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Monica Pignotti Critical Thinking Series Lesson 2: Facts are Facts Regardless of Who Utters Them

July 6, 2010

Ronald Federici, PsyD, sued Jean Mercer, Charly D Miller and Advocates for Children in Therapy in small claims court in Virginia for defamation and interference with business. He lost the small claims cases (the ruling was for the defendants). However, he has now appealed the cases to a higher court, which means if it gets past the initial hearing stages (which is still yet to be determined) the case could go to a full, jury trial.

To continue my free critical thinking lessons, today I will be focusing on the fallacies of argumentum ad verecundiam (authority) and argumentum ad hominem. Click here for some definitions.

Just to clarify, we don’t know if the anonymous postings are actually revealing the strategy that Ronald Federici is going to employ, but whoever wrote them, they do provide exemplars of logical fallacies and hence, a critical thinking teaching opportunity.

The core of any libel/defamation case is whether something factually false was written about the plaintiff. If the statement is one of opinion, not fact, there is no basis. If the statement is true, there is no basis. The burden of proof in the US is always on the plaintiff to show that the statements were factually false. The burden of proof is not on the defendant. Thus, in order to win a libel case, one key element is that the plaintiff must prove the statements written were factually false. If he cannot do that, he loses, regardless of how successful he is at discrediting the defendants. The defendants could be the worst, most sleazy human beings ever to walk the face of this planet or the most flaky kooks in existence, but if the plaintiff cannot prove the statements they made were factually false, the plaintiff cannot win the case.

If the postings are any indication of strategy, the plaintiff, it is my opinion and prediction, will be in for a rude awakening (and again I point out that we cannot know this for sure because they are anonymous postings by people who appear to be supporting Federici, but this might not actually be his strategy — so to give him the benefit of the doubt, he might just have very ignorant supporters). The latest anonymous postings on Fairfax Underground and the latest WordPress smear blogs appear to be attempting to retry a long dead civil case against a company (not Sarner personally) and his part in the case ended in 1996. Larry Sarner was never, ever charged with anything criminal, yet the postings are calling him a con man. Now if the posters were not anonymous or could be tracked down, it is Sarner who might just have a case to sue for libel and defamation because he has never been charged, much less convicted of any criminal activity whatsoever.  There is no evidence he is guilty of any fraud, any con job or anything like that. This, however, is secondary to the key issue, which is that even if he had been, the argument is essentially an ad hominem argument — attack the person rather than the substance of what has been written.

Perhaps a more obvious, made-up example will clarify this issue.

Let’s say a convicted mass murderer, CM, uttered the statement “Drunk driving is dangerous even if people think they are doing it “correctly”. Joe Bloke wrote a book recommending that people drive drunk and it is safe if they do it correctly”. Therefore, Joe Bloke is making a dangerous recommendation because there is no evidence that there is any truly safe way to drive while drunk.”

Now let’s say Joe Bloke decides to sue CM for libel and defamation and bases his case on discrediting CM as not a credible source because he is a reprehensible character who was found guilty of mass murder. Will that win Joe Bloke his case? Of course not. To win his case, he would have to prove that at least one of the first two premises was false. If, in fact, Joe Bloke made such a recommendation and if, in fact, drunk driving has been shown to be dangerous even if people think they are doing it “correctly”, then Joe Bloke has no case against CM, no matter how horrible a person CM is.

To carry this analogy further, let’s say that Joe Bloke has a PhD from Yale and is recognized as a world authority on substance abuse and that he has been interviewed by top media on the topic of what he believes to be safe and correct drunk driving. Let’s say he presents this to the court as evidence that he is right and CM is wrong, hence guilty of libel. If you were a juror, would you buy that? I hope not. Either Joe Bloke’s recommendation is based on correct facts or it is not. Either drunk driving is dangerous or it is not.

Let’s say that the hypothetical Joe Bloke tries to argue that the statements made about him are libelous because he never killed anyone with his drunk driving because he knows how to do it correctly. Again, unless CM stated that Joe Bloke killed someone with his drunk driving (which in this hypothetical example, he did not) then Joe Bloke has no case. To win his case, Joe Bloke would have to prove that drunk driving is safe when done as he recommends and/or that the statement he made the recommendations he did were false. If he can’t do that, game over, defendant wins. And this is just one condition that must be proven in a libel case. The plaintiff also has to prove that his reputation was harmed.

Getting back to the initial case, assuming that it gets past the initial hearings (which is also questionable at this stage), Larry Sarner is not on trial for voting machine fraud (something he has never been charged with in the first place, but even if he had it would be irrelevant to this case). The question of whether or not his voting machines worked is also completely irrelevant.

