Group Promoting 'Religious Freedom' Around Vaccines Appears To Want To Stifle Free Expression Of Critics

from the not-a-good-look dept

As should be evident by the fact that our post from last fall about content moderation dealing with ignorant anti-vaxxers has amassed over 1700 comments (and more keep coming in), the anti-vax community seems to really like to flood the zone with bullshit, and keep talking until people debunking their nonsense are just completely worn out (and, yes, all of their nonsense has been debunked countless times). However, it appears that for all their talk of individual "freedom" sometimes they seek to silence others.

The latest example comes via a letter sent by lawyer Jay Wolman, in response to a cease-and-desist letter sent by the group CT Freedom Alliance LLC, which is a Connecticut-based group that has been actively fighting against a plan in Connecticut to remove broad religious exemptions for vaccinations. Brian Festa, the lawyer for the group (who is quoted extensively in the linked article) sent a cease-and-desist to someone, accusing them of defamation regarding CT Freedom Alliance and one of its co-founders, Dawn Jolly.

The letter from Wolman is worth reading in full. It starts out by noting that the lawyer, Brian Festa, appears not to be too familiar with defamation/1st Amendment law:

As we see your primary occupation is with the CT CHRO, our presumption is that defamation law is outside your usual practice. Allow us, then, to explain why your letter is deficient and what the most likely judicial outcome would be.

And while I would normally go through the letter in order, for this one, I think it's worth first jumping to the conclusion of the letter, labeled as "Section 3":

3.0 Stop This Nonsense Your client states, on its website "[w]e pledge to never engage in censorship, groupthink or controlled messaging." ... Similarly, on November 22, 2019, your client stated on Facebook that it is "the arch nemesis of censorship and deception." And on November 8, 2019, your client stated that it is an organization "where every voice is heard, and not one is louder than the others." Your threat directly contradicts these statements. It is an attempt, through bullying, to censor our clients. It is an attempt to control messaging, to thwart the ability of anyone who disagrees with your client to be heard. It promotes but a single ideology, which necessitates groupthink. In the immortal words of Master Yoda, "Stop it Now". Bad Lip Reading, "SEAGULLS! (Stop It Now)" (Nov. 25, 2016) available at https://www.youtube.com/watch?v=U9t-slLl30E Thank you for your attention to this matter.

More to the point, Wolman points out that Festa's clients have no valid claim of defamation. Jolly and her organization are upset that Wolman's (unnamed) client allegedly "disseminated false information." But as Wolman points out, that claim is substantially true -- and also suggests in the process that Jolly has since deleted the evidence:

Our clients' statements are substantially true. For example, Ms. Jolly shared on Facebook (and has since apparently spoliated) the article [URL Removed], claiming "More effective than your damn flu shot". We have a copy, even though it does not appear currently visible on her public Facebook page. The linked article makes no such claim. Instead it links to an article [URL Removed], where the author of the study at issue actually "insists that those at risk continue to take their flu jabs." Thus, Ms. Jolly has disseminated inaccurate information. Similarly, in what appears to be another spoliated post, Ms. Jolly shared on Facebook a post purporting to assert that autism is not genetic due to an absence of autistic parents and grandparents. The purported connection between vaccines and autism arise from Andrew Wakefield's discredited 1998 publication in The Lancet, which has been retracted.... Thus, Ms. Jolly uses retracted studies to support her claims.

It goes on from there, calling out that the cease and desist letter did not make clear what statements were defamatory -- which, as Ken "Popehat" White frequently says, is "the hallmark of meritless thuggery."

We have been guessing as to what it is, exactly, that you are claiming is libelous, i.e. the supposedly false information you claim our clients disseminated. You cannot merely present lengthy statements and expect us to determine what it is that you are claiming is false.

And then, in explaining the basics of free speech and the 1st Amendment, Wolman gets to insert a Marc Randazza (whom he works with) favorite from The Big Lebowski.

In brief, there is no reasonable expectation that your claims will be met with any success. There will be no damages awarded. There will be no injunctive relief. And, your threat of a temporary restraining order plainly shows you are unfamiliar with the well-established rule that “THE SUPREME COURT HAS ROUNDLY REJECTED PRIOR RESTRAINT!”. Kinney v. Barnes, 57 Tex. Sup. J. 1428 at n.7, (Tex. 2014) (citing SOBCHAK, W., THE BIG LEBOWSKI, 1998)).

Separately, just a few years ago, Connecticut joined many other states in adopting an anti-SLAPP law that means that Jolly and the CT Freedom Alliance would likely end up paying the other side's legal fees should it go to court:

Second, your clients will be liable to ours under the Connecticut Anti-SLAPP statute, Conn. Gen. Stat. § 52-196a. Dismissal will be swift. Our clients’ statements were all communications in public fora on public health, a matter of public concern. And, you lack probable cause under law, as set forth above, to bring your threatened libel claim. With those elements met, the statute mandates that our clients will be awarded their costs and reasonable attorneys’ fees. We would be happy to provide you with a list of cases in which we have recovered large fee awards in SLAPP suits so that you may properly advise your clients as to your proposed ill-fated adventure in litigation.

And, hey, even I get a shout out in the letter:

Should you proceed down the path of litigation and actually file suit, you should also advise your clients of their liability. First, they will have the misfortune of incurring the Streisand Effect. See Guttenberg v. Emery, 26 F. Supp. 3d 88, 95 (D.D.C. 2014) (describing “the dilemma faced by plaintiffs in defamation cases, who often end up publicizing defamatory statements much more than if they had not filed a lawsuit.”); see also, Masnick, Michael, “Since When is it Illegal to Just Mention a Trademark Online?” Techdirt (Jan. 5, 2005) available at https://www.techdirt.com/articles/20050105/0132239.shtml (coining the term). It is unlikely your clients have suffered any injury to their reputation on account of our clients’ statements. Your clients are apt to suffer far greater injury to their reputation, to the extent they might not already be libel proof, on account of their own statements and tactics should they turn to litigation and bring the frivolous suit you propose.

It's not often that I get mentioned in a letter alongside Master Yoda and Walter Sobchak. But, it all seems to be for a good purpose -- protecting the right to free speech.

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Filed Under: 1st amendment, anti-slapp, anti-vax, brian festa, connecticut, dawn jolly, defamation, free speech, jay wolman, streisand effect, threats, vaccines

Companies: ct freedom alliance