California justices frown on Internet libel lawsuits

DAVID KRAVETS

Associated Press

The California Supreme Court is taking a dim view of libel lawsuits against Web site operators who post inflammatory information from other sources.

The justices said during a 60-minute court hearing Tuesday testing the 1996 Communications Decency Act that Congress and other courts have already spoken on the issue. The justices were leaning toward tossing out a lawsuit against a San Diego woman who posted an allegedly libelous e-mail she received on her site’s message board.

The widely watched case included briefs from some of the Internet’s biggest names, including Amazon.com, America Online Inc., eBay Inc., Google Inc., Microsoft Corp. and Yahoo Inc., all of which took the defendant’s side for fear that a ruling against her could also open them up to the same type of liability.

Justice Ming Chin wondered aloud Tuesday whether there was “any contrary legal authority” to support a damages claim against Ilena Rosenthal, a woman’s health advocate who runs various message boards and promotes alternative medicine.

The seven justices debated congressional legislation and court decisions that granted Internet service providers and people like Rosenthal immunity from being sued for the content of others’ speech.

Unlike newspapers, which are liable for what it prints, Congress treated the Internet much differently, in large part to not hinder the free flow of massive amounts of information available to anyone with Internet access.

“Why shouldn’t we leave it for Congress?” Chief Justice Ronald George said.

The court rules within 90 days.

The case concerns a 2004 California lower court decision allowing the case brought by Terry Polevoy, a Canadian doctor, and Stephen Barrett, a Pennsylvania doctor. In 2000, Rosenthal posted an opinion piece from a man whom the doctors also are suing for libel.

The posting contained an account of Polevoy’s alleged attempts to cancel an alternative medicine radio show in Canada by using what was described as “scare tactics, stalking and intimidation techniques” against the show’s host.

The doctors’ attorney, Christopher Grell, said allowing people to post libelous information is absurd. He said the issue intersected free speech and “the right to seek redress from the court.” He said letting Rosenthal off the hook would equal “the total sacrifice of a person’s good reputation.”

Justice Carol Corrigan wasn’t moved.

“Isn’t the whole point here that the Internet is just different?” she said.

Justice Kathryn Mickle Werdegar suggested the court’s hands were tied by precedent. She said Grell was making “policy arguments” for “Congress to weigh.”

Justice Joyce Kennard noted that lower court’s decision was contrary to precedent and law and “would encourage excessive censorship.” Still, she added, that “doesn’t mean this court should be like a sheep and follow the other courts.”

The case is Barrett v. Rosenthal, S122953.

Editors: David Kravets has been covering state and federal courts for more than a decade.

Who Are the Quacks?

WHO ARE THE QUACKS?By William Howard Hay, M.D.


Buffalo, New York

 

 

     What is a “quack”?  Medically speaking a quack is everyone but us, the regular school of medicine.   No one not a graduate of a modern school of medicine is free from odium of quackery, from the regular classical, orthodox standpoint.  Isn’t this true?

 

     Let us put the definition of “quacks” a little more broadly, not limiting it to outlaw cults.  From the broader viewpoint a quack is someone who pretends to be something which he is not, or one who is not able to do what he claims to do, especially if he takes money for this pretense. 

 

     From this broader view how many of us are there who can escape the suspicion of quackery?

 

     If we should tell the absolute truth how often would we be compelled to say to a patient, “I do not know what is the matter with you, and not knowing this, I am in no position to treat you intelligently?”

 

     If we were honest how many patients would we have?  They would all leave us for the quacks, and we would be left holding the bag, as it were.  We know this, and all unconsciously we are compelled to assume an air of wisdom and pronounce judgment on maladies for which we are consulted, well knowing that if the case escapes us and goes to someone else our opinion is in danger, for it is well a known fact that if a case is not perfectly plain (and most cases are NOT plain), should such a case go to a hundred different regular, well-informed physicians he would get nearly as many different diagnoses, and still more different plans of treatment.

 

     We know this, I say, and we unconsciously protect ourselves by assuring the patient positively that we understand his condition very well, in order to make sure of this unfailing confidence in our enlightened judgment.

