SGU Episode 535

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SGU Episode 535
October 10th 2015
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SGU 534                      SGU 536
Skeptical Rogues
S: Steven Novella
B: Bob Novella
C: Cara Santa Maria
J: Jay Novella
E: Evan Bernstein
Quote of the Week
Don't be afraid to be curious. Don't be afraid to ask silly questions. Why is the sky blue? It turns out silly questions have profound and interesting answers. That at its heart is what science is all about. It's understanding nature and not being afraid to ask why.
Amy Mainzer, astronomer
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Show Notes
Forum Discussion

Introduction

You're listening to the Skeptics' Guide to the Universe, your escape to reality.

S: Hello and welcome to the Sketpics' Guide to the Universe. Today is Wednesday, October 7th 2015 and this is your host, Steven Novella. Joining me this week are Bob Novella.

B: Hey Everybody.

S: Cara Santa Maria.

C: Howdy.

S: Jay Novella.

J: Hey Guys.

S: And Evan Bernstein.

E: Oh, a pleasure to be back.

S: So you're sticking with the howdy, huh?

C: I dunno.

(laughter)

S: It's alright.

E: For now.

S: You're allowed to do that because you're from Texas, right?

C: Exactly.

S: So this is a very interesting episode this week. We have the Nobel Prize reports coming up and we're going to review the movie The Martian.

Special Report: Lawsuit Update (0:43)

• https://www.sciencebasedmedicine.org/tobinick-lawsuit-update-justice-has-prevailed/

S: But first I have some very good news, an update on the lawsuit. As I'm sure most of our listeners know, I and the SGU were sued by a physician Edward Tobinick for an article I wrote about his treatments on Science Based Medicine. Last week the judge ruled on my motion for summary judgement, granting my motion for summary judgement.

J: What does that mean?

S: That means the case is over. She basically said that Tobinick cannot possibly win the case as a matter of law and that therefore it's over.

C: Yaaaay!

E: He has no merit, he has no grounds.

S: He has no merit, basically. And summary judgement, the bar is really high for that, you know. As the judge says in the decision itself that she has to give all the benefit of the doubt to the person not filing for summary judgement, you know, so anything in question, any doubt gets assumed in his favour, she has to look at the facts in a way that's most favourable to his position and then even still she said that his case has no merit. So there's a lot of confusion about what exactly the decision means. I wrote about it on Science Based Medicine obviously and posted on our Facebook page and the comments are all wonderful and I appreciate all of the support but it's clear to me from reading the comments that there's a lot of confusion about exactly what happened and that's understandable because it's complicated. So let me unpack it a little bit very quickly just so people understand what happened a little bit better. So first of all, there were multiple defendants in the case. Myself personally, SGU Productions, The Society for Science Based Medicine and Yale University. Yale had absolutely nothing to do with this, he just threw them in and they very quickly extricated themselves from the case. We convinced them, SGU Productions had to get their own lawyer and we convinced them to drop us from the suit. The Society for Science Based Medicine got their own lawyer, they also earlier this year filed a motion for summary judgement and they were granted summary judgement as well which removed them from the case. So I was the last defendant standing in the case.

J: Well I had to get a lawyer at one point too.

S: Well yeah, because they tried to rope Jay in at one point and they did depose him and he had to get his own attorney as well, it's true. There's also multiple plaintiffs in the case. There's Tobinick himself, his California corporation and his Florida corporation. And then there's also multiple counts in the case and they divide into two basic types. There's the defamation, libel, and then there was what we call the Lanham Act claims which is essentially unfair trade and tortuous interference meaning that I'm interfering with his business by saying untrue bad things about him. Now, the Lanham Act claims, these counts, are dependent upon the theory that my article in Science Based Medicine was commercial speach. That was essentially the entire legal argument: was the article that I wrote commercial speech or not? Earlier this year in June, we had filed, fairly early in the case, an {w||anti SLAPP}} motion based upon California State's anti SLAPP law, so for the California plaintiff we filed an anti SLAPP for the defamation part of the case, does that make sense? And I won that, so the judge essentially threw out the defamation claims for the California plaintiff and I was awarded fees, the exact amount has yet to be determined but it's going to be something like 10-15% of the overall cost of the case. You know, it's going to be nice but it's not going to be a huge chunk.

E: Right.

S: And then after that Tobinick dropped the defamation claims for the other plaintiffs because obviously they have no chance of winnign. There's actually a legal term for this, like you can't rule one way for one plaintiff and the other way for the other plaintiffs, so at that point it was totally futile to continue with the defamation claims once I won my anti SLAPP even though it only technically applied to one plaintiff. Alright.

B: Wait, so he saw the futility? Are you sure?

S: Well I'm sure he lawyers told him, as a matter of law you can't possibly win for the other plaintiffs given that the judge has already ruled that you don't have a defamation case for the one plaintiff that fell under the anti SLAPP statue in California. So all that was left at that point were the commercial speech Lanham Act part of the claims against me personally. And that took several months to work through so Tobinick had an opportunity for discovery, to troll through all of my emails and that's when he deposed Jay and essentially what he was trying to prove was that I make money from my skeptical activism under the theory that because what I do generates income that renders the article commercial speech.

B: That's so bizarre. So that would basically say that any newspaper...

S: Yes.

B: That has ads, oh sorry, no free speech there either, so that is unbelievable.

