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Judge Dismisses Libel Claim by Mask Mandate Opponent Against The Daily Beast
From Judge Hala Jarbou (W.D. Mich.) today in Kelly v. Daily Beast Co. LLC:
Plaintiff Kristen Meghan Kelly sues an online news website, The Daily Beast Company LLC, and its writer, Larrison Campbell, for alleged harm stemming from an article written by Campbell about Kelly. The other defendant is the American Industrial Hygiene Association ("AIHA")….
According to Kelly's complaint, she is a "senior industrial hygienist" with over 19 years of experience in "developing, analyzing and implementing workplace health and safety protocols." She has "presented testimony before legislative committees, appeared in documentaries, … and been engaged as a consultant throughout the country regarding workplace health and safety issues." Among other things, she opposes "mask mandates," i.e., government and private sector requirements to wear masks as a means to mitigate the spread of COVID-19. In April 2021, she appeared at a school board meeting in Hudsonville, Michigan, to express her opposition to its mask mandate. She created a video of her attendance at the meeting and then posted the video online.
Kelly's video caught the attention of Campbell, who contacted Kelly and discussed it with her. The Daily Beast later published Campbell's article about Kelly, which is titled, "Meet the Anti-Mask Michigan 'Scientist' Stoking the Fourth Wave."
Kelly sued for libel, but the court rejected the claims against The Daily Beast and Campbell. (It concluded that AIHA didn't adequately move for dismissal). Here is what strikes me as the heart of the analysis:
[None of the allegedly libelous] statements/claims give rise to a defamation claim against Defendants.
[1] Kelly is anti-mask. The Article's headline refers to Kelly as an "anti-mask" Michigan scientist. In context, this is not a false statement of fact. "Anti-mask" is simply a shorthand reference to Kelly's opposition to mask mandates. Indeed, Kelly makes a similar assertion about The Daily Beast, saying that it has a "pro-mask, pro-vaccine agenda."
[2] Kelly is stoking the fourth wave of COVID. This assertion is not provable as false. It is rhetorical hyperbole that cannot serve as the basis for a defamation claim against Defendants.
[3] Kelly is not a scientist. The Article does not make or imply this assertion.
[4] Kelly is leading the charge in her own state and nationwide against wearing masks.
Kelly does not allege or indicate what is false about this assertion, which simply refers to her prominence in advocating against mask mandates.
[5] Experts in Kelly's field are losing it. It is not clear why Kelly believes this statement is false. It is another example of rhetorical hyperbole, referring to the fact that other industrial hygienists disagree with her advocacy. It is not an actionable statement.
[6] Leading scientists are not on Kelly's side. Kelly does not indicate why she thinks this statement is false.
[7] 99% of AIHA's members believe that face coverings are one important strategy for reducing [COVID] risk. This statement says very little about Kelly. At most, it implies that she disagrees with most AIHA members on whether mask-wearing is an "important" strategy, which is an inherently subjective issue that is open to debate.
Furthermore, the statement is not actionable because the "99%" language is Sloan's [the AIHA CEO's] estimate about the high degree of support among AIHA members for the proposition asserted. There are no facts from which to infer that Defendants recklessly disregarded the truth when reporting this statement. Kelly does not allege facts suggesting that Defendants had serious reason to doubt the veracity of the statement. Indeed, Kelly herself does not identify why the statement is false.
Kelly notes that, in an email attached to the complaint, Sloan told another person, "When I read the article I winced when I saw that quote. That is not what [sic] said, and we have notified the editor accordingly." The Daily Beast subsequently changed the Article to say that the "vast majority" of AIHA's members "believe that face coverings are one important strategy for reducing risk." However, Kelly attributes any falsehood in the statement to Sloan; she alleges that "Sloan [k]new his statements were false when he made them to Campbell." Yet there are no facts from which to infer that Campbell or The Daily Beast had reason to know of any falsehood in what Sloan told them. Thus, Kelly has not alleged actual malice by Defendants in connection with that statement.
