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Brief For Celia Farber Libel Appeal

September 13th, 2012

To Be Argued by Philip A. Byler
New York County Clerk’s Index No 106399/09
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NEW YORK SUPREME COURT
APPELLATE DIVISION – FIRST DEPARTMENT
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CELIA FARBER, Plaintiff-Appellant,

against

RICHARD JEFFERYS, Defendant-Respondent,

and ,KEVIN KURITSKY and JAMES J. MURTAUGH, Defendants.

================================================
BRIEF FOR PLAINTIFF-APPELLANT
================================================
TABLE OF CONTENTS

TABLE OF AUTHORITIES…………………………..iv

PRELIMINARY STATEMENT…………………………… 1

STATEMENT OF QUESTIONS PRESENTED ……………….. 4

STATEMENT OF THE CASE: JUSTICE YORK’S “BACKGROUND”
STATEMENT AND THE RECORD FACTS……………………4

A. Farber Has Been A Well-Respected Journalist Since the 1980’s
Without Incident And Without Retraction By Any Periodical …..5

B. Farber’s Article “Out of Control: AIDS
and the Corruption of Medical Science” ……………..6

C. Defendant Richard Jefferys Has Targeted
Farber For Her Work Since 2006……………………..9

D. The Semmelweiss Award and Jefferys’ Libelous Backlash…11

E. Semmelweiss Hires Clark Baker To Investigate Jefferys’
E-mail Attacks On Farber and Dr. Duesberg ………………………………….13

F. Farber Has Been Damaged By Jefferys’
Attacks, And Her Damages Are Ongoing ……………17

STATEMENT OF THE CASE: PROCEDURAL HISTORY …………19

ARGUMENT ……………………………………. 21

JUSTICE YORK COMMITTED REVERSIBLE ERROR IN
MISAPPLYING IMMUNO v. MOOR-JANKOWSKI AND NOT
APPLYING THE PROPER METHODOLOGY FOR
DISTINGUISHING POTENTIALLY ACTIONABLE FACT
AND NON-ACTIONABLE OPINION WHEN TREATING
AS RHETORIC THE STATEMENT THAT FARBER WAS
A LIAR ENGAGED IN JOURNALISTIC FRAUD ……………………………….21

A.

Justice York Misapplied Immuno A.G. v.Moor-Jankowski……………….22

B.

Justice York Failed To Apply The Proper Method For
Distinguishing Potentially Actionable Fact and Non-Actionable
Opinion When Treating As “Rhetoric” The Statement That
Farber Was A “Liar”…………………25

1. Justice York’s Misapplication Of The Protection
For Rhetorical Hyperbole …………………..25

2 The Proper Method For Distinguishing Potentially
Actionable Fact and Non-Actionable Opinion ……….28

3 Applying The Proper Method For Distinguishing Fact and
Opinion, Jefferys’ Attack E-Mail Calling Farber A “Liar”
Engaged In Journalistic “Fraud” Was A Potentially
Actionable Statement of Fact, Not Rhetorical or Other
Opinion …………………………………..30

a. Consideration Of The Communication As A
Whole, Not In Snippets ………………………30

b. The Language Used: Precise, Not Loose and Figurative…………………………………….31

c. The Impact of the Language Used ………….32

d. The Complained Of Statement Is Capable
Of Being Proven True Or False ……………….34

e.

The Context Of The Complained Of Statement
Was Not Public Debate …………………………………………..34

II. JUSTICE YORK COMMITTED REVERSIBLE ERROR IN NOT
RECOGNIZING AND NOT APPLYING THE RULES ON SUMMARY
JUDGMENT AND DIRECTLY APPLICABLE CASE LAW WHEN
ANALYZING THE RECORD WITH RESPECT TO THE ISSUES OF
“ACTUAL MALICE” AND “GROSS IRRESPONSIBILITY”
WITHOUT THE BENEFIT OF DISCOVERY……………………..36

Justice York Erred In Denying Discovery ………………37

Justice York Erred In Not Recognizing and Not Applying
The Rules Governing Summary Judgment………………………………………40

Justice York Erred In Not Recognizing Directly
Applicable Case Law…………………………………………… 42

Justice York Erred In Not Recognizing The Fact-Checking
Process At Harper’s As Relevant To “Actual Malice” And
“Gross Irresponsibility” ………………………… 43

Justice York Erred In Finding No “Actual Malice” Or “Gross
Irresponsibility” By Relying On Jeffreys’ Professed Reliance On
Scientific And Medical Literature Supportive Of The Hypothesis
That HIV Causes AIDS……………………….. 45

Justice York Erred In Finding No “Actual Malice” Or “Gross
Irresponsibility” By Relying On Jeffreys’ Identification Of
Eight Purported Inaccuracies In Farber’s Writings………………………… 49

Justice York Erred In His Discussion Of The Blood Splattered
Photograph Of Farber And The So Called “Peters Affidavit,”
Wrongly Failing To Recognize Additional Proof Of “Actual
Malice” And “Gross Irresponsibility”………………53

CONCLUSION……………………………………55

CERTIFICATE OF COMPLIANCE WORD COUNT …………….56

TABLE OF AUTHORITIES

Cases

Abrams v. United States, 250 U.S. 616, 630 (1919)(Holmes, J., dissenting) …………1

Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 501 N.E.2d 572,
508 N.Y.S.2d 923 (1986) ……………………….41

Brach v. Congregation Yestev Lev D’Satmar, Inc., 265 A.D.2d 360,
696 N.Y.S.2d 496 (2d Dep’t 1999) ………………..25

Brian v. Richardson, 87 N.Y.2d 46, 660 N.E.2d 1126,
637 N.Y.S.2d 347 (1995) ……………………24, 34

DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104 (2d Cir. 2010) …………………………33

Four Seasons Hotel Ltd. v. Vinnik, 127 A.D.2d 310,
515 N.Y.S.2d 1 (1st Dep’t 1987) …………………38

Galasso v. Saltzman, 42 A.D.2d 310, 839 N.Y.S.2d 731 (1st Dep’t 2007) …………26

Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-340 (1974) ………………………….39, 40

Gonzalez v. Arc Interior Construction, 83 A.D.3d 418,
921 N.Y.S.2d 33 (1st Dep’t 2011) ……………….38-39

Greenbelt Cooperative Ass’n v. Bresler, 398 U.S. 6 (1970) …………………………24, 34

Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657 (1989) …… 4, 16, 42-43, 54

Henderson v. City of New York, 178 A.D.2d 129,
576 N.Y.S.2d 562 (1st Dep’t 1991) ……………40

Herbert v. Lando, 441 U.S. 153 (1979) ……..37

Hustler Magazine v. Falwell, 485 U.S. 46 (1986) ……1

-iv-

Hutchinson v. Proxmire, 443 U.S. 111 (1979) …….39-40

Immuno A.G. v. Moor-Jankowski, 77 N.Y.2d 235, 567 N.E.2d 1270,
566 N.Y.S.2d 906, cert. denied, 500 U.S. 954 (1991) ……2, 4, 20, 21-24,29, 34

Liberman v. Gelstein, 80 N.Y.2d 429, 590 N.Y.S.2d 857,
605 N.E.2d 344 (1992) ………………………..33

Mazzola v. Kelly, 291 A.D.2d 535, 738 N.Y.S.2d 246 (2d Dep’t 2002) ……………….38

Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990) ….2, 24, 27,
28, 29, 33, 36

Millus v. Newsday, Inc., 89 N.Y.2d 840, 675 N.E.2d 461,
652 N.Y.S.2d 726 (1996) ……………………24, 34

Nichols v. Item Publishers, Inc., 309 N.Y. 596,
132 N.E.2d 860 (1956) ……………………….33

OK Petroleum Distrib. Corp. v. Nassau/Suffolk Fuel Oil Corp.,
17 A.D.3d 551, 793 N.Y.S.2d 152 (2d Dep’t 2005) ……..38

Ollman v. Evans, 750 F.2d 970 (D.C Cir. 1984)(en banc),
cert. denied, 471 U.S. 1127 (1985) …….2, 24, 28, 29,
34, 36

Pacamor Bearings, Inc. v British American Dev. Corp., 108 A.D.2d 191,
488 N.Y.S.2d 838 (3rd Dep’t 1985) ………….39

Present v. Avon Products, Inc., 253 A.D.2d 183,
687 N.Y.S.2d 330 (1st Dep’t 1999) …………….27

Rose v. Da ECIB USA, 259 A.D.2d 258,, 686 N.Y.S.2d 19 (1st Dep’t 1999) ………..41

Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494,
601 N.Y.S.2d 49, 618 N.E.2d 82 (1993) ………38, 42

Sandals Resorts International Ltd. v. Google, Inc., 86 A.D.3d 32,
925 N.Y.S.2d 407 (1st Dep’t 2011) ……..26, 28, 29, 31

Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y. 2d 395,
144 N.E.2d 387, 165 N.Y.S.2d 498 (1957) ……..41

Silverster v. American Broadcasting Cos., 839 F.2d 1491 (11th Cir. 1988) ……..39, 40

600 West 115th Street Corp. v. Von Gutfeld, 80 N.Y.2d 130,
603 N.E.2d 930, 589 N.Y.S.2d 825 (1992) …….. 24, 34

Steinhilber v. Alphonse, 68 N.Y.2d 283, 501 N.E.2d 550,
508 N.Y.S.2d 901 (1986) ………………..26, 31

Sweeney v. Prisoners’ Legal Services of New York, Inc., 197 A.D.2d 189,
610 N.Y.S.2d 628 (3d Dep’t 1994) ..4, 16, 43, 54

Thomas H. v. Paul B., 18 N.Y.3d 580, 584, 965 N.E.2d 939,
942 N.Y.S.2d 437 (2012).. ……………..29-30

Versaci v. Richie, 30 A.D.2d 648, 815 N.Y.S.2d 350 (3d Dep’t 2006) ….24-25, 34-35

Winegrad v. New York University Medical Center, 64 N.Y.2d 851,
476 N.E.2d 642, 487 N.Y.S.2d 316 (1985) ……………………………………………..41

Wolston v. Reader’s Digest Association, 443 U.S. 157 (1979) …………………………. 39

Statutes & Rules

New York CPLR 3211(a)(1)…………………………..19-20

New York CPLR 3211(a)(7) ………………………….19-20

New York CPLR 3211(c) ………………………19, 38, 40

New York CPLR 3212 ………………………………20

-vi-

New York CPLR 3212(b) ……………………………..41

New York CPLR 3212(f) …………………………..38, 42

Other Authorities

Restatement of Torts, Second § 566 (1977) …………..28

PRELIMINARY STATEMENT

When Justice Oliver Wendell Holmes wrote about the “marketplace of

ideas” protected by the First Amendment, he did so in dissent in Abrams v. United States, 250 U.S. 616, 630 (1919)(Holmes, J., dissenting); and only Justice Brandeis joined Justice Holmes in dissenting to affirming the convictions and 20-year sentences of four individuals under the Sedition Act for having distributed leaflets critical of then President Wilson’s decision to send troops to Bolshevik Russia. Today, the majority opinion supported by seven justices in Abrams v. United States is forgotten; it is only Justice Holmes’ dissent that is cited and cited often whenever the First Amendment is discussed. See, e.g., Hustler Magazine v. Falwell, 485 U.S. 46 (1986).

