The Volokh Conspiracy
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An interesting case about libel and science; I will quote from the magistrate's report and recommendations in Santilli v. Van Erp (M.D. Fla.), which the district court just adopted yesterday. First, the summary:
This is a defamation action stemming from a series of articles that Defendant, Dutch scientist Pepijn Van Erp, posted on his personal blog. Plaintiffs are a scientist and his wife who research antimatter from their Florida laboratory. Antimatter is the opposite of normal matter: all sub-atomic particles have an equivalent antimatter particle with opposite charge and quantum spin. For example, the electron has an antimatter counterpart called the positron with the same mass as an electron but with a positive charge. Revising the maxim that matter can be neither created nor destroyed, scientists now believe that energy and mass are interchangeable—that when a particle collides with its antiparticle, the two annihilate each other (antimatter annihilation), with their mass being entirely converted into energy.
The rub is that scientists barely detect any antimatter in the observable universe. If antimatter is the opposite of matter, shouldn't there be an equal amount of both? This question has stumped nuclear physicists. Antimatter can be artificially generated and studied in huge particle accelerators, but this process is incredibly expensive.
Enter Plaintiff Ruggero Santilli, who claims to have developed a telescope with a concave lens (rather than convex, as utilized by a traditional telescope) that can detect antimatter. He has posted articles about his discovery on the website for his company Thunder Energies and in journals.
Defendant Pepijn Van Erp finds Santilli's discovery inherently suspect. So much so that Van Erp posted entries to his personal blog (www.pepijnvanerp.nl) titled "The Continuing Stupidity of Ruggero Santilli," "Finding JV Kadeisvili-or Mailing with Ruggero M. Santilli," and "More Santilli Shenanigans." These posts inspired viewers' comments, which read like a nerd's version of a fist fight. With Santilli's reputation as a cutting-edge research scientist on the line, Plaintiffs sued Defendants in state court in April 2017, claiming Defendants' online attacks have defamed Santilli and tortiously interfered with their business of marketing and selling the antimatter telescope (which Thunder Energies dubs the Santilli telescope). Defendants removed the case to this Court….
Plaintiffs moved … to preliminarily enjoin Defendants: they ask the Court to order Defendants to revise the title of one blog post and to remove defamatory content from another….
In February 2016, Van Erp posted the blog entry "The Continuing Stupidity of Ruggero Santilli" to his website. He attached a link to a You Tube video by Thunder Energies titled "Thunder Energies Discovers Invisible Entities" that touts the Santilli telescope's ability to detect antimatter galaxies, antimatter asteroids, and antimatter cosmic rays. Van Erp attempts to debunk Santilli's findings:
"This claim by Santilli might be the easiest to debunk of all the extraordinary claims he has made (like the existence of magnecules and his alternative explanation for why the sun colors red when it sets). The whole concept of antimatter-light is bullshit, because the anti-particle of a photon is simply a photon. So if you want to speak of antimatter-light it's no different than 'normal' light. 'Anti-matter light' will therefore not focus with a concave lens. I will not bother trying to give explanations for the grainy images he took with his Santilli-'out-of-focus'-telescope which he claims show Invisible Terrestrial Entities."
Van Erp's criticisms continue: "Santilli writes that he has an article on this discovery of Invisible Terrestrial Entities in press with the American Journal of Modern Physics. That's just one of those fake journals, which will probably print anything if you are willing to pay their fees." What follows is a string of comments by readers, who look to be scientists, amateur physicists, and followers of the paranormal. Most of these comments are critical of Santilli and his research; those that defend it are posted by a "Frank Stone," who Van Erp posits is actually Santilli. Some of the comments are benign—"Joaquim" writes, "I'm not really a young person and I've been building optics and telescopes since my youth, as a hobby. When I saw the telescope and that confirmation article, I thought something weird was going on, maybe I was going crazy or the laws of the universe changed while I wasn't looking. I just wanted to thank Mr. Pepijn for restoring my mental sanity." And some comments are just plain mean—"Christian Corda" writes, " ' Mr. Stone,' you are Santilli because you have not the balls to use your real name. It is better having my job rather than being a poor old and crackpot man obsessed by false conspiracies like you." Mostly the comments are a pseudo slug-fest between Van Erp in one corner and Frank Stone in the other.
In August 2016, Van Erp posted "More Santilli Shenanigans" to his blog. This article summarizes Santilli's reaction to Van Erp's earlier articles, "The Continuing Stupidity of Ruggero Santilli" and "Finding JV Kadeisvili—or Mailing with Ruggero M Santilli." [Footnote: This article accuses Santilli of reacting to criticisms of his work by publishing articles in support of his research under pseudonyms. Van Erp writes: "The board of the company is filled with relatives. His son is now CEO, his daughter in law CFO and they all pay themselves good salaries. Meanwhile, the company is making losses which run in the millions since start-up. It looks like a pyramid scheme."] Apparently, Santilli had sent Van Erp a cease and desist letter through his counsel, which Van Erp blogged about. What most offends Santilli from "More Santilli Shenanigans"—the language he asks the Court to order Van Erp to remove—is Van Erp's accusation that Santilli fabricated an award and bestowed it upon himself:
"To most people it will be clear that this award was instigated by mr. S himself and that he just asked his co-worker Georgiev to organize the signatures. There is a clue that this piece of paper was doctored at the offices of mr. S: the filename of the picture is 'TARPON_2.jpg', which points to the address of his business (1444 Rainville Road, Tarpon Springs, Florida). Im sure that these are just two more events we can add to the long list of fringe activities on Santilli's curriculum vitae."