 

     Are we quacks for this deception?  How can we escape the imputation?  Who is to blame for this position in which we find ourselves?  Is it our fault or that of human nature as expressed in the patient?  No doubt both, for while we are to blame for allowing ourselves to be placed in this position of arbiters of disease, about which we do not know very much, yet so also is the public to blame for being so silly as to think that the mysterious thing we call disease can be reduced to exact formulae.

 

     The fathers of medicine made what they were pleased to call discoveries, which were generally discoveries that certain drugs produced certain symptoms if taken into the interior of the human, and these discoveries were proposed to combat the symptoms of disease.

 

     This was originally a theory, always has been a theory, and in the very nature of things never can be anything but a theory, for the internal processes of the body in health or disease, are not and never will be fully understood, the vital processes not being subject to exact analysis; and while we may learn much of the internal chemistry of the body, and discover experimentally many things of interest in the functions of the various organs, yet we never can analyze the vital machinery in action in the sooner we drop this pretense of exact knowledge the better it will be for our prestige.

 

     Fully a third of the population of the
U.S. has ceased to depend on regular physicians for advice or treatment of their various diseases, perhaps, because they are beginning dimly to realize through many disappointments the fallibility of classical medicine.  Who can tell?

 

     A questionnaire issued to seven thousand people recently disclosed the fact that less than ten percent of them were unqualifiedly loyal to medicine, more than ninety percent admitting their allegiance, partially or wholly, to Christian Science, Chiropractic, Osteopathy, Naturopathy, Mechanotherapy, or other cult.

 

     “Quacks”, we sneer, yet we must admit the falling off in our former supremacy in the treatment of disease.  This is a bitter admission, yet if we are honest enough to face the truth, we should look this thing fairly in the eye and to know why this defection.

 

     A few years ago, Sir James McKenzie, of St. Andrews, Scotland, quoted in the London Times, from the London Lancet, said in effect that to diagnose a gastric ulcer, gall stones, appendicitis, tumor, is not diagnosis in the strict sense of the word, but merely naming a prominent symptom, denoting the point of convergence of the cause of the diseased condition, but to say why this man is sick, to tell how and why he has departed from health, is not possible to him, in this wonderful clinic, in more than ten percent of the cases examined.

 

     Dr. Cabot of the Harvard Medical School, says of the post modern finding of the Massachusetts General Hospital, where precision is carried to the n’th degree, that these have proven the diagnosis to be wrong in over fifty percent of the cases, and this means they have missed the principal trouble in more than half of the cases, and Dr. McKenzie says that even this is not diagnosis at all. Sir William Osler, late Regis professor of medicine in
Oxford, quoted the immortal Voltaire as saying:  “We put drugs of which we know little, into bodies of which we know less, to cure disease of which we know nothing at all.”

 

     Quacks, just plain quacks, whether we are willing to admit it or not, for are not we doing the very things for which we condemn those whom we are pleased to call by this opprobrious name?

 

     In 1857-63 Antoine Bechamp announced his microzmian theory of fermentation, which he was pleased to say was also the theory of the beginning of disease, recognizing germs at metamorphoses of the miscrozmya for biochemic purposes.

 

     Pasteur, a contemporary of Bechamp, not a physician, but a chemist, or rather an apothecary, attributed to the germs, these micro-organisms developed from the microzyma of Bechamp, the role of invader, believing that because they were ever present in disease, certain germs being supposedly always present in certain diseases, that therefore they cause these diseases.

 

     Bechamp was a scientist, Pasteur an advertiser.  Bechamp was so absorbed in his researches that he contented himself with occasional reports to the Academy of Sciences while Pasteur went to the public with everything he discovered, creating a popular following that acclaimed him a scientific genius.

 

     Much of his work was plainly cribbed from Bechamp without credit, and interpreted to suit his purpose, which was to build up a huge market for germ destroyers.

 

     Bechamp died poor and unknown, outside the Academy; Pasteur in almost affluent circumstances acclaimed by the scientific world as a great benefactor, and mourned yearly since his demise.