Plaintiff-Appellant Celia Farber (“Farber”) brings this appeal to this Court because Justice York committed reversible errors in giving constitutional license (under cover of fostering the oft-cited “marketplace of ideas”) to Defendant-Appellee Richard Jefferys’ (“Jefferys”) false accusations of journalistic fraud against Farber, a journalist who has reported in the tradition of a war reporter (i.e. covering conflict) on the thousands of prominent scientific and medical experts who fall within the “dissident” views surrounding the idea that HIV is a new pathogen that causes AIDS and who has thereby attracted the ire of AIDS activists, such as Jefferys and his

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cohorts who sought to silence the expression of dissident views.

In erroneously categorizing Jefferys’ defamatory e-mail as “protected speech,” Justice York conflated the idea of “robust public debate” with Jefferys’ ongoing campaign to destroy Farber’s reputation as a journalist and spread fear and hysteria to engage others to wage war against Farber, which was intended to silence her and which has even led to threats on Farber’s life. Justice York, in classifying as mere “rhetoric” the accusation that Farber was a “liar” neglected to recognize and apply specific linguistic and contextual analytical factors for distinguishing face and opinion as identified in such cases as Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990); Ollman v. Evans, 750 F.2d 970 (D.C. Cir. 1984)(en banc), cert. denied, 471 U.S. 1127 (1985); and Immuno A.G. v. Moor-Jankowski, 77 N.Y.2d 235, 567 N.E.2d 1270, 566 N.Y.S.2d 906, cert. denied, 500 U.S. 954 (1991). The accusation that Farber was a “liar” was part of a statement that she “for many years” has used journalistic “fraud” that included “altering of quotes from scientific literature” and “false representations from published papers, etc.”; and the accusation was made in an e-mail and not a letter to the editor or op-ed column. (R. 20, 815.)

When deciding on the issues of actual malice and gross irresponsibility, Justice York failed to allow the parties the benefit of full discovery and effectively thumbed his nose at the rules governing summary judgment, never citing and never applying

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those rules but instead making various pronouncements that were at best fact-finding contrary to the rules governing summary judgment and did not reflect a balanced view of the record. (See R. 7-36.)

In concluding that Jefferys was engaged in protected public discourse, Justice York dismissed relevant evidence which tended to raise an issue of fact as to Jefferys’ “actual malice,” and, instead, took Jefferys’ hollow assertions at face value when he claimed to have written his literary genocide in reliance on various papers and articles supporting the hypothesis on HIV/AIDS of Dr. Robert Gallo. Justice York erred in his reliance on Jefferys’ assertion that he quoted from medical journals to show “eight inaccuracies” in Farber’s writings, notwithstanding that the record demonstrated Jefferys’ obvious inability to show any inaccuracy, let alone fraud, on Farber’s part or the lack of a single example of how Farber’s work has ever been challenged for inaccuracy or fraud by any periodical that has published her work. Justice York accorded no weight to Farber’s evidence and concluded that Jefferys was merely wrong or confused or giving his opinion when writing the e-mail that “launched a thousand ships” to destroy Farber’s career. Jefferys’ attack was not an example of the “marketplace of ideas,” but, instead, exhibited the very gross irresponsibility and reckless disregard of the truth that falls outside of the scope of protection under the First Amendment.

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In sum, Justice York’s errors dictate that his Decision/Order be reversed and that the case be ordered to proceed into discovery.

STATEMENT OF QUESTIONS PRESENTED

1. Did Justice York erroneously misapply Immuno A.G. v. Moor-Jankowski and erroneously fail to state and apply the proper methodology for distinguishing “opinion” and “fact” when treating as protected “rhetoric” the accusation that Farber is a “liar” who engaged in journalistic “fraud”?

2. Did Justice York erroneously fail to apply the rules governing summary judgment when discussing the record with respect to actual malice and gross irresponsibility and fail to apply the precedents of Harte-Hanks Communications, Inc. v. Connaughton and Sweeney v. Prisoners’ Legal Services of New York, Inc.?

STATEMENT OF THE CASE: JUSTICE YORK’S
“BACKGROUND” STATEMENT AND THE RECORD FACTS

The statement of facts in Justice York’s Decision/Order is notable for not identifying the specific complained of defamatory statement by Jeffreys until page 14 of the 30 page slip opinion (R. 20) and for prefacing the complained of defamatory language with a lengthy “Background” statement that did not state and did not observe the rules governing summary judgment (R. 7-21; see pp. 40-41 below).

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Farber Has Been A Well-Respected Journalist Since the 1980’s Without Incident And Without Retraction By Any Periodical.

Farber, a veteran magazine journalist, began her work as a print journalist in high school in her native Sweden and continued as a print journalist while attending college in New York, starting to write for the US rock magazine SPIN in 1986. Her first “beat” was AIDS, a subject she reported on between 1986 and 1994. She edited
and frequently wrote SPIN’s AIDS column which she created, called “Words From The Front.” These “columns” often grew into lengthy, investigative feature articles that required global travel, including across Sub-Saharan Africa and across Europe.

In 1987-88, the column featured the second print interview in the U.S. media of virologist Peter Duesberg, allowing him to explain his published contention that retroviruses, including HIV, are harmless. The following month, SPIN published a response from virologist Dr. Robert Gallo, in which Dr. Gallo, in colorful but abusive terms, declared why he felt Dr. Duesberg was wrong and he was right, about HIV being the cause of AIDS. This argument soon bloomed into extensive coverage of the burgeoning “HIV debate” which Plaintiff Farber was assigned to cover assiduously over the coming decade. (R. 807-809.)

Farber, prior to 2006, wrote publications for numerous periodicals, including Rolling Stone, (German) Vogue, Interview, New York Post, New York Press, Salon, The Herald on Sunday (Scotland,) Stop Smiling, Alive, Media Post, as well as numerous online literary and journalistic outlets. She was invited to lecture on journalism around the world, including London, Buenos Aires, Nairobi, Amsterdam, Los Angeles and elsewhere. In 1994, she spoke at the American Association For The Advancement of Science (“AAAS”) on a panel that included Nobel Laureate Dr. Kary Mullis and other distinguished scientists. Her writings were used as course material in several college media and science courses, and she continues to lecture to journalism students to this day. She also wrote scripts for VH-VH-1, BBC radio, Swedish Radio (Sverige’s Radio) and co-produced a documentary film for BBC, in addition to appearing on numerous radio and TV shows, including CNN, The Today Show, Politically Correct with Bill Maher, The Charlie Rose Show, ESPN, and the Keith Olbermann Show on MSNBC. (R. 807-809.)

Since the start of her career in 1986, not a single periodical has ever accused Farber of fraud, lies, or even inaccuracies. (R. 809-810.)

Farber’s Article “Out of Control: AIDS and the Corruption of Medical Science.”

In 2004, then Harper’s editor Lewis H. Lapham commissioned Farber to propose a science story to him. Farber proposed, and Harper’s accepted, that she write an article entitled, “Out of Control: AIDS And The Corruption of Medical Science”, which would cover a spectrum of ills within the global and domestic HIV/AIDS research industry. (R. 809.)

A primary subject of the article, conveyed to Farber by federal whistleblower Dr. Jonathan Fishbein, centered on a drug called Nevirapine, which was diverted from western nations to developing nations for the treatment of HIV in pregnant women.

This global campaign — to introduce Nevirapine in over 34 developing nations — was underway when Farber’s article appeared, and involved the NIH, DAIDS, WHO, numerous AIDS organizations, and even the President of the United States. The article covered the stories of three individuals whose lives were forever altered when they crossed paths with the far from benevolent HIV/AIDS research industry. One was a whistleblower who worked in drug safety at DAIDS, one was a pregnant woman without health insurance in Memphis Tennessee, and one was a German born top level cancer virologist who had found the genetic basis for cancer, but was still being punished by said industries for disputing HIV as a pathogen, as far back as 1987 — his name was Dr. Peter Duesberg. (R. 809, 606-624.)

Farber’s article in Harper’s was developed over a period of nearly two years, and fact-checked for over three months prior to publication. The terms of the fact- checking were that Farber had to supply Harper’s with original source material to confirm each fact and quotation in the article of Harper’s to the complete satisfaction

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and Plaintiff Farber satisfied those terms. Harper’s accorded an unusually long and arduous fact checking period in order to ensure the accuracy of the text. The final published version was an 11,000 word article which detailed the corrupt and repressive science culture emanating from the NIH and centered on the first-hand testimony of NIH whistleblower and Clinical Trials Safety Officer Dr. Jonathan Fishbein. Dr. Fishbein confirmed the accuracy of the sections pertaining to his experience, prior to publication. To illustrate the punitive culture of NIH, Harper’s requested the inclusion of a brief synopsis of the plight of Dr. Duesberg, whose
funding was cut and professional life was blighted following publication of his first dissenting article on HIV in 1987. (R. 618-619.)

“Out of Control: AIDS And The Corruption of Medical Science” was published in Harper’s March of 2006. (R. 606-624, 809-810.) Justice York gives a lengthy description of it in his Decision/Order (R. 15-17) for the purported reason that at the core of the lawsuit are the reactions to the awards received by Farber and Dr. Duesberg as a result of the article (R. 15). Really at the core of this libel suit, however, are the defamatory words published by Jeffreys that accused Farber of engaging in journalistic fraud, which makes critical the fact-checking process of Farber’s article at Harper’s and not something to be mentioned in passing, as Justice York does.

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Despite intense pressure from pharmaceutical industry-funded activist groups, Harper’s maintained, and still maintains, its position that the article it had published lived up to the standards of a carefully fact-checked Harper’s article and found
nothing to correct or withdraw. (R. 810-812.)

Defendant Richard Jefferys Has Targeted Farber For Her Work Since 2006.

C.

Defendant-Respondent Richard Jefferys (“Jefferys”) was and is the Science Director of the Treatment Action Group (“TAG”) (R. 577-578), a spinoff of the AIDS activist group ACT UP (R. 765, 792.) Jeffreys has no formal training in science or medicine. (R. 577, 768.)

TAG holds itself out to the public as an independent AIDS research and policy think tank that fights for better treatment, a vaccine and a cure for AIDS and that works to help people receive life-saving treatment, care and information. TAG is openly, by its own admission and from its inception, funded by pharmaceutical companies profiting from the manufacture and sale of drugs for HIV. TAG has engaged in vicious and relentless attack on anyone who highlights the toxicities of the ARV drugs that are the basis of its business operations in the United States and around the world, particularly the developing world. (R. 764-768, 792-800.) No
mention, however, is made by Justice York of TAG originating in the AIDS activist

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organization ACT UP, of how ACT UP used provocative actions to pressure Government, businesses and individuals to yield to ACT UP’s demands and how as a result of the fallout from ACT UP’s provocative actions, TAG was formed out of ACT UP’s Treatment and Data Committee. (R. 765-768.)

