‘Hyperbolic opposition’ to vaccine views not actionable

A doctor’s claims that a Washington Post article defamed him have been dismissed by the Western District of Virginia because the challenged statements regarded a matter of public concern and weren’t made with actual malice.

The Post’s article described the doctor as brilliant and experienced but sharply criticized his controversial views of COVID-19 vaccines as contrary to those of other experts and government officials.

U.S. District Judge Norman K. Moon found none of the challenged statements in the article were actionable.

“Unhappy with what he apparently views as the Post’s hyperbolic opposition to his position, Plaintiff invites the court to settle the matter,” the judge wrote. “The law, however, counsels that the court decline Plaintiff’s invitation to pick winners and losers in a scientific debate, such as that at issue here.”

Even if the statements were actionable, Moon said the allegations didn’t establish actual malice, adding that the Post was immune from the claims under Virginia’s anti-SLAPP statute.

The judge dismissed the defamation and insulting words claims in Malone v. WP Company LLC (VLW 023-3-610).

Critiqued views

Dr. Robert Malone, a licensed medical doctor, described himself as an “internationally recognized scientist/physician” and “a world-renowned scientist and expert in the field of mRNA technology” in his complaint for defamation and insulting words against the Washington Post.

As a “limited-purpose public figure” engaged in public health advocacy, Malone said his mission was to ensure vaccine safety, protect children, prevent vaccine mandates and identify other treatments for pandemics like COVID-19.

Malone makes frequent public statements and, in January 2022, the Post covered a 15-minute speech he gave about COVID on the steps of the Lincoln Memorial. While the article discussed Malone’s “impressive credentials” and long career, it also included critiques of his views.

Those included that Malone’s “discredited claims have bolstered a movement of misinformation,” were “not only wrong, but also dangerous” and called on him to “take a step back and reflect on the damage his misinformation is causing.”

Per the complaint, the Post’s article “represent[ed] an egregious attack on Dr. Malone’s character, expertise, standing in the medical community, and the truth.” Malone cited various tweets of criticism he had received and asserted damages to his property and business.

The Post moved to dismiss.

Scientific debate

Malone advanced claims of actual defamation as well as by implication. The Post didn’t deny that any of the 10 statements Malone identified were defamatory, but argued they were neither actionable nor published with the requisite intent.

To be actionable, a statement must be both false and defamatory, Moon noted. Defamatory words must tend to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.

“And to be false, a statement must ‘“reasonably be interpreted as stating actual facts,” as well as … “contain[ing] a provably false factual connotation,”’” the judge added.

The Post posited that their statements were constitutionally protected opinion and, even if they weren’t, they were provably true.

Moon agreed and cited 2023’s McCullough v. Gannett, Co., in which U.S. District Judge Rossie D. Alston Jr. of the Eastern District of Virginia observed that statements which aren’t factual assertions — such as opinions — couldn’t be the basis for defamation liability.

“To be sure, not all opinions are shielded from defamation liability,” Moon noted. “But some opinions are protected: when an opinion is uttered in the ‘marketplace of ideas’ such that the statement might “‘be corrected by discussion,’” the First Amendment will typically protect it.”

The judge said the First Amendment shielded statements “relating to matters of public concern which [do] not contain a probably false connotation, and ‘rhetorical speech’ that uses ‘loose, figurative, or hyperbolic language.’”

Courts have been reluctant to pick sides in scientific debates, Moon added. He compared Malone’s case to McCullough, in which the Eastern District found a media organization’s hyperbolic public debate about a doctor’s vaccination statements were non-actionable.

“The challenged Washington Post article examines the advocacy of Plaintiff — a ‘medical doctor and infectious-disease researcher’ who has espoused highly-disputed views regarding COVID-19 vaccines,” he wrote.

Here, Moon said the Post’s article was clearly about matters of public concern and scientific debate.

“No doubt, ‘Plaintiff may wish to defend in Court the credibility of [his] conclusions about the dangers of vaccines, the validity of the evidence [he] offers in support of those theories, and the policy choices that flow from those views — as well as [his] own credibility for having advanced those positions,” Moon said. “But ‘[s]cientific controversies must be settled by the methods of science rather than by the methods of litigation.’”

‘Hyperbolic opposition’

Malone claimed the article could be construed to imply or state that he lacked integrity or wasn’t fit for his profession.

But Moon pointed out that “‘[m]edia commentary can be sharp without being defamatory.’”

The article’s strong language was best characterized as protected rhetorical hyperbole in which the Post took a side in the public debate over the efficacy of COVID-19 vaccines, Moon said.

“[P]laintiff cannot enter a public debate and then cry foul when his views are criticized,” the judge wrote.

And even if the Post’s statements were actionable, Malone hadn’t plausibly alleged that they acted with actual malice.

“Indeed, the Court notes that Defendant consulted numerous reputable sources in writing the challenged story — a fact with other courts have determined ‘precludes a finding of actual malice as a matter of law,’” the judge said.

Remaining claims

A claim of defamation by implication requires allegations that the challenged language not only imparted a false innuendo but also suggested that the author intended or endorsed the inference, Moon described.

In addition to the “strong gist and implication” that he was “intentionally dishonest, deceitful, immoral, unethical and dangerous, and that he is unfit to practice medicine,” Malone claimed the Post “carefully chose its words and purposefully misrepresented facts” by ignoring his point of view.

Moon said those conclusory allegations were insufficient.

Similarly, the judge dismissed Malone’s insulting words claim, which Virginia routinely treats as an action for defamation without the publication requirement.

“Consequently, the Fourth Circuit has determined that defamation and insulting words claims ‘must ineluctably “rise or fall together,”’” Moon said.

Finally, the judge found that the Post was shielded from Malone’s claims under Code Ann. § 8.01-223.2, known as Virginia’s Anti-SLAPP statute, because the statements in the article were about a matter of public concern and weren’t published with actual malice.

Despite dismissing Malone’s claims, Moon declined to award attorney fees to the Post.