[8] Kelly's activism is very dangerous and is undermining the science of industrial hygiene. Here, Defendants were reporting the opinion of Sloan about his perception of the impact of Kelly's activism. They were not making provably false statements of fact about that activism.
[9] Kelly is not a senior industrial hygienist. The Article did not make this assertion. Instead, it reported the opinion of one person who purportedly said that a senior industrial hygienist is "not a real thing." It also reported Kelly's reasons why she believes that the term has meaning in her profession. In doing so, Defendants did not make a false statement of fact. Indeed, the assertion that Kelly's job title "is not a real thing" is clearly a subjective opinion expressed in loose, rhetorical terms. It is not an assertion that is provable as false.
[10] Kelly's affidavit was removed from the Tennessee Stands website after inaccuracies came to its attention. Kelly objects to this statement because she asked Tennessee Stands {a group that "fights against COVID restrictions}, to remove the affidavit due to concerns that it contained her personal information. However, Defendants reported her account in the Article. Notably, Kelly does not challenge the substance of Defendants' statement, which is that Tennessee Stands told The Daily Beast that it learned of inaccuracies in her affidavit before it removed the affidavit from its website. Indeed, it is possible to reconcile that statement with Kelly's account. In other words, both can be true at the same time: Kelly asked Tennessee Stands to remove the affidavit and Tennessee Stands learned about inaccuracies in that affidavit before it did so. Thus, Kelly has not adequately alleged a false statement.
Moreover, Kelly does not allege facts sufficient to establish actual malice by Defendants. To the contrary, the Article purports to identify several inaccuracies in the affidavit, undermining any contention that Defendants recklessly disregarded the truth.
Kelly compares this situation to other circumstances where a court could find there was a reckless disregard for the truth, including: reliance on an "unverified anonymous telephone call"; publishing statements that are "inherently improbable"; or publishing statements by an informant where there were "obvious reasons to doubt the veracity of the informant." None of those circumstances are present here. The Article cited an unnamed source, not an anonymous one, and it verified the information provided by identifying several inaccuracies in the affidavit and then giving Kelly an opportunity to respond. Apparently, she did not refute those inaccuracies when responding to Defendants and she does not do so here. Also, the inaccuracies in the affidavit and the discovery of them by Tennessee Stands were not "inherently improbable." Finally, Kelly provides no facts that would suggest there were obvious reasons for Defendants to doubt the truth of the information received from Tennessee Stands. As indicated, the statement from Tennessee Stands did not directly contradict with Kelly's account.
[11] Kelly submitted false information in the affidavit. The Article did not make this statement, but it did purport to identify inaccuracies in the affidavit. However, Kelly does not explain how any statements in the Article about the contents of the affidavit are false. Instead, she simply makes a conclusory assertion in the complaint that "[t]here were no inaccuracies in the affidavit." The Court need not accept this conclusory assertion as true….
Kelly alleges no facts indicating that Defendants made any provably false assertions of fact or selectively omitted any crucial relevant facts. And as to the affidavit, there are no facts indicating that Defendants intended to imply that Kelly committed perjury. Thus, for all the foregoing reasons, Kelly fails to state a defamation claim against Defendants….
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https://www.ncbi.nlm.nih.gov/pmc/articles/PMC9017682/
Nice summary of the robustness of the mask studies
inconclusive at best.
We will never get an apology. The mask mandate people are so in love with themselves that literally anything they decide to do is self-justifying. And when it eventually turns out wrong then it was still justified because everyone besides them is so much worse than them.
What exactly do you think you are owed an “apology” for? Let’s say that the benefits of mask mandates are unclear. This isn’t like school closures; the costs of mask mandates were clear and tiny.
People who wouldn’t wear masks were not doing it because they had read lots of research papers and didn’t think the benefits justified the costs; they were doing it because they were assholes.