 

     This theory of germs as the cause of disease was analyzed by Prof. Robert Koch, who formulated a dictum, accepted by the scientists of his time, that must be met in order to fix on the germ as a cause of disease.

 

     According to this dictum if the germ caused the disease it must be present in every case of this disease; it must not be present except in conjunction with the disease, it must be susceptible of separate cultivation in proper media outside the body, and finally, it must be susceptible of transplantation again in the human body, where it must infallibly produce the same disease.

 

     The germ theory does not meet a single one of these conditions infallibly, the germ frequently being absent from diseased conditions which are attributed to it; being generally present in bodies in which the disease attributed to it is most conspicuous by its absence!  And while germs are susceptible to cultivation outside the body, in suitable media, yet they are subject to mutation as the medium is changed in character, and, if again introduced into the body, they do not always infallibly cause the disease they are supposed to cause, generally not causing disease of any kind whatsoever.

 

     Pasteur has already set us back sixty years by his advertising of the germ theory, and if we go back to the teachings of Bechamp, recognizing the microzyma as the prime cause, and the germ as a development of a biochemical nature, result of the condition of the body, transformed into a necessary scavenger to remove from the body objectionable matter, we will perhaps regain the ground lost for over sixty years, and be able to concentrate our attention on the soil conditions in the body, not on the harmless germ scavenger.

 

    If the bacillus of tuberculosis was the cause of tuberculosis how could any of us escape infection? 

 

     The same is true of typhoid fever, pneumonia, any infectious disease, for the germs accompanying those diseases are ubiquitous.

 

     We are spending valuable time, oodles of money, splendid brain power, in studying the life history of germs when they are but biochemic scavengers, friendly things whose function is the often urgent one of ridding the body, on short notice, of accumulations that have become intolerable, embarrassing to functions, so that we are thus missing the real object of our search for the cause of disease.

 

     The soil conditions that make necessary the presence of the germs are our real field of search, but we have lost sight of this field almost entirely in our frantic hunt for germs, and we can lay the blame for this wrong steer on Louis Pasteur.

     We have no proof of the boasted effectiveness of any form of antitoxin or vaccine or serum.

 

     After one is vaccinated or serumized, immunized, we have destroyed the only proof that counts, for we have no way of knowing whether or not the vaccinated or serumized person would have contracted disease in the absence of this so-called protection; not all do so.

 

     If such vaccinated or serumized person contracts the disease against which he is supposed to be protected it is pretty good evidence that such “protection” is valueless, isn’t it?  Surely people do contract disease against which they are supposed to be immunized, as we all know.

 

     In World War I were not our boys in the army thoroughly “protected”?  They were physically fit on admission to the army, else they could not have got by the examining boards; they were thoroughly, very thoroughly immunized against typhoid fever, meningitis, pneumonia, influenza, yet they died like flies, not on the firing line, but right here at home, in the concentration camps, where they were surrounded by the finest sanitary precautions that science could devise, and not only did they die, but they died of the very disease against which they were supposed to have been rendered immune.

 

     Do you doubt this statement?  Look up the records of every cantonment in the country during the concentration of the army, and see for yourself whether or not this is true.  The death rate from pneumonia, complicating influenza, was simply staggering, in some camps reaching four or five times the rate among civilians, these weak ones who were not able to go to war, who did not have the blessings of immunization.

 

     How much good did the serum treatment do these boys?  Ask Louis Pasteur, if you can conjure up his disembodied spirit.

 

     Quacks, all of us, doing the things we do not know how to do, promising things we cannot perform.

 

     Is it any wonder the public is getting a little suspicious of us and our vaunted “discoveries”?  The wonder to me is that there are still seven millions of them willing to submit to vaccination and serum treatment.

