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A lawyer of high standing writes to Pivar
Posted August 26, 2007
Dear Mr. Pivar:
I don't know if this is a current email address for you; I obtained it
from the Internet by accessing some of your 2004 correspondence regarding
the NYAA affair.
First, let me introduce myself. I am a lawyer (a graduate of Harvard Law
School) and am admitted to practice before several state and federal
courts, including the United States Supreme Court. I also was on the
faculty of Boston College Law School and the University of California, San
Diego, where I taught constitutional law from 1982 until my retirement in
2004. My legal specialty is First Amendment law, including the law of
defamation, about which I have written in several books and law review
articles. I mention this background, quite frankly, to impress you with
my credentials in this field, which are substantially greater than those
of Michael J. Little.
I might also add that I was a close friend of Stephen Jay Gould, from our
college days in the 1950s until his death in 2002. Steve and I were
neighbors in Cambridge for many years, and talked extensively about his
work in evolutionary biology and paleontology. As an aside, if Steve were
still alive, I think he would have a viable defamation action against you
for your false statements about his views, but that's a moot point.
Over the past week, I have become very familiar with your defamation suit
against Seed Media Group and Professor Paul Z. Myers, about which I
learned from several legal and science blogs that I follow. I have
carefully read the complaint that Mr. Little filed on August 16 in the
Federal District Court in New York City.
In my professional opinion, this is a very poorly drafted complaint, with
no legal merit whatever. I won't discuss its stylistic deficiencies,
which are numerous and which show evidence of haste and sloppiness by Mr.
Little, which Judge Scheindlin will surely notice.
On a substantive level, the complaint will never survive a motion to
dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, for
"failure to state a claim upon which relief can be based." You allege
defamation by Professor Myers on the sole basis of his characterization of
the revised edition of your Lifecode book as the work of "a classic
crackpot." This was in the context of a fairly lengthy review of your
book (following an earlier review of your book's first version) that was
not included or even referenced in Mr. Little's complaint.
As Mr. Little should have known, by due diligence, Professor Myers'
characterization was protected opinion, not a false statement of fact. As
such, it is immune from defamation actions. Mr. Little cited, in
paragraph 21 of the complaint, a single case to support your action:
McFadden v. U.S. Fidelity & Guarantee Co. (766 So.2d 20). I have
carefully read this opinion, which has no precedential value in any state
or federal court. The claim in Mr. Little's complaint that in this case
"[t]term 'crackpot' was considered as actionable as slander per se" in
simply not true. This case was remanded by the Mississippi Court of
Appeals to the trial court; no trial was held on this question and no
subsequent opinion was issued.
More to the point, and a case Mr. Little should have discovered by due
diligence, is an opinion of the U.S. Court of Appeals for the Seventh
Circuit in Dilworth v. Dudley et al., 75 F.3d 307 (7th Cir. 1996). For
your edification, and that of Mr. Little as well, let me summarize and
quote from this opinion, written by Chief Judge Richard Posner, one of the
most highly respected federal appellate judges. The case involved a book
by a mathematics professor at DePauw University, in which he characterized
an article by an engineer and amateur mathematicians as the work of a
"crank," a term that is synonymous with "crackpot." In upholding the
district judge's dismissal of this defamation case under Rule 12(b)(6),
Judge Posner wrote that the term "crank" is an opinion and "is mere
'rhetorical hyperbole.' ... To call a pereson a crank is basically just a
colorful and insulting way of expressing disagreement with [the author's]
master idea, and it therefore belongs to the language of controversy
rather than to the language of defamation." In my opinion, Judge
Scheindlin would be more impressed with Judge Posner's opinion than in
dictum from a Mississippi judge. Judge Posner, by the way, also wrote
that terms like "scab," "traitor," "fake" and "phony" (far more pejorative
than "crackpot") "are incapable of defaming because they are mere
hyperbole...." Judge Posner added, "By publishing your views you invite
public criticism and rebuttal; you enter voluntarily in one of the
submarkets of ideas and opinions and consent therefore to the rough
competition of the marketplace."
So, in my opinion, Judge Scheindlin will promptly dismiss your suit.
Assuming, for sake of argument, that she does not, your suit faces several
insurmountable evidentiary obstacles. First, your complaint alleges that
your Lifecode book, in both the 2004 and 2007 versions, was published by
"Ryland Press, Inc." My research has turned up no such publisher anywhere
in the world. There is, in New York and London, a publisher called
Ryland, Peters & Small, but during my recent telephone conversation with a
member of their staff, I was told they did not publish your book (they
specialize in cookbooks and stationery). So you would certainly be asked
during discovery to identify and produce records from "Ryland Press,"
including sales figures. I also talked with Terry Krohn at Axiom House,
which advertises your second Lifecode book; he told me it was not
published by him, that he listed it as a favor to you, and that it had no
sales to date. It would be impossible for you to prove even one dollar of
damages, let alone $15 million.
Finally, you and Mr. Little are subject to monetary sanctions under Rule
11 of the FRCP; I'll let Mr. Little explain that to you, since he is
presumed to know of this potential consequence of filing a meritless suit.
Let me emphasize that I am sending you my opinions as a private party; I
do not represent anyone in this suit. You are free to disregard my
opinions but, if I were you, I would consider them carefully and instruct
Mr. Little to promptly withdraw the complaint.
Peter Irons, Esq.