Not long after Farber’s Harper’s article appeared, a document entitled “56 Errors” was made available on the Internet and in other ways. The authors and/or signatories included Jefferys, Dr. Robert Gallo, Nathan Geffen (Treatment Action Campaign), Gregg Gonsalves (Gay Men’s Health Crisis), Dr. Daniel Kuritzkes
(Brigham and Women’s Hospital), Dr. John Moore (Cornell Medical School) and Dr. Jeffrey Safrit (Pediatric AIDS Foundation). (R. 625-659.)

Dr. Gallo lent his name to the document entitled “56 Errors”, which purports to identify errors in the Harpers article by Farber; however, a review of the “56 Errors” document by a group of nine scientists and medical doctors not working in the AIDS industry found “56 Errors” to be an absurdly biased document containing character assassination, and found no significant errors in Farber’s article. More importantly, Harper’s itself carefully reviewed “56 Errors” and concluded that it found no reason to retract or amend anything in Plaintiff Farber’s article. In fact,
Jefferys submitted “56 Errors” to Harper’s for publishing, but Harper’s rejected “56 Errors.” (R. 812, 834-884.)

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Significantly, Dr. Gallo has been the subject of more investigations than any scientist in recent memory. investigations of possible fraud surrounding Gallo’s lab, and the research that led to the publication of his four papers in Science in 1984 that laid the foundation for the hypothesis that he had isolated a new pathogenic retrovirus in his lab and that it was the causative agent in AIDS. After an 18-month investigation conducted by the NIH, as reported in 1991 in the Chicago Tribune, it was found that Dr. Gallo’s 1984 report on the isolation of the “AIDS Virus was … riddled with fabrication, falsification, misleading statements and errors” (Chicago Times, Nov. 6, 1991). A panel that supervised the numerous Gallo investigations–the Richards Panel, comprised of
eminent NAS and Institute of Medicine scientists — concluded that there was a “. . . pattern of behavior on Dr. Gallo’s part that repeatedly misrepresents, suppresses, and distorts data and their interpretation in such a way as to enhance Gallo’s claim to
priority. (Chicago Tribune, May 27, 1992, John Crewdsen, ‘Criminal Inquiry Urged in AIDS, Lab Scandal’).” In 1994, a criminal prosecution of Dr. Gallo was aborted due to the applicable five-year statute of limitations having expired. (R. 829-830.)

D.

The Semmelweiss Award and Jefferys’ Libelous Backlash.

As a result of Farber’s article, on May 8, 2008, the Semmelweis Society International (“Semmelweiss”) in Washington D.C. announced its intent to confer its Between 1990 and 1995 there were five major Clean Hands Award for investigative journalism to Farber and a similar award to Dr. Duesberg as part of “Whistleblower Week in Washington.” (R. 19-20, 812-814.)

Jefferys was incensed by Semmelweiss’ decision; and on May 12, 2008, he sent an e-mail to the general delivery e-mail addresses of “Whistleblower Week in Washington” coordinators and sponsors, including to Walter Fauntroy, the Semmelweiss coordinator of testimony for “Whistleblower Week in Washington,” and to Semmelweiss President Dr. Chalifoux. (R. 794, 805, 815.) Jefferys stated in his email:

It is my understanding that you have accepted Celia Farber and Peter Duesberg to give testimony at your tribunal. These individuals are notwhistleblowers, 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. I can provide many, many examples, including their altering of quotes from the scientific literature, false representations of published papers, etc. They use instances of genuine medical malpractice simply as ammunition to support their erroneous ideas about HIV and AIDS (which Duesberg has said is “caused by a lifestyle that was criminal twenty years ago”). The inclusion of these individuals will, regrettably, discredit and demean your efforts to support the very real issues of recrimination against legitimate whistleblowers. Sincerely, Richard Jefferys (R. 20, 794, 815; emphasis in the original.)

The e-mail was circulated to members of Congress and to the media as part of an e-mail campaign led by Jefferys to pressure officials and organizations to distance themselves from Farber and Dr. Duesberg and to prevent Farber and Duesberg from testifying before congressional committees; but more importantly, the e-mail was sent
to put the final “nail in the coffin” to Farber’s reputation and career — a campaign Jefferys had set out to accomplish as early as 2006. (R. 792-800.)

E. Semmelweiss Hires Clark Baker To Investigate Jeffreys’
E-Mail Attacks On Farber And Dr. Duesberg.

Following the hysteria set in motion by Jefferys, Semmelweiss commissioned one of its own members to investigate whether the claims of Jefferys and his cohorts were valid. Justice York’s “Background” statement goes no further than Jeffreys’ e-mail and “Whistleblower Week in Washington” (see R. 21) and thus does not discuss Baker’s retention by Semmelweiss President Chalifoux and Baker’s investigation in the wake of the Jeffreys’ e-mail (R. 780-804).

According to a submitted report by Clark Baker, formerly of Semmelweiss and now of OMSJ (Office of Scientific and Medical Justice), Baker discovered the premeditated nature of Jefferys’ May 12, 2008 e-mail to Semmelweiss. Jefferys first sounded the alarm to sabotage Farber earlier that day on May 12, 2008, via the Federal AIDS Policy Partnership ListServe, claiming that Semmelweiss had been “conned” into giving Farber the award, and asking for help to thwart it, fast. This was two days before the event. Jefferys had seen a notice on Page Six of the New York Post reporting that Farber would receive the award. In fact, Farber had nothing to do
with the award, apart from receiving a phone call from Dr. Gil Mileikowsky of Semmelweiss that she had received it by unanimous vote, and that she should prepare one short and one longer presentation for the award ceremony in Washington DC in May. (R. 813-814, 790-795.) In an series of emails beginning on May 12, 2008, Jefferys enlisted the help of fellow activists in other states to bombard various high profile Washington D.C. politicians and persons connected to the Award Ceremony, to seek to discredit
Farber’s reputation, deny her right to give two planned presentations, and pressure the presenting organization, Semmelweiss, to rescind her award, after falsely calling
her an “inveterate liar,” who “uses journalistic fraud,” and “misrepresents scientific papers.” (R. 794-799.)

In his May 12, 2008 email to his colleagues, Jefferys identifies himself as Coordinator, Michael Palm Basic Science, Vaccines and Prevention Project, Treatment Action Group, so he was not speaking as an individual, but as an employee of TAG. In this email he calls Farber “an inveterate liar,” and falsely claims she is consistently trying to “persuade” people that HIV is harmless and that they should avoid testing and treatment. This prompted “D.C. Fights Back,” members to join the sabotage campaign, besieging the offices of Congresswoman Sheila Jackson Lee with calls, faxes, and emails attacking Farber. On May 12, 2008, Jefferys sent an email to
the list serve, prompting D.C. Fights Back member Alex Lawson to contact Jackson Lee’s office with letters and phone calls, and promised to “…also try calling Jackson Lee’s office myself.” (R. 794-795.)

In a subsequent email the same day, Jefferys wrote to the group: “If anyone knows anyone on the long list of people on the schedule as participants (e.g. NOW,

ACLU, Congress people including Clinton & Obama) who they could alert about

what the Semmelweis Society is trying to do here, it would be greatly appreciated.”

(R. 796.) What the Semmelweis Society was “trying to do here” was exercise its First

Amendment right to grant a journalism award as it saw fit, in alignment with its

principles of freedom and truth in science, medicine, and journalism. Jeffery’s tone

is revealing: He felt from the outset that what Semmelweis was “trying to do,” was

his to subvert and pervert, just because he himself — having no connection

whatsoever to Semmelweis, The Whistleblower Conference, or any of the participants

— disapproved. Hence, this lawsuit results from dirty politics and well-funded

“activist” organizations seeking to gag and control the media by sheer intimidation

and gross false accusations. These accusations find no corollary inside the media that

commissioned and published Celia Farber’s work — in this case Harper’s. (R. 812.)

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When misdescribing the so-called “Peters Affidavit” (really the Clark Baker

Affidavit), Justice York discounted relevant comments supportive of Farber’s

integrity as indicative of the insincerity of Jefferys’ statements on various websites

and in his May 12, 2008 e-mail. (R. 33-34.) Bizarrely, Justice York ignored Clark

Baker’s testimony on his retention by Semmelweis and his findings showing the

viciousness of the concerted e-mail campaign led by Jefferys aimed at pressuring

officials and organizations to distance themselves from Farber and Duesberg and to

prevent them from testifying before congressional committees and receiving their

awards. (R. 792-800.) Clark Baker’s testimony was very relevant to finding that

Jefferys was grossly irresponsible and acting in reckless disregard of the truth when

accusing Farber of

Communications, Inc. v. Connaughton and Sweeney v. Prisoners Legal Services of

New York, Inc. as the directly applicable precedent.

Furthermore, the Farber Affidavit and Affidavit of Dr. David Rasnick

demonstrated, contrary to Jefferys’ hollow assertions, that there were no such eight

inaccuracies in her writings — that, as Justice York noted, Jefferys had misunderstood

data, countered her accurate assessment of a long term study with a short term study,

inflated the importance of one misplaced word, and truncated Farber’s overall

fairness to the subject matter, in which she depicted both sides of the HIV drug battle

engaging in

journalistic fraud, with Harte-Hanks

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accurately. (R. 29-30, 763-779, 816-826.) While Justice York rationalized away

Farber’s presentation as merely showing that Jefferys was wrong or confused or

giving his opinion (R. 29-30), those rationalizations myopically overlook that

Jefferys’ inability to show that Farber was inaccurate, and his persistence in declaring

that such inaccuracies existed anyway form the epitome of reckless disregard for the

truth (R. 816-826).

F.

Farber Has Been Damaged By Jeffreys’
Attacks, And Her Damages Are Ongoing.

Although Jefferys had already sought to sully Farber’s reputation in 2006 when

he oversaw the dissemination of a manifesto called “56 Errors in Farber Harper’s

article” (which itself was based on distortions and which was rejected by Harper’s),

Jefferys’ May 12, 2012 e-mail was the crescendo of his campaign of defamatory

character assassination against Farber. (R. 20, 815.)

As a result of Jefferys’ widespread dissemination of his May 12, 2008 e-mail

to Semmelweiss, Dr. Duesberg and Plaintiff Farber were dropped from the list of

persons who were to testify and did not in fact testify as had been originally

scheduled.

pharmaceutical funded HIV/AIDS periodical “The Body.” Major newspapers were

also alerted, at least one of which (The Washington Post) contacted Dr. Mileikowsky

This news was immediately published to damaging effect in a

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for comment, but never published its story upon learning that the awards to Plaintiff

Farber and Dr. Duesberg were intact. The Semmelweis Society International did

present the Clean Hands Award to Dr. Duesberg and Plaintiff Farber as announced,

in a private setting, at the end of the conference. (R. 21, 816.)