S: Right, right, it's extraordinary. It's a very extraordinary theory and it would absolutely gut the first amendment protections for anyone who either directly or incidentally makes money off of their free speech, suddenly it's commercial speech. Right. Now the judge ruled that it wasn't commercial speech at the summary judgement for the Society for Science Based Medicine earlier this year. She ruled a second time that it wasn't commercial speech when she dismissed his motion for injunctive relief earlier this year. That was twice. He persisted in the claims despite the judge twice ruling it wasn't commercial speech and then finally in my motion for summary judgement she said it's still not commercial speech. Here are the three criteria, it doesn't meet any of the criteria, it's not commercial speech, therefore the two remaining counts have to be thrown out, therefore she granted me summary judgement. That's basically what it comes down to. In the meantime he really got creative trying to expand the case, trying to accuse me of being in a conspiracy with other people and it was just really crazy. I write about it in more detail on Science Based Medicine, I link to all of the judge's important, the major decisions in the case so that you could read everything for yourself. It's all public document so you could delve as deeply as you want into the case and see all of the back-and-forth that was made. But the bottom line is that we've now won the case. So what does that mean going forward? First of all, he has the option of appealing. My personal opinion is that an appeal would be futile. That doesn't mean he's not going to do it.

J: And just to clarify, because I didn't know this, an appeal means that what they're saying is that the judge made a significant error in the case.

S: Yes.

J: It's not that, an appeal isn't like, let's try this all over again.

S: No. They have the burden of proof of proving that the judge made a legal mistake or that she failed to consider pertinent information.

E: Right, very difficult.

S: In any case...

B: How bad could that appeal get? I mean...

S: It'll probably take a year and cost $100,000 dollars if he decides to appeal.

B: But isn't it possible, couldn't the other judge, the other person who vets this, couldn't he read it over and be like, clearly there was no glaring error here, let's just nip this in the bud, and just end this?

S: You'd think so. You would think so, that there would be just like a quick sniff test to see if it goes forward, but he gets his day in court again. So anyway, Tobinick so far hasn't appealed but that option is open to him. We are going to be asking for fees, for the remainder of the fees, I doubt if we'll get everything, it remains to be seen how much we're going to get. And there are other things that might happen in the case that I don't want to talk about, so it's not over yet. We will definitely get some money back because we've already been awarded partial fees on the California anti SLAPP but it remains to be seen how much that will be. When there's a final tallying of the entire cost of the case versus how much we received in donations from our listeners versus how much we got back in fees we'll let everyone know what that is specifically, I don't think this is going to happen but if we end up with more money than what we started with because we got more donations than whatever the shortfall is we'll let everybody know and as we said from the beginning, in the unlikely event that happens, that money will go into a legal defence fund to protect Science Based Medicine and SGU from any future suits.

J: Yeah, unfortunatly it's much, much more likely that we're going to be in the red on this.

S: Yeah, we're probably going to be in the red but we'll see, you never know what's going to happen. We're exploring all of our options, let me just say that. So anyway, the bottom line, although it's complicated and it's not entirely over yet, this is good news, we won the case, the judge decided that Tobinick's case has essentially no merit, my articles were not commercial speech, he's already decided that his case had no merit in terms of defamation so for now the case is won and then we'll give you an update once all the dust has settled.

C: Yay, congratulations!

E: Yeah, really.

S: Thank you, thank you.

J: The really good news is that this was epically stressful for me and I'm sure it was even more profoundly stressful for Steve since he was in the front line and the fact that we don't have to talk about it anywhere more as much as we did, I can't believe that we don't have to worry about that any more.

S: We'll get a break for a while, we'll see what happens.

Forgotten Supervillains of Science (10:30)

• Bad Boys of the Nobel: http://news.nationalgeographic.com/2015/10/151005-nobel-laureates-forget-racist-sexist-science/

News Items

Nobel in Physics ()

• http://www.nobelprize.org/nobel_prizes/physics/laureates/2015/

Nobel in Medicine ()

• http://www.nobelprize.org/nobel_prizes/medicine/laureates/2015/

Nobel in Chemistry ()

• http://www.theguardian.com/science/2015/oct/07/lindahl-modrich-and-sancar-win-nobel-chemistry-prize-for-dna-research

Peer Reviewing The Martian ()

• http://www.smithsonianmag.com/science-nature/secret-martian-success-scientific-peer-review-180956745/?no-ist

Movie Review ()

• The Martian

Who's That Noisy ()

• Answer to last week: Weirding Module

Science or Fiction ()

Item #1: Using a mathematical model to predict crime location in order to direct police deployments resulted in a significant decrease in crime, even outperforming crime experts. Item #2: Using a mathematical model to predict crime location in order to direct police deployments resulted in a significant decrease in crime, even outperforming crime experts. Item #3: Physicists have recently published a paper demonstrating that the precise measurement of time is fundamentally impossible.

Skeptical Quote of the Week ()

Don't be afraid to be curious. Don't be afraid to ask silly questions. Why is the sky blue? It turns out silly questions have profound and interesting answers. That at its heart is what science is all about. It's understanding nature and not being afraid to ask why. - Amy Mainzer, astronomer

S: The Skeptics' Guide to the Universe is produced by SGU Productions, dedicated to promoting science and critical thinking. For more information on this and other episodes, please visit our website at theskepticsguide.org, where you will find the show notes as well as links to our blogs, videos, online forum, and other content. You can send us feedback or questions to info@theskepticsguide.org. Also, please consider supporting the SGU by visiting the store page on our website, where you will find merchandise, premium content, and subscription information. Our listeners are what make SGU possible.

References