Farber v. Jefferys, 2011 WL 5248207 (Nov. 2, 2011)

New York State Supreme Court Justice Louis B. York granted summary judgment in favor of Richard Jefferys, one of three defendants in a defamation lawsuit brought by Celia Farber, a journalist who has written numerous articles presenting in a favorable light the contention that HIV is not the cause of AIDS. This decision involves only the allegations against Jefferys.

The suit against Jefferys arose out an email where Jefferys asserted that Farber and a Dr. Duesberg [a leading exponent of the view that AIDS is a lifestyle disease and not the result of HIV infection] "are not whistleblowers, they are simply liars who for many years have used fraud to argue for Duesberg's long-discredited theory that drug use and malnutrition - not HIV - cause AIDS." Jefferys claimed that he could provide "many, many examples, including their altering of quotes from the scientific literature, false representations of published papers, etc." He argued that including Farber and Duesberg [in this Whistleblower Week event] "will, regrettably, discredit and demean your efforts to support the very real issues of recrimination against legitimate whistleblowers." Jefferys' email was, according to Farber's complaint, circulated to members of Congress and the media, the resulting controversy leading to Farber being dropped from testifying during Whistleblower Week, and resulting in SSI cancelling the public ceremony to give her the Clean Hands Award, instead presenting it in a private event.

In her complaint, Farber claimed his email was libelous because it falsely accused her of being a liar and engaging in fraud, "altering quotes from the scientific literature, and of falsely representing published works on the topic." Farber claims that the challenged statements by Jefferys were "per se" defamatory as "injurious to her reputation as a journalist." Jefferys, in response, argued that his statements were true and that he could provide documentation for all his claims. The law considers a statement to be "defamatory" if it would tend to injure the reputation of an individual. A statement that is likely to harm somebody's professional reputation is considered defamatory as a matter of law. Truth, of course, is a defense.

In this case, Jefferys argued that the statements he made were true. If the court found them to be true, that would be the end of the case, since in these circumstances truth would be a complete defense to a defamation charge. In this case the judge found it was unnecessary for the court to determine the truth of Jefferys' statements, since it was clear that Farber's allegations and proffered evidence in opposition to the summary judgment motion failed as a matter of law to establish actual malice or gross negligence.

Justice York's opinion summarizes the controversy over HIV as the cause of AIDS, showing that the medical literature overwhelmingly supports Jefferys' position on this. Whether the "HIV establishment" or the "HIV denialists" are correct is not the issue. Since it is a matter of public concern and debate, the issue is whether anything Farber alleged goes to show that Jefferys made deliberately false statements or statements for which there is not support in public statements by leading scientists in peer-reviewed journals. This full opinion provides a detailed history of the HIV denialism controversy and Celia Farber's role within that controversy. Justice York does not purport to make a finding as to the truth or falseness of Farber's reporting or Jefferys' criticism of it, because the actual malice and gross negligence standards made that unnecessary under the circumstances. This decision is not a judicial verdict on "HIV denialism." Instead, it is a strong defense of freedom of speech on contested questions of public policy.

The following synopsis is condensed from New York Law School Professor Art Leonard's excellent discussion on Leonard Link here.