To date, Jefferys’ attacks (through TAG and otherwise) against Farber have

attracted the ire of AIDS activists who have been so violent against her that they even

erected an attack website to discredit her Harper’s article, (www.aidstruth.org) where,

to this day, remains a published photo of Farber with blood splattered across her face.

(R. 885).

Justice York erred in ignoring Jefferys’ pre-orchestrated campaign, Jefferys’

email trail uncovered by Clark Baker, and carelessly concluded that Jefferys only

submitted his “opinions” in his email to Semmelweiss’ website. The record evidence

reveals that Jefferys’ attacks on Farber have never been about the “marketplace of

ideas” or “public debate”. Instead, Farber’s work enraged Jefferys politically and he

gave himself license to sabotage and torpedo both her reputation and the free will of

the organization, Semmelweiss that had chosen to present the award to her, by

unanimous vote of its Board of Director. Jefferys’ e-mail to Semmelweiss was a

manifestation of the deep-seated Joe McCarthy-type character assassination of Farber

that he had overseen since 2006.

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STATEMENT OF THE CASE: PROCEDURAL HISTORY

Farber brought this action with a Complaint asserting libel causes of action against Jefferys and two other named defendants not involved in this motion. The Complaint alleges that the statements in the Jeffreys May 12, 2008 e-mail quoted above (pp. 23-24) are libelous because they falsely accused her of being a liar who has committed journalistic fraud by altering quotes from scientific literature and falsely representing published works. The Complaint further alleges that these statements are false and are defamatory per se injurious to her reputation as a journalist. (R. 21, 39-59.)

In response to the Complaint, Jefferys brought a pre-Answer motion to dismiss

under CPLR 3211(a)(1) & (7), based on an affirmation of an attorney that attached

the Complaint and also included a large variety of documents such as articles. (R. 60-

249, 534-550.) Farber opposed the motion. (R. 250-533, 551-569.)

In an Interim Decision/Order dated November 3, 2010, Justice York ruled that

Jefferys’ motion to dismiss was not based on documentary evidence within the

meaning of CPLR 3211(a)(1). Justice York explained that “documentary evidence”

within the meaning of CPLR 3211(a)(1) meant judicial records and records of out-of-

court transactions such mortgages and deeds, not the plethora of documents relied

upon by Jefferys. Justice York then invoked CPLR 3211(c) to convert the Jefferys’

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motion to dismiss under CPLR 3211(a)(1) & (7) to a motion for summary judgment

under CPLR 3212 and gave the parties an opportunity to submit supplemental papers.

(R. 570-576.)

Defendant Jeffery submitted: (i) a supplemental Affidavit by Jefferys with

exhibits (R. 577-753); (ii) a Supplemental Memorandum of Law (R. 753.1-753.14);

and (iii) a Supplemental Reply Memorandum of Law (R. 1180-1198). Farber

submitted: (i) a supplemental Affidavit by herself with exhibits (R. 807-1132); (ii) an

Affidavit by David Rasnick, Ph.D. (R. 763-779); (iii) an Affidavit by Clark Baker

with exhibit (R. 780-806); (iv) a supplemental attorney Affirmation for the procedural

history of this case and a note about Immuno A.G. v. Moor-Jankowski (R. 754-762);

and (v) a Memorandum of Law (R. 1133-1179). There was no discovery; the

summary judgment motion was decided by Justice York in his Decision/Order

without document production and depositions. (R. 34-35.)

Justice York, after his “Background” statement discussed above, ruled that: (i)

while defamation is the making of a false statement which tends to expose the

plaintiff to public contempt, ridicule, aversion or disgrace, defamation claims are

subject to constitutional restrictions if the plaintiff is a public official or public figure;

(ii) Farber was a limited purpose public figure and thus needed to prove, with clear

and convincing evidence, “actual malice” (knowledge of falsity false or reckless

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disregard of whether false or not); (iii) a statement related to an issue of public

concern requires under New York law proof of “gross irresponsibility”; (iv) Farber

cannot raise an issue of fact as to “actual malice” or “gross irresponsibility”; (v)

letters to the editor as in Immuno A.G. v. Moor-Jankowski have a public forum

function closely related to marketplace of ideas and e-mails have “similar values” to

letters to the editor; (vi) Jeffrerys’ use of the word “liar” was constitutionally

protected rhetoric; and (vii) discovery was not necessary, as the parties had provided

ample evidentiary support.

Decision/Order will be discussed below in the Argument section of this Brief.

(R. 21-36.)

The specifics in Justice York’s

ARGUMENT

Before this Court is Farber’s appeal from Justice York’s Decision/Order. For

the reasons that follow, this Court should reverse the grant of summary judgment to

Jeffreys and reinstate the libel claim against Jeffreys.

I.

JUSTICE YORK COMMITTED REVERSIBLE ERROR IN
MISAPPLYING IMMUNO v. MOOR-JANKOWSKI AND NOT APPLYING
THE PROPER METHODOLOGY FOR DISTINGUISHING
POTENTIALLY ACTIONABLE FACT AND NON-ACTIONABLE
OPINION WHEN TREATING AS RHETORIC THE STATEMENT
THAT FARBER WAS A LIAR ENGAGED IN JOURNALISTIC FRAUD

The first area of reversible error committed by Justice York was in (A)

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misapplying Immuno A.G. v. Moor-Jankowski, 77 N.Y.2d 235, 567 N.E.2d 1270, 566

N.Y.S.2d 906, to mistreat Jeffreys’ e-mail sent to an e-mail service as having “similar

values” to a letter to the editor and (B) failing to apply the proper methodology for

distinguishing potentially actionable fact from constitutionally protected opinion

when treating as non-actionable rhetoric the accusation that Farber was a “liar.”

When properly analyzed under the law, Jeffreys’ e-mailed accusation that Farber was

a “liar” who “for many years have used fraud to argue for” Duesberg’s theory that

HIV does not cause AIDS, including “their altering of quotes from scientific

literature” and “false representations from published papers” was, considered as a

whole, a potentially actionable factual statement subject to the applicable standard of

culpable falsity.

A.

Justice York Misapplied Immuno A.G. v. Moor-Jankowski.

Justice York invoked Immuno A.G. v. Moor-Jankowski to note that letters to

the editor have public forum function closely related to the marketplace of ideas and

to treat Jeffreys’ May 12, 2008 e-mail as having “similar values” to a letter to the

editor of a public newspaper or journal where here: (i) public discourse about the

Clean Hands Award was invited; (ii) issues discussed in Farber’s “Out of Control”

article published by Harper’s were of public concern; and (iii) Jeffreys “simply”

participated in the discourse. (R. 26.) This, however, is an entirely misconceived

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analysis legally and factually.

The record does not show that public discourse about the Clean Hands Award

was invited, as if the coordinators of “Whistleblower Week in Washington” asked

the public to comment on whether Farber deserved the Clean Hands Award. The

planned event was, quite differently, about hearing testimony by various individuals

with experiences in whistleblowing and retaliation against whistleblowers. (R. 814.)

AIDS activists took it upon themselves to protest the Semmelweiss awards to Farber

and Duesberg. (R. 794-800, 814.)

What was used by Jeffreys and others — the e-mail service for the

“Whistleblower Week in Washington” coordinators and sponsors — was not a

publishing medium for the public discussion of issues, in contrast to the formats

routinely used for expression of opinion: the letter to the editor in Immuno v. Moor-

Jankowski; the Washington Post op-ed column in Ollman v. Evans; the New York

Times op-ed column in Brian v. Richardson, 87 N.Y.2d 46, 660 N.E.2d 1126, 637

N.Y.S.2d 347 (1995); the Community Board public hearing in 600 West 115th Street

Corp. v. Von Gutfeld ,80 N.Y.2d 130, 603 N.E.2d 930, 589 N.Y.S.2d 825 (1992); the

newspaper editorial in Millus v. Newsday, Inc. 89 N.Y.2d 840, 675 N.E.2d 461, 652

N.Y.S.2d 726 (1996); the City Council public hearing in Greenbelt Cooperative Ass’n

v. Bresler 398 U.S. 6 (1970); and the public internet forum in Versaci v. Richie 30

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A.D.2d 648, 815 N.Y.S.2d 350 (3d Dep’t 2006). The e-mail service for the

“Whistleblower Week in Washington” was for coordinating the event and in no way

served “similar values” as letters to the editor, op-ed columns, public hearings,

internet forums and editorials that provide a recognized publishing medium for the

expression of opinion in the marketplace of ideas.

There is, of course, no dispute about the point that the issues discussed in

Farber’s “Out of Control” article published by Harper’s are of public concern. But

that point does not justify and immunize a false, defamatory accusation of journalistic

fraud. Indeed, the error of Justice York’s analysis in this respect can be said to what

triggered the U.S. Supreme Court to reinstate the libel suit in Milkovich v. Lorain

Journal Co., 497 U.S. 1 (1990), where in a sports column the plaintiff wrestling

coach was accused of lying under oath to Ohio authorities, which would have been

perjury. At oral argument in Milkovich, Justice Scalia asked the attorney for the

defendant newspaper whether in the context of a public issue, an editorial could

accuse someone of being a child predator and have it constitutionally privileged on

the ground it was opinion; and the U.S. Supreme Court majority (7-2) ruled that the

complained of accusation was actionable, that “context” did not bestow a privilege

on what was a defamatory accusation against Coach Milkovich.

It was thus a disturbing whitewash for Justice York to write that Jeffreys was

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simply engaged in a public discourse about whistleblowing awards given to Farber

and Duesberg.

bombarding the e-mail service for the “Whistleblower Week in Washington”

coordinators and sponsors with attack e-mails aimed at stopping Farber and Duesberg

from testifying to congressional committees, which in turn caused Semmelweiss to

hire investigator Baker to investigate and report on the misuse of an e-mail service.

(R. 792-800.)

Justice York Failed To Apply The Proper Method For Distinguishing
Potentially Actionable Fact and Non-Actionable Opinion When
Treating As “Rhetoric” The Statement That Farber Was A “Liar.”

B.

(R. 26.) Jeffreys and other AIDS activists were, differently,

Justice York’s Decision/Order erred in taking out the snippet of the word “liar”

from the complained of e-mail and concluding that it was protected, non-actionable

rhetorical hyperbole based solely on the context of a heated public debate.

1.

Justice York’s Misapplication Of The
Protection Of Rhetorical Hyperbole.

Justice York first acknowledged that it is one thing to say Farber spreads

inaccurate information; it is another to call Farber a “liar,” citing Brach v.

Congregation Yestev Lev D’Satmar, Inc., 265 A.D.2d 360, 696 N.Y.S.2d 496 (2d

Dep’t 1999), in which the Second Department held that the accusation that “lies and

deceit” were used to prevail in a lawsuit was actionable “mixed opinion.” (R. 31.)