I am not on trial for being a kook, even though my past has been selectively reported to suit their own agenda. For example, stating I was in Scientology but neglecting to mention that I left and fully repudiated the organization over 30 years ago; stating I was involved with TFT but neglecting to mention I left and repudiated it over 6 years ago have since gotten a PhD and am a well known, highly published critic and debunker of pseudoscience who has favorable endorsements from leading people in the field who do not consider me a “kook” although the word is nothing more than an emotional buzzword that has no exact meaning. Even though that is the case, even if I were a “kook” it would not be relevant to the case.

Charly Miller is not on trial for attending Renaissance Festivals (ren fests) or dressing up as a wench, a hobby she has that her detractors are trying to use to discredit her. She is also not on trial for the utterly unproven allegations that were made about her in the past that she was never charged with, much less convicted of. Again, what matters is whether the material on Charly Miller’s website is factually correct. If it is, the plaintiff loses his case, no matter how many ren fests she attended, costumes she wears or what hobbies she may have. Furthermore, it matters not how many bogus and unsubstantiated charges have been leveled at her in the past.

The fact that the anonymous posters are inaccurately misrepresenting my background by using the propaganda tactic of selectively presenting my past and omitting important facts is secondary to the key point being made in this posting. Even if I were a card-carrying Scientologist and tapper who believed in the human energy field (as some of Larry Sarner’s critics apparently do) — even if I believed in Xenu and the tooth fairy, that would not be grounds for a libel case.

There is no getting around it. Ronald Federici has to play by the same rules anyone in a libel case has to play by, which means he is still going to have to prove that false statements of a factual nature were made about him. If he cannot do that, he loses, even if I were to be the most flaming kook ever to hit planet earth. If a so-called kook says, 2+2=4, it is still true.

The real issue here is, are prone, face down restraints dangerous?

Are they dangerous even when done correctly?

Are the recommendations in Federici’s book adequate to ensure they are done correctly?

What does the research reported in the peer reviewed published literature say about the dangers/safety of prone restraints?

Have deaths occurred from prone restraints even when they were correctly applied?

Are prone restraints banned in some states because they are considered dangerous?

Answers to these questions can potentially supply the plaintiffs or defendants with sound basis for their statements — or not. These are questions that would lead to a discussion of the actual issues at hand. It does not matter what the plaintiff’s backgrounds are. The facts that matter are what are important and the proper focus.

To trot out highly selective and distorted presentations of the defendants’ and their associates’ distant past in an attempt to discredit them is to invoke the fallacy of ad hominem argument. To attempt to discredit the credentials of the defendants is to commit the fallacy of argumentum ad verecundiam. There is no law against an unlicensed individual criticizing a licensed individual. On the contrary, licensed individuals are accountable to the public, who has every right to criticize them.

The real issue in this case, if it does come to a trial, is whether the statements made about Federici by the defendants were factually false, maliciously intended and harmed his reputation. If he cannot prove that, he will lose his case, regardless of how much he attempts to discredit the defendants and their associates.

Postscript: The anonymous posters have once again demonstrated this fallacy in response to this blog entry, saying I have “infinite ego” for daring to offer free critical thinking lessons to others. Thus far they have not been able to offer any substantive rebuttal to one word I have written, so all they can do is engage in personal attacks on me and in some instances, bald faced, crazy lies such as the recent lie that I have been arrested and charged with internet harassment when I most certainly have not. People who have the truth on their side, simply do not need to behave in this manner.

  1. Dr. Cathleen Mann permalink

    We should also take into consideration when discussing slander and libel laws that none of us are lawyers and so we are making comments from a layman’s perspective. I might also add that libel and slander have different rules when someone is a celebrity or thought of as a celebrity. For more details, I recommend a careful reading of the case of Jerry Falwell v. Larry Flynt, where the supreme court allowed wide latitude of caricature of Jerry Falwell because he was a celebrity. There is an excellent book on this subject entitled, “Jerry Falwell v. Larry Flynt”.

  2. Good points, Cathleen. I’ve heard that this would apply to anyone considered a public figure. My question would be what would be the criteria for determining who is or is not considered to be a public figure. Is Ronald Federici considered a public figure? How is this determined?

  3. Dr. Cathleen Mann permalink

    Well, I’m not a lawyer, but here goes. Slander and libel are torts, and as such, they must show harm to someone’s reputation, way of earning income, etc. The US laws have opined that celebrities place themselves decisively in the public arena, and, thus, are subject to ridicule and mockery as part of free speech in a democratic society.

    How and when someone is deemed a celebrity is an issue for the court to decide, but the threshold seems quite short. Anyone who puts themselves out in the public arena may meet the qualifications of a celebrity. In this case, I think the more important point to keep in mind is that mockery and ridicule are not per se libelous. They are part of a free society.

  4. It sounds to me like anyone who has gone on a TV program like Dateline could potentially qualify. Is the internet considered a public arena? If so, anyone with a blog or who posts publicly under their name, might be a celebrity.

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