrication”, and used that in both his book and his website (for details see Blake Stacey’s post on the issue). I suppose you could say that PZ “intentionally damaged” the relationship beween Pivar and Tyson when he asked Tyson about the quote…but does quote mining + fabrication = business relationship?
It’s the first part of the quote that is chilling – in essence, he seems to be saying that PZ’s review hurt Pivar’s reputation as a “scientist and scientific editor” and cost him book sales and “diminished returns on ten years of funded scientific research”. It really makes you wonder – is Pivar suggesting that you can sue for a negative review of your book, since it may diminish returns? That’s an amazing assertion. Surely you’d have to demonstrate malice before you can sue someone for loss of income.
I find the “funded scientific research” also a little bit weird. Funded? Pivar got research grants for this? Or are we speaking different languages – does “funded scientific research” means something different outside of scientific circles? But again – does this mean that you could be sued for rejecting a paper you review for publication?