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Justice York then noted that Jeffreys has argued that greater leeway is given

to matters of public concern and calling someone “liar” and “fraud” are non-

actionable opinion in context of heated public debate. Justice York states: “[a]fter

careful consideration,” Justice York “agrees with defendant Jeffreys.” (R. 30-31.)

Justice York defended that conclusion citing to case law in which seeming statements

of fact were held to be non-actionable in the context of a heated public debate was

held to be non-actionable opinion. Steinhilber v. Alphonse, 68 N.Y.2d 283, 501

N.E.2d 550, 508 N.Y.S.2d 901 (1986)(“scab” in labor dispute”); Galasso v. Saltzman,

42 A.D.2d 310, 839 N.Y.S.2d 731 (1st Dep’t 2007)(“criminal” in slander case in a

property dispute in beach community).

In this connection, Justice York also cited to Sandals Resorts International Ltd.

v. Google, Inc., 86 A.D.3d 32, 925 N.Y.S.2d 407 (1st Dep’t 2011), for relying on

Steinhilber v. Alphonse. (R. 31.) This Court’s analysis in Sandals Resorts

International Ltd. v. Google, Inc., however, did not look solely to the social context

in that case, but rather, relied on a number of factors. Justice York acknowledged that

Courts do consider all “relevant factors,” but then instead of identifying those factors

and applying them, returned to relying on context alone to decide the treatment of the

word “liar” in this case as non-actionable rhetoric. Justice York cited to case law

treating the word “liar” as rhetorical hyperbole and asserted that Jeffreys and Farber

-26-

make heated statements about each other, such that what is in Jeffreys’ May 12, 2008

e-mail was typical of what went on between traditional AIDS community and HIV

dissenters. (R. 32-33.)

There are four problems with Justice York’s Decision/Order at this point.

First, the record does not support the statement that Jeffreys’ May 12, 2008 e-

mail was typical of what went on between the traditional AIDS community and HIV

dissenters. It was typical of what AIDS activists wrote given what Baker found (R.

792-800), but the record does not show that “HIV dissenters” responded equally in

kind and indeed Baker observed how polite and pleasant Farber and Duesberg were

in stark contrast to the rage of their attackers (R. 783, 787).

Second, the lead case cited by Justice York for treating calling someone a “liar”

as rhetoric, Present v. Avon Products, Inc., 253 A.D.2d 183, 687 N.Y.S.2d 330 (1st

Dep’t 1999), does not support Justice York, as that case concerned a defamation

claim based on reports to the police that had the protection of a qualified privilege for

reports to governmental authorities.

Third, Justice York’s decision in allowing context alone to provide protection

to an accusation that a person is a “liar” is contrary to Milkovich.

Fourth, Justice York’s decision does not employ the proper method for

distinguishing actionable fact and non-actionable opinion, as discussed next.

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2.

The Proper Method For Distinguishing Potentially
Actionable Fact And Non-Actionable Opinion.

Justice York, by relying on the social context of the complained of statement

with but an offhand, unspecific reference to Courts considering all relevant factors,

failed to apply the proper method for distinguishing actionable fact and non-

actionable opinion, which was discussed by this Court in Sandals Resorts

International Ltd. v. Google, Inc., 86 A.D.3d at 39-40, 925 N.Y.S.2d at 412, but

which has its underpinnings tracing back to (i) the “pure opinion” – “mixed opinion”

categories stated in the 1977 Second Restatement of Torts, (ii) Ollman v. Evans, 750

F.2d 970 (1985), and (iii) Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990).

In analyzing an op-ed column, the Court in Ollman v. Evans, 750 F.2d 970

developed a widely followed four-part test: (i) the words in the complained of

statement as commonly understood; (ii) whether the statement was subject to

verification; (iii) the full context of the statement; and (iv) the broader social setting.

750 F.2d at 979-984; see Sandals Resorts International Ltd. v. Google, Inc., 86

A.D.3d at 39-40, 925 N.Y.S.2d at 412.

A few years later, the U.S. Supreme Court declined to apply the Ollman v.

Evans test in Milkovich v. Lorain Journal Co., but instead considered (i) the clear

impact of the language, (ii) the non-use of loose and figurative language, (iii) the

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tenor of the complained of statement and (iv) whether the statement was susceptible

of being proven true or false, in order to identify a potentially actionable statement.

Using this approach, the U.S. Supreme Court reversed dismissal of the defamation

action. See Sandals Resorts International Ltd. v. Google, Inc., 86 A.D.3d at 40, 925

N.Y.S.2d at 412.

A case decided shortly after Milkovich and involving a letter to the editor was

Immuno A.G. v. Moor-Jankowski. There, the New York Court of Appeals ruled that

a reasonable reader would have understood the complained of letter to the editor as

communicating opinion. The Court first applied the Milkovich analysis to determine

that the letter to the editor did not contain provably false defamatory statements of

fact, but then under the New York State Constitution’s free speech clause, adhered

to an Ollman-type fact-opinion distinction as a preferred method of analysis to hold

and thereby considered the publishing context of a letter to the editor and the broader

social context in ruling that the complained of letter to the editor was constitutionally

protected opinion. See Sandals Resorts International Ltd. v. Google, Inc., 86 A.D.3d

at 40, 925 N.Y.S.2d at 412.

Thus, the law for distinguishing actionable “fact” and protected

“opinion” requires a consideration of a mixture of Ollman, Immuno and Milkovich

type factors. The New York Court of Appeals reiterated such factors in its recent

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decision in Thomas H. v. Paul B., 18 N.Y.3d 580, 584, 965 N.E.2d 939, 942 N.Y.S.2d

437 (2012) (internal citations omitted):

This is a task that courts must perform by examining three factors: (1)
whether the allegedly defamatory words have a “precise meaning” that
is “readily understood”; (2) whether the statement can be proven as true
or false; and (3) “whether either the full context of the communication
in which the statement appears or the broader social context and
surrounding circumstances are such as to signal . . . readers or listeners
that what is being read or heard is likely to be opinion, not fact”.

What the law does not permit, which is what Justice York does, is to fail to apply

expressly that multi-factor analysis.

3.

Applying The Proper Method For Distinguishing Fact and
Opinion, Jefferys’ Attack E-Mail Calling Farber A “Liar”
Engaged In Journalistic “Fraud” Was A Potentially Actionable
Statement of Fact, Not Rhetorical or Other Opinion.

Applying the proper method for distinguishing fact and opinion, a reasonable

reader would have concluded that the use of the word “liar” in Jefferys’ e-mail,

considered as a whole, was part of an actionable statement of fact.

a.

Consideration Of The Communication As A
Whole, Not In Snippets.

Justice York erred in taking out the snippet of the word “liar” and treating it

separately from the e-mail as a whole. Here, the word “liar” was used in connection

with what was a factual charge of journalistic fraud to add sting to it: “they [Farber

and Duesberg] are simply liars who for many years have used fraud to argue for

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Duesberg’s long-discredited theory that drug use and malnutrition — not HIV — cause

AIDS. I can provide many, many examples, including their altering of quotes from

the scientific literature, false representations of published papers, etc..” (R. 20, 794,

815; emphasis in the original.) Here, to invoke the “pure opinion”-“mixed opinion”

formula recognized in Steinhilber and Sandals Resorts, if one must, the use of “liar”

in the Jefferys’ e-mail was “mixed opinion.”

b.

The Language Used: Precise, Not Loose and Figurative.

Justice York erred in not considering the complained of language used in the

e-mail. The language accusing Farber of being a “liar” who has used “fraud,”

including “altering of quotes from scientific literature,” making “false

representations from published papers,” is not loose and figurative language, but has

a precise meaning. Jefferys asserts that he can “provide many, many examples,

including their [Farber and Duesberg] “altering of quotes from the scientific

literature, false representations of scientific papers, etc.” He does not say: “I consider

her a liar,” but paints a picture of her “lies” and “fraud,” being advanced, well known,

“many, many” and systemic. Jefferys makes it sound like “everybody knows” this

about Farber, and that it’s part of the well-accepted record about her work. Thus, it

can’t be “opinion,” for the following reason: Jefferys invokes an unsubstantiated

history and body of putative lies from Farber and “fraud,” that he claims has gone

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unnoticed by her journalistic outlets for “many years.”

In fact, in the public record, all severe criticism of Farber emanates from one

source: Jefferys himself. Attacks on Farber to be found on the Internet begin in

earnest in 2006, i.e. post-Jefferys, post “56 Errors.” She began writing for magazines

in 1986/87. Attacks on the veracity and integrity of her work that are now lodged at

all anti-“denialist” websites, Wikipedia and so forth, begin in 2006 and reference one

source: Richard Jefferys’ “56 Errors in Farber Harper’s Article” document, which he

obtained other activists and AIDS researchers (including one, Robert Gallo, who

himself has been found guilty of scientific fraud and misconduct) to aid in. Is it likely

that a journalist has perpetuated a systemic fraud for “many many” years when that

journalist has never once been noted or corrected by any periodical that has published

her work? We think not.

c.

The Impact of the Language Used.

Justice York erred in not considering the impact of the complained of language

used in the e-mail. A reasonable reader would understand that Farber was being

accused of specific journalistic bad acts in Jefferys’ e-mail accusing Farber of being

a “liar” who uses journalistic “fraud” such as “altering of quotes from scientific

literature” and making “false representations from published papers.” In fact, Jefferys

put in italics the key words of the e-mail that deliver the general impact that factual

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allegations, all put in italics, are being leveled by Jefferys. See Milkovich v. Lorain

Journal Co., 497 U.S. 1 (one cannot make “opinion,” and not fact, the statement that

a person is a liar by adding “in my opinion”).

Jefferys’ e-mail contained willful statements that were calculated to seriously

harm Farber’s career and impugn Farber’s honesty, trustworthiness, dependability, and

professional fitness and abilities as a journalist by falsely charging her with conduct

that would (and did) injure her in her trade or business. Nichols v. Item Publishers,

Inc., 309 N.Y. 596, 601-602, 132 N.E.2d 860, 862 (1956). On its face, Jefferys’ e-

mail demonstrates his intent to disparage Farber in the way of her office, profession,

or trade. As aptly stated by the Second Circuit of the United States Court of Appeals:

The complaint describes statements that, “if true, would tend to prove
[DiFolco] unfit to continue [her] calling.” Id. (internal quotation
marks and citations omitted). The complaint sets forth the necessary
elements to make out a claim for defamation in New York, including
the element of malice.

DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 114 (2d Cir. 2010), citing Liberman

v. Gelstein, 80 N.Y.2d 429, 590 N.Y.S.2d 857, 605 N.E.2d 344, 349-50 (1992).

Akin to accusations that a doctor has committed malpractice for many years

and that the accuser could “prove it”, Jefferys’ statements that Farber was a “liar”,

who “used fraud”, guilty of “altering quotes” and making “false representations”, and

that Jefferys “can provide many, many examples” of same was calculated, not to

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engender “public debate”, but rather to decimate Farber’s career of journalism, which

is so obviously dependent on accuracy and credibility, just as much as a doctor’s

career is so obviously dependent on sound judgment and care. Justice York gravely

dismissed the impact of Jefferys’ e-mail (the death knell of Farber’s career) as

pertinent to a determination of actionable fact.

d.