David Nieporent 6 mins ago
Flag Comment Mute User
“People who wouldn’t wear masks were not doing it because they had read lots of research papers and didn’t think the benefits justified the costs; they were doing it because they were assholes.”
lots of those who didnt wear masks did do sufficient research and concluded that the effectiveness was trivial .
Subsequent data demostrates that proposed benefits of masking was in fact trivial.
This big study in Europe found null or slight positive correlation between masking compliance and Covid morbidity and mortality.
This makes sense in that the virus ai 0.1 microns will not be effectively stopped by even an N95 that stops 0.3 microns or larger. However, to the degree that a mask makes breathing more difficult you will expend more energy necessitating more breathing than without a mask. More breathing puts you at greater risk of airborne virus.
https://pubmed.ncbi.nlm.nih.gov/35607577/
inconclusive at best.
What? Did you read the article? The takeaway is that N95 and surgical masks are very good, and cloth masks not so good but still better than nothing. Which is what I feel like we’ve known for a long time.
This makes sense in that the virus ai 0.1 microns will not be effectively stopped by even an N95 that stops 0.3 microns or larger.
This sentence demonstrates why retarded assholes shouldn’t dabble in medical science. Viruses don’t have wings. They aren’t flying around on their own from person to person through tiny holes in your mask. They’re carried in various ways, one of them being “droplets” like when you cough or sneeze. The droplets are huge in comparison to the virus itself. Even if the only thing masks accomplished were to prevent someone else’s sneeze droplets going in your mouth, that would be worth it.
Yes, I read the article. When you exhale you can expel large droplets, small droplets and even individual virus particles.
The fact remains that those who approve of and implement mask mandates, that are shown to be ineffective or slightly counterproductive, are Science Deniers.
Thanks for being an example.
David Nieporent:
Look into how Hitler took over Austria. Same thing.
No, we need a pound of flesh — Fauci’s will work — and nothing prevents a GOP-controlled HOUSE committee from subpoenaing Fauci and then asking Rand Paul, MD to question him for them — not unlike when the AZ Prosecutor was asked to question Brett Kavanaugh at his confirmation hearings.
We need to say NEVER AGAIN!!!
How exactly is it that you think Hitler took over Austria?
Mask mandates.
So where were the arguments that the damage to children’s development were justified by the (almost entirely illusory) benefits of mask mandates in child care environments?
“…damage to children’s development were justified…”
Anything to make Americans’ lives worse.
Don’t you mean the entirely illusory damage to children’s development from wearing masks?
David the damage is well documented & very well known
Well known by individuals who have actually looked at the research.
No, it is not well documented. It is all pure speculation.
And good luck getting phenomenological data since schools were closed for most of that time which will have a more direct effect on development.
You just fervently believe random bullshit and declare everyone who calls you in it an ignoramus.
Sarcastr0 14 mins ago
Flag Comment Mute User
“No, it is not well documented. It is all pure speculation.
And good luck getting phenomenological data since schools were closed for most of that time which will have a more direct effect on development.”
According to sarcastro – its not well documented
the increase in teen suicides
the drop in educational performance
The drop in normal childhood development, social skills, immune system development, etc
Your causality fell off.
Or did you forget you were talking about masking?
Correct: those things are not well-documented. And the documentation of their connection to mask mandates — which is the topic under discussion — is non-existent. We’re not discussing remote vs. in-person schooling. We’re talking mask-wearing.
Nieporent : What exactly do you think you are owed an “apology” for? Let’s say that the benefits of mask mandates are unclear. This isn’t like school closures; the costs of mask mandates were clear and tiny.
An actual libertarian would spot the cost in liberty of requiring hundreds of millions of people to wear masks.
But a LINO would not notice this.
Check out Prof Volokh’s notes on the cost benefit before you get too deep into your ideological gate keeping.
Do you also think that laws requiring people to wear pants in public is a significant cost in liberty?
Relaxing your “pants” rule to something like “you have to wear something opaque covering your naughty bits when you are in the presence of someone who has not consented to view them” then your “pants” rule is a moderate cost to liberty. Most people would perceive no cost to themselves as that’s what they would be doing by choice anyway. Though some would not choose to do that some of the time.