"The Continuing Stupidity of Ruggero Santilli" appears second in a Google search of Santilli. Plaintiffs allege that Van Erp's blog has scared off potential investors in Thunder Energies, and they attach two affidavits to their motion from consultants saying just that….
The defamation analysis:
Plaintiffs … are not likely to succeed on the merits of their defamation claims…. Plaintiffs' complaint focuses on the following allegedly defamatory statements: Van Erp refers to Santilli as a "fringe scientist," a "mad professor," and a "cunning scam artist" who publishes articles in "fake" journals; he accuses Santilli of fabricating awards; Van Erp writes that Santilli uses pseudonyms online to compliment his own work; and Santilli paystohavehisresearchpublished. All in all, "[t]he very nature of the subject matter, tone and insinuations of The Subject Articles, along with stating that Ruggero is continuing in stupidity, reflects negatively on Ruggero in his profession as a scientist and an inventor."
Read in context, a reasonable reader would recognize Van Erp's posts as inviting intellectual rivals to engage in a scientific disagreement. Labeling Santilli a "mad professor," and a "fringe scientist," are subjective assessments of Santilli's work and not readily capable of being proven true or false…. Notably too, Van Erp includes links to Santilli-created content—websites and articles of Santilli's original research—and links to other primary sources he consulted in forming his (often scathing) rebuttal. Under Florida law, commentary or opinion based on accurate facts set forth in an article "are not the stuff of libel."
Van Erp's comment that Santilli is a "cunning scam artist," standing alone, maybe construed as accusing him of a crime. Here is the entire comment: "Is Santilli just a mad professor? Or is he a cunning scam artist trying to sell his 'Santilli-ofocus-scopes' (or even better: stock in his businesses) to people who fall easily for sciency sounding nonsense? Maybe both …" This statement—in the form of a question—is non-actionable rhetorical hyperbole that a reasonable reader would interpret as a "vigorous epithet" offered by a scientist who considers Santilli's theories and inventions the stuff of science fiction.
At bottom, this quarrel between Santilli and Van Erp arises from both sides' research into theories that are almost 100 years old regarding how to reconcile combined quantum mechanics with Einstein's theory of relativity. In this context, and considering the cutting-edge nature of Santilli's research into antimatter's theoretical applications, a reasonable reader would expect zealous debate.
Significantly, readers were invited to respond to Van Erp's criticism of Santilli as a part of an interactive online discussion. Some of these comments were favorable to Santilli's scientific theories, some were not. The media vehicle Van Erp chose—blog posts on his personal website—is popular for just this type of debate, and is the type of online forum where a reasonable person expects to find controversy and accompanying rhetoric. I find that Plaintiffs are not likely to succeed on their defamation claims….
The injunction analysis:
Under Florida law, there is a "well-settled rule prohibiting injunctive relief in defamation cases." If the allegedly defamatory statements constitute or are incidental to conduct that constitutes intentional interference with a potentially advantageous business relationship, however, there is a limited exception to the general rule that equitable relief is unavailable in defamation cases. But there must be an independent basis for invoking equitable jurisdiction. In other words, Plaintiffs must establish a clear legal right to injunctive relief on their tortious interference claims because, standing alone, injunctive relief is unavailable on their defamation claims….
It is clear from Plaintiffs' second amended complaint that they only nominally sue for tortious interference with a business relationship; defamation is the crux of their case. Most of their complaint alludes to Van Erp's allegedly "false," "malicious," and "disparaging" statements about Santilli on his blog. But, in any event, Plaintiffs have not established that they likely will succeed on their tortious interference claim. To prevail, a plaintiff must prove (1) the existence of a business relationship [with or without an enforceable contract, but something beyond just an offer to sell]; (2) knowledge of the relationship on the part of the opposing party; (3) an intentional and unjustified interference with the relationship by the opposing party; and (4) damage to the plaintiff as a result of the breach of that relationship…. Plaintiffs stumble over the first element of the cause of action…. [Defendant's evidence avers merely] that Van Erp's blog posts have interfered with [their consultant's] ability to develop business relationships with unnamed and unknown potential investors on Plaintiffs' behalf. This is not the proximate cause contemplated by Florida [interference with business relations] law….
[Moreover, p]rior restraints [such as preliminary injunctions] are the most serious and intolerable of First Amendment infringements. Plaintiffs offer no extraordinary circumstance to justify overriding the strong public policy against imposing a prior restraint on speech….
Finally, an interesting footnote:
Neither side addresses whether Van Erp, a Dutch citizen who resides in the Netherlands, can assert First Amendment concerns; but if he can be called into court here, it follows that he can assert all available defenses to the claims against him.
Sounds right to me.