The Complained Of Statement Is Capable
Of Being Proven True Or False.

Justice York erred in not considering that it can be proven true or false whether

a person has engaged in constant lying in connection with journalistic fraud that

includes “altering of quotes from scientific literature” and made “false

representations from published papers.” Again, Jefferys asserts that he can provide

“many, many examples” to support his accusation, which means it is provable or not.

e.

The Context Of The Complained Of Statement
Was Not Public Debate.

Justice York erred in treating as similar an e-mail service with formats

routinely used for expression of opinion: Ollman v. Evans (Washington Post op-ed

column); Immuno v. Moor-Jankowski (letter to the editor); Brian v. Richardson (New

York Times op-ed column); 600 West 115th Street Corp. v. Von Gutfeld (Community

Board public hearing); Millus v. Newsday, Inc. (newspaper editorial); Greenbelt

Cooperative Ass’n v. Bresler (city council public hearing); Versaci v. Richie (public

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internet forum). As noted above, the publishing context of the complained of

statements here was certainly not one in a recognized public forum for public

discussion of issues and expression of opinion. To the contrary, an e-mail service for

“Whistleblower Week in Washington” coordinators was for coordinating an event.

That there is a larger scientific debate over the causes of AIDS only accentuates

the tenor of the complained of statement here as factual. A public argument was not

being set forth discussing the evidence as to AIDS, but quite differently, an e-mail

was sent around accusing Farber of being a “liar” engaged in journalistic “fraud” that

included “altering of quotes from scientific literature” and making “false

representations from published papers.” Jefferys cannot claim the need to immunize

his words for the protection of a robust public debate; he was not engaged in such

debate; to the contrary, Jefferys was acting to cripple public debate about the cause

of AIDS. (R. 799.)

An invitation to Farber to stand behind her claims as a politician would on the

stage of a political debate; a letter to the editor of Harper’s outlining his disagreement

with Farber’s statements; or even an email to Semmelweiss Society International

expressing his disapproval of its decision to bestow the “Clean Hands Award” to

Farber because he did not agree with her positions — those are perfect examples of

constitutionally protected opinion for the purpose of robust public debate.

The

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evidence presented by Farber in her motion papers, which was categorically

dismissed by Justice York, presented an issue of fact as to whether Jefferys actually

believed himself to be participating in robust public debate or whether Jefferys

intended to silence Farber at any and all costs, including uttering lies about her life’s

work as a means of literary genocide to Farber’s career simply because she did not

subscribe to his orthodoxy.

Even if the context of Jefferys’ email was properly characterized as one of

“public debate” by virtue of the fact that the cause of and treatment for AIDS is a

“matter of public concern”, the seminal cases certainly do not give Jefferys’ the

license to use the First Amendment as a sword and a shield. See Ollman v. Evans;

Milkovich v. Lorain Journal Co..

II.

JUSTICE YORK COMMITTED REVERSIBLE ERROR IN NOT
RECOGNIZING AND NOT APPLYING THE RULES ON SUMMARY
JUDGMENT AND DIRECTLY APPLICABLE CASE LAW WHEN
ANALYZING THE RECORD WITH RESPECT TO THE
ISSUES OF “ACTUAL MALICE” AND “GROSS
IRRESPONSIBILITY” WITHOUT THE BENEFIT OF DISCOVERY

The second area of reversible error committed by Justice York was in not

recognizing and not applying the rules on summary judgment with respect to proof

of “actual malice” and “gross irresponsibility” and in denying discovery. (R. 27-30,

-36-

33-34.) Justice York ruled that Farber was required to prove that Jefferys defamed

her with “actual malice” and “gross irresponsibility” because Farber was a limited

purpose public figure and the giving of a whistleblowing award to Farber was a

matter of public concern. (R. 22-27.) Where Justice York erred in numerous respects

was in also ruling that Farber could not prove “actual malice” and “gross

irresponsibility” and that discovery was unnecessary. (R. 27-30, 33-34.)

Justice York Erred In Denying Discovery.

A.

As a preliminary point, Justice York erred in denying discovery once it was

ruled that Farber was a limited purpose public figure and “actual malice” was at

issue. In Herbert v. Lando, 441 U.S. 153, 160-161 (1979), the U.S. Supreme Court

held that discovery required because state of mind evidence was needed for actual

malice inquiry and that while objective evidence could be basis for an inference of

“actual malice,” there was a right to inquire into the defendant’s subjective state of

mind. That, as Justice York noted (R. 35), the parties made “ample” evidentiary

submissions was beside the point. The nature of the “actual malice” inquiry is such

that the “state of mind” of the defendant is at issue; and without at least a deposition,

a libel plaintiff needing to prove “actual malice” is unfairly hampered in meeting that

burden.

Justice York was also not supported in precluding discovery in this case by

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Four Seasons Hotel Ltd. v. Vinnik, 127 A.D.2d 310, 515 N.Y.S.2d 1 (1st Dep’t 1987).

In that contract action, this Court held that it was premature to consider summary

judgment under CPLR 3211(c). The availability of converting a motion to dismiss

into a summary judgment motion under CPLR 3211(c) does not mean that discovery

can be dispensed with in a particular case. Given that this is a libel case in which

“actual malice” is in issue and given Baker’s investigation (see R. 792-800), this is

a case where discovery really is in order, and summary judgment should be denied as

premature where Farber has not had an adequate opportunity to conduct discovery

into issues within the knowledge of the moving party. See CPLR 3212(f); Ross v.

Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 506, 601 N.Y.S.2d 49, 618 N.E.2d

82 (1993); OK Petroleum Distrib. Corp. v. Nassau/Suffolk Fuel Oil Corp., 17 A.D.3d

551, 793 N.Y.S.2d 152 (2d Dep’t 2005); Mazzola v. Kelly, 291 A.D.2d 535, 738

N.Y.S.2d 246 (2d Dep’t 2002).

In light of Jefferys’ assertion that he relied on “numerous reliable sources”

when sending his e-mail to Semmelweiss, and the fact that Farber’s Affidavit

demonstrated how such reliance was not at all supported by the record evidence, a

triable issue of fact was raised as to Jefferys’ intent, which required additional

discovery, including the depositions of Jefferys and other nonparty witnesses. See

Gonzalez v. Arc Interior Construction, 83 A.D.3d 418, 419, 921 N.Y.S.2d 33 (1st

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Dep’t 2011); See also Pacamor Bearings, Inc. v British American Dev. Corp., 108

A.D.2d 191, 193, 488 N.Y.S.2d 838 (3rd Dep’t 1985) (citing the need for additional

facts to determine the intent of the parties, the court denied summary judgment).

It may be questioned whether Farber is a “limited purpose public figure,” as

Justice York bases it on such facts as that Farber is a journalist who has covered

AIDS (and many, ,many other cultural events, artists, scientists, etc) for various

publications since the 1980s and that on a website attacking “HIV

dissenters,” Farber’s picture was shown splattered with blood, reflecting, says Justice

York, Farber’s celebrity status to AIDS activists. (R. 24.) U.S. Supreme Court law

is that “[t]he private individual is not automatically transformed into a public figure

just be becoming involved in or associated with a matter that attracts public

attention.” Wolston v. Reader’s Digest Association, 443 U.S. 157, 167 (1979);

Hutchinson v. Proxmire, 443 U.S. 111, 135 (1979); Silverster v. American

Broadcasting Cos., 839 F.2d 1491, 1494 (11th Cir. 1988). Rather, individuals are

treated as “limited purpose public figures” because they usually have greater access

to the media which gives them “a more realistic opportunity to counteract false

statements than private individuals normally enjoy,” Gertz v. Robert Welch, Inc., 418

U.S. at 344; Hutchinson v. Proxmire, 443 U.S. at 136, and because “public figures .

. . voluntarily expose themselves to increased risk of injury from defamatory

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falsehoods concerning them” as they “invite attention and comment.” Gertz v. Robert

Welch, Inc., 418 U.S. at 345; Silverster v. American Broadcasting Cos., 839 F.2d at

1494. These U.S. Supreme Court criteria were not recognized by Justice York and

applying them, the record did not clearly establish that Farber was a “limited purpose

public figure.” But once Justice York made the decision that Farber had the burden,

as a limited purpose public figure, to prove “actual malice,” the grant of summary

judgment without discovery was error.

Justice York Erred In Not Recognizing and Not
Applying The Rules Governing Summary Judgment.

B.

Justice York erred further by not recognizing and not applying the rules

governing summary judgment. Once Justice York invoked CPLR 3211(c) to convert

Jefferys’ pre-Answer motion to dismiss into one for summary judgment, Justice York

had to abide by the rules governing summary judgment, which he did not do.

Instead of giving Farber the benefit of every favorable inference that may be

drawn from the record, Henderson v. City of New York, 178 A.D.2d 129, 576

N.Y.S.2d 562 (1st Dep’t 1991), Justice York interpreted the evidence in the light most

favorable to Jefferys by crediting truth to Jefferys’ assertions that he based his e-mail

on “articles from prestigious publications in the field.” (R. 29.)

Even if Jefferys had met his initial burden, the Farber Affidavit and Baker

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Affidavit (erroneously referred to in the Decision as the “Peters Affidavit”)

demonstrated that there were genuine issues of material fact as to Jefferys’ actual

malice, which should have precluded Jefferys’ entitlement to judgment as a matter of

law, as the grant of summary judgment requires that there be no genuine issue of

material fact and that the undisputed facts establish that a party is entitled to judgment

as a matter of law. Winegrad v. New York University Medical Center, 64 N.Y.2d 851,

853, 476 N.E.2d 642, 643-644, 487 N.Y.S.2d 316, 317-318 (1985); Alvarez v.

Prospect Hosp., 68 N.Y.2d 320, 324, 501 N.E.2d 572, 574, 508 N.Y.S.2d 923, 925

(1986); Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y. 2d 395, 404, 144

N.E.2d 387, 392, 165 N.Y.S.2d 498, 505 (1957); CPLR 3212(b).

Furthermore, Justice York’s treatment of the record with respect to the

“Background” of the case discussed above and with respect to “actual malice” and

“gross irresponsibility” discussed below was defined by impermissible issue

determination, Rose v. Da ECIB USA, 259 A.D.2d 258, 259, 686 N.Y.S.2d 19, 21(1st

Dep’t 1999), interpretation of evidence that treated the evidence in the light most

favorable to Jefferys, misstatement of the record and ignoring or glossing over

portions of the record that would preclude the granting of summary judgment.

Thus, Justice York committed reversible error in summarily dismissing the

action against Jefferys without providing Farber an adequate opportunity to conduct

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discovery and depositions to uncover Jefferys’ intent in publishing his May 12, 2006

e-mail, since those are issues within the knowledge of the moving party (Jefferys).