Meanwhile, we can judge how many people would choose to wear masks if there were no rule requiring it, by observing who wears them now, when it is not required. And the answer is almost nobody. As was the case pre-mandate.
That people do not choose to wear them is hardly surprising. They are uncomfortable, especially N95s, and they restrict breathing to some extent which is disagreeable, especially to those with already wheezy pipes.
So the “pants” rule imposes a discernable cost on say 1% of the population, 1% of the time. A mask mandate : on say 95% of the population, 30% of the time.
The cost of a rule to liberty (aside from the mere harrumph factor of “who do they think they are, ordering everybody about ?) is related to how often and how much it requires a citizen to deviate from his or her voluntarily chosen path.
Only a LINO would need this explained.
Are you serious, Lee? David’s point is that it’s a trivial burden. A burden on a lot of people, yes, but a trivial one.
Your point is also that it’s a trivial burden on a lot of people. A “discernable cost” is a trivial cost.
Asking for an apology is just an extension of the “who do they think they are” factor that you identified. Masks had no significant cost on hardly anybody.
Any anyway, masks were effective! Not 100%, but nobody ever said they were.
A “discernable cost” is a trivial cost.
Nope, a discernable cost is a cost that can be discerned. Ranging from the trivial all the way to “Hey ! what happened to my leg ?”
Masks had no significant cost on hardly anybody.
Nope again. Leaving aside any objective measurable harms either to health or social intercourse, and leaving aside the “who do they think they are ?” liberty cost (which ought to concern a real libertarian) wearing a mask is irritating for 99.9% of all humans who wear them. (I accept the possibility that there are some folk who actually enjoy wearing them.) Precisely how irritating varies from person to person.
Personally, I found wearing an N95 very uncomfortable, especially for a long period. On one flight I had to swap it out for a surgical after three hours or so, because it interfered with my breathing too much. Even wearing a surgical was irritating – less so, but irritating all the same. Even a surgical measurably increased my heart rate.
There were two or three occasions when I forgot to restock the car with masks, so I had to turn back to fetch some from home. Only ten minutes wasted here, twenty minutes there, and late for an appointment. Not yuuuge, but still annoying.
In my case, i would have been willing to pay say $5,000 for a full mask mandate waiver. That’s a rough measure of how irritating I found it. OK I’m quite well off, and maybe the average Joe wouldn’t have gone beyond $100.
In contrast, I don’t recall ever having found the wearing of pants (or other naughty bits coverings) irritating.
Oh my god.
What exactly do you think you are owed an “apology” for?
They want an apology for being called anti-social idiots, i.e. assholes. Unfortunately for them, their behavior fits that description objectively. No scientific study is going to come out and prove that these anti-masking assholes aren’t assholes.
Mask mandates work great. That’s why almost no one got Covid and Covid quickly disappeared from existence.
Ritualistic health measures like mask-wearing, standing on stickers on the floor, and knocking wood for good luck are wise and obviously pass all rational basis tests. No matter how stupid the government rules, you have a duty to participate in them enthusiastically.
Remember, we’re all in this together (except when the people who make the rules want to attend a party maskless or do a photo op — then they have a special elite status that makes them immune to disease).
Well said!
The CDC still lists multiple studies supporting masking based on peer reviewed studies.
Bangledash study
Kansas county mask mandate/non mandate county study
Arizona School mask study
boston shool mask study
several others,
all peer reviewed concluding masking works , yet with deep flaws, design errors and data collection errors, but hey – in lab tests and in theory masks are suppose to work!
Our computer models all said that our new Pelletizer (a machine for chopping up the excess plastic from injection molding and letting it be re-melted) would survive a piece of steel being dropped into the blades. That’s why we shielded it before testing. (It didn’t survive and the inner shielding was destroyed)
And if you were to spend the amount of time & money that was spent on Covid, you will find the error that led to your computer model being wrong. I would start with type of steel and angle of initial impact and I’m not even an engineer…
But, having seen that your model was wrong, are you now going to sell that item and tell customers not to shield it? Of course not, because YOU can be sued. The virus nazis, not so much….
