The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Free Speech

Epidemiologist's Criticism of "Daysy" Fertility Tracker are Constitutionally Protected


From today's Second Circuit opinion in Valley Electronics AG v. Polis, decided by Judges Jose Cabranes, Reena Raggi, and Susan Carney:

Valley Electronics AG [and related companies] … allege[] that Polis, a reproductive health epidemiologist, made defamatory statements regarding the marketing of Valley's product Daysy, which is designed to "identify the fertile and infertile phases of the menstrual cycle" using basal body temperature. The allegedly defamatory statements appear on Polis's blog on her personal website, in a BuzzFeed article quoting her, and in comments she wrote in response to others' Instagram posts.

The statements generally fall into two categories. In her "Science Statements," Polis allegedly misrepresented the soundness of the studies supporting Daysy's efficacy and disparaged Daysy's advertising in reliance on those studies. {See Compl. ¶¶ 18 (Daysy is marketed "without solid evidence"), 19 ("Daysy misrepresented their evidence-base"; Valley provides "[n]o reliable estimate" of Daysy's efficacy; and a retracted favorable study is "junk science"), 21 ("[N]o scientific publications demonstrat[e] how accurately Daysy [tells users when they are fertile]"), 23 (promoting Daysy "put[s] people in harms [sic] way").}

In her "Ethics Statements," Polis allegedly inaccurately impugned Valley's integrity. {See Compl. ¶¶ 18 (Valley is not "interested in providing accurate information to its potential consumer base"), 19 (Valley "made many other outrageous claims[;] … far too many to list"; "has no shame or integrity"; and "recklessly rejected" the retraction of a study), 21 (Valley is "particularly unethical").} …

Context suggests that Polis's statements were opinions [and thus not actionable libel].

Each publication in which Polis's statements appeared recited or referred to Polis's critique of a favorable-to-Daysy study and the publisher's subsequent retraction of that study, among additional critiques of Valley authored by Polis and others. Disclosing Polis's longstanding and ongoing role in criticizing Daysy "would induce the average reader … to look upon the communication as an expression of opinion rather than a statement of fact." {This disclosure and the inclusion of hyperlinks to other sources also provide "the basis for [Polis's] personal opinion, leaving it to the readers to evaluate [her claims] for themselves." We thus identify no factual allegations admitting a plausible inference that Polis's opinions implied knowledge of undisclosed facts. Cf. Gross v. N.Y. Times Co. (N.Y. 1993) (noting as actionable "a statement of opinion that implies a basis in facts which are not disclosed to the reader or listener").}

Further, the article published on the blog section of Polis's personal website and Polis's Instagram comments used "medi[a] that [are] typically regarded by the public as … vehicle[s] for the expression of individual opinion rather than the rigorous and comprehensive presentation of factual matter." Although Polis's website touts her scientific credentials and has a professional look, the writing on her blog is informal, and readers are put on alert that she is sharing her opinions by the statement at the top of the webpage that she "hopes to transmute her rage at social injustice and scientific denialism into something useful."

And Polis's quotes in the BuzzFeed article were qualified; she stated that "[i]t does not appear" that Valley is interested in providing its consumers accurate information, and the view that Valley lacked solid evidence was cast as belonging to "Polis and other critics." In light of these qualifications and the disclosure of Polis's prior advocacy, "it would be plain to the reasonable reader … that [Polis] was voicing no more than a highly partisan point of view."

In light of this context, we conclude as a matter of law that Polis's statements are nonactionable opinions. This conclusion is reinforced by the fact that the vast majority of Polis's statements carry no precise meaning as used. In context, the Ethics Statements in particular "are hyperbole and therefore not actionable opinion."