See CPLR 3212(f); Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 506, 601

N.Y.S.2d 49, 618 N.E.2d 82.

Justice York Erred In Not Recognizing Directly Applicable Case Law.

C.

Justice York additionally erred in not recognizing directly applicable case law

on the issue of “actual malice.” Given Justice York’s treatment of the case as one in

which there was a debate between a “traditional AIDS community” and “HIV

dissenters,” two cases should have been applied, but were not even recognized.

In Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. at 689-693,

the U.S. Supreme Court ruled that evidence sustained a finding of “actual malice” in

that defamation action, which has been brought by a losing candidate for judge of

municipal court against a newspaper. During the campaign for the judgeship, the

newspaper reported charges made by a person involved in a bribery scandal that the

libel plaintiff judicial candidate Connaughton was a liar, an extortionist, and an

unethical opportunist who was waging deceitful and dirty campaign. The bribery

scandal had in fact been exposed by the libel plaintiff candidate Connaughton, and

the false charges injured him in his profession. The U.S. Supreme Court ruled that

the evidence was sufficient to find “actual malice” where defendant newspaper was

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strongly prejudiced against the libel plaintiff candidate Connaughton and knew that

there was a serious credibility problem presented by the published charges.

In Sweeney v. Prisoners’ Legal Services of New York, Inc., 197 A.D.2d at 193,

610 N.Y.S.2d at 631, the Appellate Division-Third Department found “actual malice”

because “the record clearly indicates that defendants did not care about the truth

because it did not serve their purpose. From the evidence at trial, the jury was

entitled to infer that defendants were purposefully avoiding the truth in order to

advance their cause. . . .”

Justice York Erred In Not Recognizing The Fact-Checking
Process At Harper’s As Relevant To “Actual Malice” And
“Gross Irresponsibility.”

D.

Justice York erred in not recognizing the fact-checking process at Harper’s as

relevant to “actual malice” and “gross irresponsibility.” Harper’s, founded in 1850,

is a monthly magazine of literature, politics, culture, finance, and the arts and is the

second-oldest publication in the United States. Harper’s longevity and credibility is

not without its reputation in accuracy and a rigorous fact-checking process attendant

to all of its articles prior to publication. In fact, Harper’s has been known to reject articles for factual inaccuracies. See The Daily Beast, available at John D’Agata’s mFact Checking Battle (last visited September 1, 2012).

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Farber’s article “Out of Control” published by Harper’s triggered the ire of AIDS activists (R. 810-811); and yet, Justice York did not recognize and obviously did not appreciate the point that, as Farber testified, her “Out of Control” article published by Harper’s went through “an unusually long and arduous” three-month fact-checking process at a highly regarded publication “to ensure the accuracy of the text,” a process that “required original source documentation of each fact stated in the publication,” and that after the “Out of Control” article was challenged, including by the “56 Errors” document, Harper’s stood on its publication without amendment or retraction. (R. 809, 812.)

The facts that Harper’s published Farber’s “Out of Control” article after an extensive fact-checking process and Harper’s subsequently stood on its publication of Farber’s “Out of Control” article without amendment or retraction (R. 809, 812) are entirely incompatible with Jefferys’ e-mailed accusation that Farber was a “liar” “who for many years” has used “fraud to argue for” Duesberg’s theory that HIV does not cause AIDS, including “altering of quotes from scientific literature” and “false representations from published papers” (R. 20, 794, 815; emphasis in the original).

Given how Harper’s fact-checked Farber’s article and stood by it after the article was attacked, and given that no periodical that has ever published Farber has ever found fault with the accuracy of her reporting in all of her 25 years, an inference may be

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drawn that Jefferys in his May 12, 2008 e-mail was grossly irresponsible and acting with reckless disregard of the truth in leveling the charges he did.

Indeed, the record shows that Harper’s did not find any inaccuracy with Farber’s article and stood behind the article in the face of Jefferys’ criticisms, and the hysteria set into motion by Jefferys. The fact of the matter is that not a single periodical in over 25 years that has ever published Farber has found fault with the accuracy of her reporting, nor with her integrity as a reporter, nor with her level of commitment to getting all facts accurate. Notwithstanding, by asserting so recklessly as he does that Farber is guilty of fraud and lies for many years, Jefferys effectively implicates the entire infrastructure of magazine journalism as complicit in Farber’s alleged “fraud” in order to accommodate his fantasy that Farber seeds and spreads “dangerous” lies, fraud, etc. Justice York failed to consider how the magazine journalism industry’s own views of Farber’s work has an important bearing on Jefferys’ credibility and knowledge.

E.Justice York Erred In Finding No “Actual Malice” Or “Gross Irresponsibility” By Relying On Jefferys’ Professed Reliance On Scientific And Medical Literature Supportive Of The Hypothesis That HIV Causes AIDS.
——————————————————-

Justice York erred in finding no “actual malice” or “gross irresponsibility” by relying on Jefferys’ professed reliance on scientific and medical literature supportive

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of the hypothesis that HIV causes AIDS (R. 28-29), as that literature does not support Jefferys’ specific defamatory statement that Farber is a “liar” engaged in journalistic “fraud” that includes “altering of quotes” from scientific literature and “false representations from published papers.”

Contrary to the rules governing summary judgment discussed above (pp. 40-41), Justice York drew inferences in the favor of Jefferys, the moving party, even though Justice York never related specifically in what supposedly Jefferys relied on
in the medical and scientific literature (R. 29) as supporting the specific defamatory statement.

In fact, the existence of a general body of scientific and medical literature supportive of the hypothesis that HIV causes AIDS does not support Jefferys’ specific defamatory statement that Farber committed journalistic fraud which included the alteration of quotations from scientific literature and false representations of published papers. Along with that general body of scientific and medical literature supportive of the hypothesis that HIV causes AIDS are, to the contrary, 2,743 (and counting) prominent scientists and medical experts who have publicly expressed profound doubt that HIV causes AIDS, and/or certainty that it can not and does not. (R. 905-948, 949-1098.) The existence of scientific and medical literature supportive of the hypothesis that HIV causes AIDS and the existence of scientific and medical

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literature supportive of the hypothesis that the cause of AIDS is something other than HIV (e.g., mycobacterium, malnutrition) do not require that the proponents of one hypothesis or the other is lying and committing fraud. Jefferys conflates scientific dialectic with one side being a “fraud,” to disastrous effect for the entire society he lives in.

Notably, Justice York does not cite are three items in the record: (i) Farber’s identification of prominent “dissenting” scientists from the hypothesis that HIV causes AIDS (R. 828-829); (ii) a petition signed by 2,743 individuals, including scientists and doctors, expressing doubt that HIV causes AIDS (R. 949-1098); and (iii) the list of scientists and academics who either support Duesberg’s position or dissent on other grounds from the HIV-AIDS hypothesis (R. 905-948). One such scientist is David Rasnick, Ph.D. (Chemistry), who has over 25 years experience in the pharmaceutical/biotech industry and who has submitted an Affidavit in this case to which Justice York makes no reference. (R. 763-772, 939.) Other “dissenting” scientists include, among others: (i) Walter Gilbert, a physicist, biochemist and pioneer of molecular biology who was awarded the Nobel Prize in Chemistry in 1980;
(ii) Charles Thomas, Ph.D., molecular biologist and former professor of biochemistry at Harvard and John Hopkins Universities; (iii) Kary Mullis, Ph.D., biochemist at the University of California at Berkeley who shared a Nobel Prize in Chemistry in 1993;

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and (iv) Harry Rubin, pioneer in the field of retrovirology and professor of cell and developmental biology at the University of California-Berkeley. (R. 828-829.) The record in this case thus reflects that the dissent from the HIV-AIDS hypothesis has significant support in highly reputable quarters and is far from being confined to Duesberg and that there is a serious scientific debate over whether HIV causes AIDS. (R. 763-779, 827-832, 834-884, 905-948, 949-1098.) On summary judgment, a case should not be decided based on the orthodoxy of an “establishment.”

Thus, the existence of the “56 Errors” document, which is specifically critical of Farber’s “Out of Control” article published by Harper’s, does not establish that Jefferys did not act with “actual malice” or “gross irresponsibility” in accusing Farber of journalistic fraud, not when:

(i) Farber and Harper’s took care to ensure accuracy, so that, among other things, quotes were not altered and published papers were not misrepresented (R. 809-810); (ii) Harper’s stood by the Farber article (R. 812), (iii) NIH found that Gallo, a prominent co-author of the “56 Errors” document, committed scientific fraud (R. 829-830), and (iv) a group of prominent medical and scientific experts thoroughly debunked the “56 Errors” document as error-ridden, misfocused and engaging in character assassination (R. 812, 834-884).

Particularly noteworthy is the fact that Justice York acknowledges that “56 Errors” was a co-signed by Jefferys (R. 28-29), yet somehow accords weight to

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Jefferys’ reliance thereon as dispositive of Jefferys’ lack of constitutional malice.

The idea that Jefferys’ reliance on his own articles establishes, as a matter of law, that he did not act with the requisite malice required for actionable libel is simply
untenable.

F.Justice York Erred In Finding No “Actual Malice” Or “Gross Irresponsibility” By Relying On Jefferys’ Identification Of Eight Purported Inaccuracies In Farber’s Writings.
—————————————————–

Justice York erred in finding no “actual malice” or “gross irresponsibility” by relying on Jefferys’ identification of eight purported inaccuracies in Farber’s writings (R. 29-30); that there were no such inaccuracies only helps show that Jefferys published with “actual malice” and “gross irresponsibility” when accusing Farber of journalistic fraud, because it was obvious to any reasonable reader that no such fraud existed and it was, at a minimum, grossly negligent that Jefferys’ published his defamatory e-mail anyway.

It was contrary to the rules governing summary judgment discussed above (pp. 40-41) for Justice York to assert broadly that Jefferys did not act with “actual malice” or “gross irresponsibility” because Jefferys quoted medical journals to show eight inaccuracies in Farber’s writings. (R. 29.) As it was, eight purported inaccuracies do not show “many, many examples” over “many years” of journalistic fraud and lying, and Jefferys’ anemic defense of his broad brush attack on Farber for being a liar

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guilty of journalistic fraud was no basis for definitively ruling on summary judgment that Farber could not show actual malice and gross irresponsibility.

Justice York’s treatment of the matter is particularly unjustified given that Jefferys promised in his libelous e-mail that he could provide “many, many examples” of lying and fraud and did set forth eight “examples” of what he says supports his the defamatory statements in his May 12, 2008 e-mail. (R. 584-595.) Those “examples” are discussed in the Farber Affidavit (R. 816-826, 886-904) and in the Rasnick Affidavit (R. 768-772) to show that these “examples” do not support Jefferys’ defamatory e-mail and further, that there were no such eight inaccuracies in her writings — that Jefferys had misunderstood data, countered her accurate assessment of a long term study with a short term study, made mountains out of molehills and misunderstood Farber’s point. (R. 816-826.)