It gets worse — See: https://jme.bmj.com/content/early/2022/12/05/jme-2022-108449
“Booster mandates in young adults are expected to cause a net harm: per [each] COVID-19 hospitalisation prevented, we anticipate at least 18.5 serious adverse events from mRNA vaccines, including 1.5–4.6 booster-associated myopericarditis cases in males (typically requiring hospitalisation). We also anticipate 1430–4626 cases of grade ≥3 reactogenicity interfering with daily activities (although typically not requiring hospitalisation).”
And yet IHEs are nonchalantly requiring boosters.
“…IHEs are nonchalantly requiring boosters”
Anything to make Americans’ lives worse.
N-95 is an OSHA/NIOSH specification — it was never intended to stop viri — which are about 1/10th the diameter of the mask’s weave.
From the CDC website, prior to politicization:
Unvaccinated Asymptomatic Persons, Including Those at High Risk for Influenza Complications
No recommendation can be made at this time for mask use in the community by asymptomatic persons, including those at high risk for complications, to prevent exposure to influenza viruses
Why do doctors wear masks during surgery? Is it because they don’t work?
To prevent infection of wounds by bacteria. Covid is not a bacteria.
to slow the spread of bacteria .
covid is a respriritory virus, cloth masks are very inefficient against airborne viruses.
A good study to look at is the Fargo / west fargo school study which shows virtually no difference in mask vs non mask.
The other studies I listed above peer reviewed and promoted by the CDC, all have deep flaws,
I wonder how much damage was done to athletes required to run wearing masks…
Joe_dallas — Is it your point that everyone should have been wearing N95 masks? Or do you have studies to show those are no good too?
There is a recent study on the (in)effectiveness of N95s, which claims to show that N95s are no more effective COVID prevention than surgical masks. It was based on medical personnel usage and basically showed no significant difference between COVID rates between N95 users and surgical mask users.
However :
1. Medical folk are not in medical facilities all the time, so they can catch COVID elsewhere. Nevertheless, on average, if medical facilities are a good place to catch COVID and if N95s are better, you would still expect some measurable benefit from wearing N95s at work.
2. It is possible (indeed likely) that the N95s were not used properly, ie not worn tightly enough, or poor procedure in putting them on and taking them off. ie the study demonstrates that N95s as actually used by the tested medical personnel appear not to have an advantage over surgicals, but it does not demonstrate that 100% correctly used N95s don’t have an advantage. But then if medical folk don’t use them properly, what hope for the rest of us ?
Lee Moore — If the intent of a study is to demonstrate that misuse negates available benefits, what should we make of that?
On he other hand, if the subject under study is a sample of well-trained users highly motivated to use the masks correctly, and if they still fail to provide expected protection, that tells us something about the masks.
For instance, during the early stage of the Covid pandemic, Massachusetts General Hospital became the principal care center for the sickest patients in eastern Massachusetts. For months it treated a typical case load of hundreds of such patients. Many died.
From conversations I had with nurses who worked with those patients at the time, I have the impression that masking protected many of the nurses effectively, from what was necessarily massive exposure. But those were only conversations. I would like to see that situation, or some similar situation, systematically studied.
1. I’m not sure whether the study set out to prove a particular theory, I think they just wanted to see which way the evidence pointed.
2. IIRC the bit about actual and correct mask usage was simply a commentary on the result of “makes no difference” – it was the researchers pointing out that incorrect usage might conceal a difference that was not discovered
3. I’m all for anecdotes, but studies if well designed and executed are more useful
Lathrip
No – the major problem with masking and other mitigation protocols was that covid was too deeply embedded into the general population by early spring of 2020 to have any chance of containment. So even if masks worked , it was impossible to achieve any long term solution .
