Manhattan Supreme Court Justice Louis B. York ruled last week in Farber v. Jefferys, 106399/09, that the journalist, Celia Farber, was a public figure for the purpose of the lawsuit and that her defamation claims against AIDS activist Richard Jefferys could not survive the heightened scrutiny required for public figures.
Ms. Farber began covering the AIDS epidemic for Spin magazine in the 1980s. While at Spin, she conducted a sympathetic interview with Peter Duesberg, a professor of biology at the University of California at Berkeley who rejects the scientific consensus that AIDS is caused by HIV. Mr. Duesberg claims the disease is caused by recreational drug use, and is sometimes aggravated by antiviral drugs used to treat it. He contends that HIV is a harmless "passenger virus" and has argued that the pharmaceutical industry has suppressed dissent in order to sell antiviral drugs.
Ms. Farber continued to give sympathetic coverage to Mr. Duesberg and write skeptically of the medical establishment on the issue of AIDS, culminating in a 2006 article in Harper's, "Out of Control," in which she castigated "so-called community AIDS activists" who "were sprung like cuckoo birds from grandfather clocks." Ms. Farber and Harper's drew harsh criticism for the article. A group of doctors and activists, including Mr. Jefferys, head of the anti-AIDS Treatment Action Group, published a widely circulated 56-point refutation of the article.
In 2008, the Semmelweis Society International, an organization formed to support whistleblowers in the medical field, announced that it was going to give an award to Ms. Farber and Mr. Duesberg for their dissent about AIDS. The group said the award was prompted by the Harper's article.
After learning of the award, Mr. Jefferys sent a Semmelweiss employee an e-mail saying that Ms. Farber and Mr. Duesberg were "not whistleblowers" but "simply liars." He said he could provide numerous examples of their dishonesty, including "altering of quotes from the scientific literature, false representations of published papers, etc." This e-mail is the core of Ms. Farber's defamation suit. She said the e-mail was circulated among members of Congress and the media, that it was false and that it was intended to destroy her reputation.
Mr. Jefferys filed a pre-answer motion to dismiss the lawsuit. He said the e-mail was true, and that Ms. Farber was a public figure, making her defamation claims subject to a heightened standard of scrutiny.
Justice York agreed. He noted that Ms. Farber has been writing about AIDS since the 1980s and has spoken at conferences on the subject. He also pointed to examples submitted to the court by Ms. Farber of hostile online statements made about her by AIDS activists. These examples, he said, actually hurt her case.
"Although her purpose is to show the animus of the traditional HIV/AIDS community and impugn defendants' motives in making their statements against her, it also illustrates dramatically that, to AIDS activists angry at the dissenters, Farber has a celebrity status and notoriety," he said.
"Finally, Farber acknowledges that the article 'Out of Control' appeared in Harper's magazine, which has a widespread reputation; that the publication of 'Out of Control' generated enormous attention and publicity not only for the article but for her as its author, resulting in a series of articles about both; that internationally known members of the traditional HIV/AIDS community felt compelled to publish a lengthy document refuting the contentions in 'Out of Control,'" the judge wrote.
"Thus, Farber's own complaint and the papers she submits in opposition to this motion establish that, in the limited context of issues surrounding AIDS and HIV dissenters and the question of whether HIV causes AIDS, she is a public figure," he said.
Furthermore, Justice York said, even if Ms. Farber were not a public figure, Mr. Jefferys' e-mail would be subject to a heightened standard because it involved a matter of public concern. Allowing the defamation claims to go forward would have a chilling effect on the public discourse on an important subject, he wrote.
The judge also rejected Ms. Farber's argument that the suit should go forward even under a heightened standard because Mr. Jefferys' e-mail showed gross negligence.
"Here, Jefferys relied on numerous reliable sources," the judge wrote. "Thus, Jefferys did not exhibit constitutional malice or gross irresponsibility when he relied on them and on his own prior professional research to reach his conclusions about Farber's work as a journalist in 'Out of Control' and her other writings."
Ms. Farber had focused on the word "liar" as an example of gross negligence. But Justice York said that "liar" was just an example of the heated rhetoric around the dispute, noting that Ms. Farber had used similar rhetoric herself.
"Through the various references to him and other 'so-called activists' in the Harper's piece, she strongly suggests that Jefferys and others lie, twist facts or hide data in order to remain in the good graces of the pharmaceutical companies which support them financially," he wrote. "She also accuses him of lying about whether there is a debate as to the cause of AIDS. …Indeed, in her affidavit in support of her opposition, Farber hurls accusations at Jefferys which are strikingly similar to those he has hurled at her."
Andrew T. Miltenberg of Nesenhoff & Miltenberg, counsel to Ms. Farber, said in an e-mailed statement that "We are undeterred and looking forward to appealing this important case. Ideology and belief trumped documented facts in this decision, which is precisely the matter at the heart of this lawsuit. To date, neither Harper's itself nor a single source in Farber's article have disputed her facts.
"We will continue to fight to preserve freedom of the press so that those who report true stories that are unpopular, or threaten industries, are not in a position to be professionally assassinated by the very people whose wrong-doings are exposed. This case is not about a single journalist but about the fate of journalism itself, which has been over-run by vested interests who deploy intimidation tactics to control the press."
Mr. Jefferys was represented by Joseph Evall of Gibson Dunn & Crutcher. He declined to comment.