To be sure, Justice York gave short shrift to Farber’s presentation as merely showing that Jefferys was wrong or confused or giving his opinion. (R. 29-30.) But what Justice York unwisely ignores is that Jefferys cannot even show that Farber was inaccurate in the eight cited examples and that, therefore, Jefferys must be considered as having been grossly irresponsible and writing in reckless disregard of the truth when accusing Farber of being a “liar” who had for “many years” engaged in journalistic “fraud.”

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Justice York failed to recognize that Jefferys’ “8 inaccuracies” were not written to identify the differences in ideologies held by Farber and himself, but, rather, were written to supposedly “expose” how Farber was a “liar”, “used fraud” “for many years”, and was guilty of “journalistic fraud” and “altering quotes” in support of his contention that he was not grossly negligent in sending the May 12, 2008 e-mail. In setting forth “8 inaccuracies”, Jefferys makes countless accusations that Farber misquoted, mischaracterized information, and/or credited non-existent findings gleaned from a 1994 NEJM study, 2006 Lancet article, 2006 JAMA article, and 1999 AIDS article. (R. 587-595.) However, Farber’s Affidavit and Rasnick’s Affidavit painstakingly demonstrated how patently accurate Farber was in characterizing and quoting from the very medical journals and articles to which Jefferys’ cites. (R. 186-193, 606-624, 673-724, 732-740, 768-789, 817-826, 833, 887-903.) Jefferys’ insistence on categorizing Farber’s articles as “error-ridden” is at odds with the plain language of the cited articles themselves, which is indicative of Jefferys’ actual malice in declaring Farber’s articles as “error-ridden” anyway.

To take one example, In Farber’s article “AZT Roulette,” published in the September/October 1998 edition of Mothering Magazine, Farber describes an article published in 1994 in the New England Journal of Medicine (“NEJM”) that addresses the matter of the efficacy of the use of AZT to reduce maternal transmission of AIDS.

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(R. 817-820, 6673-688.) Jefferys says that Farber attributes to the 1994 NEJM article a statement that the effectiveness of AZT was impossible to quantify because of the small number of infected babies studies and that the 1994 NEJM article makes no such statement. (R. 587-588.) But the 1994 NEJM article did make the statement.

Farber wrote in the Mothering Magazine article:

“The study authors themselves, when they reported their findings in the New England Journal of Medicine (NEJM) in 1994, admitted that the efficacy of AZT in reducing maternal transmission of HIV is ‘impossible to quantify [absolutely] because of the very small numbers of infected
babies [studied].’”

R. 817, 887-895; emphasis supplied.) Jefferys cannot claim that the “quoted language” appears “nowhere in the article.” The study authors of the 1994 NEJM article listed eighteen factors other than AZT that could “influence the risk of maternal-infant HIV transmission,” but they said that it was impossible to “identify prognostic factors…in this interim analysis.” Specifically, the NEJM authors wrote:

“The efficacy of zidvudine was observed in all the subgroups. It was impossible to identify prognostic factors for HIV transmission (other than treatment) in this interim analysis because of the small number of infected infants in the zidovudine group.”

(R. 673-680, 817-818.)

Thus, Justice York missed the mark in equating Jefferys’ e-mail with constitutionally protected speech based on Jefferys’ reliance on “numerous reliable

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sources” or his supposed reliance on “at least one authoritative source” because it was not his reliance on the ideologies set forth therein that formed the basis of his defamatory statements, but, rather, his own willfully blind denial of Farber’s accurate reporting on those sources in furtherance of his campaign to silence Farber and to ensure that her career was over before she ever dared to challenge him again. The First Amendment was not enacted for the purpose of protecting individuals who make statements that are patently false, just because they refuse to acknowledge the truth even when it’s staring them in the face – that is a classic example of the type of “reckless disregard of the truth” that has been countenanced by our nation’s courts.

G. Justice York Erred In His Discussion Of The Blood Splattered Photograph Of Farber And The So Called “Peters Affidavit,” Wrongly Failing To Recognize Additional Proof Of “Actual Malice” And “Gross Irresponsibility.”
——————————————————

Justice York erred in his discussion of the blood splattered photograph of Farber and the so-called “Peters Affidavit,” wrongly failing to recognize additional proof of “actual malice” and “gross irresponsibility.”

Justice York did not abide by those summary judgment rules when drawing inferences in Jefferys’ favor by treating the blood splattered photograph of Farber (R. 885.) as merely showing her celebrity status with AIDS activists and thus, perversely, justify a higher requirement of proof from Farber (R. 24). On summary judgment, the

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blood splattered photograph of Farber should be seen reflecting the kind of strong prejudice seen in Harte-Hanks Communications, Inc. v. Connaughton and the lack of caring about the truth seen in Sweeney v. Prisoners’ Legal Services of New York, Inc. that supported findings of “actual malice.”

Justice York did not abide by summary judgment rules when drawing inferences in Jefferys’ favor by badly misdescribing the so-called “Peters Affidavit” as irrelevant comments supportive of Farber’s integrity and asserting that the statements made by Jefferys on websites and quoted in the “Peters Affidavit” showed Jefferys was sincere. (R. 34.) As noted above, there was no Peters Affidavit, but rather an Affidavit by Clark Baker, who was hired by Semmelweiss President Chalifoux to conduct an investigation in the wake of the Jefferys’ e-mail; and “sincerity” on the part of Jefferys is not what can be determined on summary judgment when reviewing the appallingly abusive, at times profane e-mails that Baker found Jefferys had orchestrated, a few of which Jefferys wrote in order to call Farber and Duesbeg “inveterate liars.” (R. 780-804; see pp. 25-26 above.) One conclusion that can be reached from Baker’s investigation is that Jefferys believed that he had achieved some measure of success with the e-mail campaign; it was reported after “Whistleblower Week in Washington” ended, “Jefferys is thankful Duesberg and Farber didn’t get near Congressional leaders. . . .” (R. 792.)

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CONCLUSION

For the reasons stated above, this Court should reverse the appealed from the Decision/Order of the New York County Supreme Court, reinstate Jefferys in the action as a Defendant and order such further relief as deemed just and proper.

Dated: New York, New York
September 6, 2012

Respectfully submitted,
NESENOFF & MILTENBERG LLP
Attorneys for Plaintiff-Appellant
Celia Farber

By: _____________________________
Andrew T. Miltenberg, Esq.
Philip A. Byler, Esq.
Kimberly C. Lau, Esq.
363 Seventh Avenue – Fifth Fllor
New York, New York 10001
212.736.4500

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APPELLATE DIVISION – FIRST DEPARTMENT
CERTIFICATE OF COMPLIANCE

I hereby certify, pursuant to 22 NYCRR section 600.10(d)(1)(v), that the foregoing Brief was prepared on a computer using Word Perfect.

A proportionally spaced typeface was used as follows:

Name of Typeface: Times New Roman

Point Size: 14 for text

Line Spacing: Double

The total number of words in this Brief, inclusive of point headings and

footnotes and exclusive of pages containing the Table of Contents, Table of Authorities, Proof of Service, statutes, rules, regulations, etc., is 12,442.

Dated: New York, New York
September 6, 2012

NESENOFF& MILTENBERG, LLP
Attorneys for Plaintiff-Appellant
Celia Farber

By: _____________________________
Andrew T. Miltenberg, Esq.
Philip A. Byler, Esq.
Kimberly C. Lau, Esq.
363 Seventh Avenue – Fifth Fllor
New York, New York 10001
212.736.4500

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK

Index No. 106399/09

PRE-ARGUMENT
STATEMENT

———————————————————-
CELIA FARBER,
Plaintiff,

-against-

RICHARD JEFFERYS, KEVIN KURITSKY
and JAMES J. MURTAUGH,

Defendants.

———————————————————-

1. The title of the action in the court below is as shown above.

2. The full names of the parties are: Plaintiff-Appellant Celia Farber, Defendant-Respondent Richard Jefferys, Defendant Kevin Kuritsky and Defendant James 1. Murtagh.

3. Plaintiff-Appellant Celia Farber’s counsel is Nesenoff & Miltenberg, LLP, 363 Seventh Avenue, Fifth Floor, New York, New York 10001, 212-736-4500.

4. Defendant-Respondent Richard Jeffreys’s counsel is Gibson, Dunn & Crutcher, LLP, 200 Park Avenue, 47thFloor, New York, New York 10166-0193,212-351-4000.

5. This appeal is from every part of the Decision/Order of the Supreme Court, New York County (Justice Louis B. York), dated November 2,2011, entered in the office of the Clerk of the Court on November 9, 2011 and noticed for entry November 17,2011.

6. The appealed from Decision/Order of the Supreme Court, New York County (Justice Louis B. York) granted Defendant-Respondent Richard Jefferys’s converted Motion for Summary Judgment dismissing Plaintiff-Appellant Celia Farber’s Amended Complaint.

7. Reversal of the appealed from Decision/Order of the Supreme Court, New York County (Justice Louis B. York) is warranted for at least the following reasons:

(a) The County Supreme Court erroneously granted summary judgment on a statement of facts without stating, applying and observing the rules governing the grant of summary judgment.

(b) The County Supreme Court erroneously stated and applied the law of limited public figure.

(c) The County Supreme Court erroneously analyzed the record with respect to proof of constitutional malice and gross irresponsibility, among other things failing to recognize that the specific instances identified by Defendant-Respondent
Richard Jeffreys of Plaintiff-Appellant Celia Farber’s purported false representations of published papers, alteration of quotations, fraud and being a liar showed no such problems.

(d) The County Supreme Court erroneously stated and applied the law respecting the constitutional protection of “opinion.”

(e) The County Supreme Court erroneously failed to state and failed to apply the proper methodology for distinguishing
“opinion” and “fact” for defamation and constitutional law
purposes.

(f) The County Supreme Court erroneously treated as “rhetoric” (“opinion”) what was “fact” for defamation and constitutional
law purposes.

(g) The County Supreme Court erroneously discussed a so-called “Peters Affidavit,” rejecting its contents as relevant for analysis of constitutional malice and gross irresponsibility, when in fact what was submitted in the motion record by Plaintiff-Appellant Celia Farber were three affidavits (one by Plaintiff-Appellant Celia Farber, one by Semmelweiss investigator Clark Baker and one by David Rasnick, Ph.D.) that provided ample relevant evidence of constitutional malice and gross irresponsibility.

(h) The County Supreme Court erroneously granted summary judgment pre-discovery without allowing for any document production, interrogatories,depositions and notices to admit.

Dated:

New York, New York
December 7, 2011

Respectfully submitted,

Andrew T. Miitenberg, Esq.
Philip A. Byler, Esq”‘.—
Attorneys for Plaintiff
363 Seventh Avenue – 5th Floor
New York, New York 10001

212.736.4500

TO:

Gibson, Dunn & Crutcher, LLP
200 Park. Avenue, 47’h Floor
New York, New York 10166
212.351.4000

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