The Article’s headline refers to Kelly as an “anti-mask” Michigan scientist. In context, this is not a false statement of fact. “Anti-mask” is simply a shorthand reference to Kelly’s opposition to mask mandates. Indeed, Kelly makes a similar assertion about The Daily Beast, saying that it has a “pro-mask, pro-vaccine agenda.”
One of these things is not like the other. “Anti mask” is literally false. As a shorthand for “anti mask-mandates” it is true. But “pro mask” is true both literally and as a shorthand for “pro mask-mandates.” A listener who took the plaintiff literally would never infer an untruth about the defendant. The contrary, not so much.
So the judge’s equation of the plaintiff’s shorthand with the defendant’s shorthand is an exercise in false equivalence.
Moreover I’m not quite sure about this “just a shorthand” thing. If I refer to a teacher who likes to introduce (pedagogically) the minors in their charge, to BDSM, leather gear, sex toys etc as a “pedo”, do I escape any possible liability simply because pedo is used as a shorthand for “teacher who teaches inapproprate sex stuff to minors” ?
“Anti mask” is literally false. As a shorthand for “anti mask-mandates” it is true.
As shorthand for, “political opportunism at the cost of reckless disregard for public health,” it has also been true.
And there were anti-mask mandate people who were not anti-mask. But the correlation is incredibly strong.
I’m quite prepared to believe that there’s a strong correlation between thinking masks are practically useless and opposing mask mandates. But I’d be surprised if there were many anti mask-mandate folk who objected to people wearing masks by their own choice.
I am quite strongly anti-mushroom. I hate the taste of the things, though I will swallow them with a rictus smile if a host serves them up. So I would strongly oppose a mushroom mandate, both on liberty grounds and on yuck grounds. But I have no objection to you eating the filthy things. So I’m anti-mushroom for me, but not for thee.
Sarcastr0 14 mins ago
Flag Comment Mute User
“No, it is not well documented. It is all pure speculation.
And good luck getting phenomenological data since schools were closed for most of that time which will have a more direct effect on development.”
According to sarcastro – its not well documented
the increase in teen suicides
the drop in educational performance
The drop in normal childhood development, social skills, immune system development, etc
Answered above. You lost the thread. Yet again.
https://www.cgdev.org/publication/learning-loss-and-student-dropouts-during-covid-19-pandemic-review-evidence-two-years#:~:text=Dropout%20rates%20ranged%20dramatically%2C%20from,curtailed%20many%20adolescents'%20schooling%20careers.
sarcastro – try doing actual research
So, to reiterate the exact same points since you lost the thread the first time… the subject is mask mandates. That article isn’t even about mask mandates. So what are you talking about?
Randall – I am basing my comments on the effectiveness of masks in the real world.
You are the one calling people who didnt wear masks assholes.
However, the reality is that covid is a resporitory virus, of which masks are highly ineffective. If masks were effective, the virus would not have spread so quickly through out the population.
You keep posting irrelevant stuff with no connection to masks.
This has gone beyond your usual unearned certainty and condescension to you knowing you slipped up but being unable to admit it,
You need to respect yourself enough to realize admitting a minor error will not kill you.
At the motion to dismiss stage I would allow suit for saying “anti-mask” instead of “anti-mask mandate”.
The article is titled: “Meet the Anti-Mask Michigan ‘Scientist’ Stoking the Fourth Wave.”
The “learned judge” says: “Kelly is not a scientist. The Article does not make or imply this assertion.”
Does the “learned judge” not understand what message the quotation marks around “scientist” it the title are intended to convey, and how they are damn near universally inderstood, except, apparantly, by this “learned judge”? Is there any plausible reason to put “ecientist” in quotes other than to imply that she’s not a real scientist?
You defamed me with scare quotes! Now pay up.
Anyway, no, I don’t think “scientist” implies not-scientist. It suggests skepticism of the claim. Expressing skepticism doesn’t count as defamation, despite right-wing crybabies’ hurt feelings.