 

     The true figures on vaccination for smallpox have never got before the public, though they can be seen in the files of various departments of the army as well as the government, if one cares to ask for them.  If the record of vaccination in the
Philippines alone were ever to become matter of general knowledge, it would finish vaccination in the whole country, at least among those who were able to read and think for themselves.  After three years of the most rigid vaccination, when almost every little brown man had been vaccinated from one to six times, there occurred the most severe epidemic of smallpox that the islands had ever seen, with the death rate running in places to almost sixty percent, and in all well over sixty thousand deaths.  Did you ever know this before?  Assuredly not; yet it is found in the government records in just this form.  Manila and the surrounding province were vaccinated most thoroughly, also they showed the highest case record and death record of the whole archipelago, while some of the outlying country was not so thoroughly vaccinated and escaped with proportionately less disease.

     How much good did we do these poor fellows?  Ask Edward Jenner!  He knows now, if so be that we know after death, and I am willing to believe that he would gladly spend a part of his eternity in purgatory if he could undo the wrong he did the world by vaccination.

 

     The only epidemic of smallpox it was ever my misfortune to attend comprised thirty-three cases, with twenty-nine vaccination histories, some recent, and unvaccinated cases did not have the disease in any more severe form than did those with the vaccination history, even those of recent history, and the same proportion holds pretty well over the vaccinated world, for vaccination does NOT protect against smallpox, though it does much harm aside from its usefulness.

 

     Well, are you satisfied that we are quacks?  In the eyes of those willing to forget the present prestige of medicine, such as it is, with all its dignity, its scientific jargon, its pratings of Altruism, its great endowment, its well heralded “achievements”, we are most assuredly quacks, professing to do things we cannot do, and-yes, taking money under this pretense.

 

     We may excuse ourselves by accusing others, and believing that no one can do better than we, but we are clearly in the wrong when we attempt to secure favorable legislation for selfish ends or try to strangle legislations that may prove undesirable to us in our position as arbiters in matters of disease.

 

     When we attempt to compel by legislation the obedience of an unwilling public we are exceeding the bounds of fairness, to say the least.

 

     The public pays its own bills, it has a perfect right to say who shall and who shall not enjoy its patronage, and for this reason, as well as those stated before the writer is wholly out of sympathy with all efforts to coerce a willing and generous people in the matter of medical care, even as in the matter of religious belief.

 

     We are continually urging on legislatures of state and nation bills to give us more power, more right to compel the unwilling obedience of a long suffering public to our every whim and wish, all “in the interest of public health”.

 

     Suppose we do succeed in so militarizing the whole country that we have the right to go into any private home and tell them what’s what.

 

     Can we do better than the medical section of the army did?  We have been seeking legislation to compel every child in school to be “Schickd”, then if reaction occurs we want the power to immunize such suspicious child.  We pray for the power of the Kaiser multiplied by seven times, and we almost have that now.

 

     If we had the power to immunize under compulsion every man, woman, and child against influenza, would the results be better than they were among the selected risks of the army?  What proof have we that they would be different?  Would death rates of twelve to thirteen percent, which seem very high to us even in so fatal an epidemic as that of 1981-19, fall under general immunization?  If they fell to twenty-six percent, as we witnessed in some of the army cantonments, it would be hard to convince the public we were benefactors.

 

     No, we are far, very far, from knowing what to do to prevent disease, and even in great epidemic diseases, such as yellow fever, we have had to take off our hats to the entomologist and the sanitary engineer, and it was an entomologist that pointed out the anopheles as the carrier of malaria infection, and it was the sanitary engineer that found how to get rid of the pesky things, while we stood by and applauded to the echo-and then took all credit, as one of the great medical achievements!

 

     The fact is we are occupying a false position, and if we are honest we will retreat as rapidly and gracefully as possible from it, and we will be willing to stand on our own achievements and be judged by them.

 

     We will allow the public to select its physician without compulsion of government, not forgetting that this is distinctly the public’s funeral, and that the public pays the bills.

 

     Until we drop all thought of compulsory medicine we should be consistent and compel our particular brand of religion and politics on our neighbors, as well as our particular brand of medicine.

 

     We have to show that our particular brand of healing is the best and only, so let us have a little more charity for other schools and for the public which has a perfect right to decide its own brand of medicine.  If we wish to escape suspicion of quackery let us be sure our backyard is clean before we seek to make our neighbors clean up theirs.

___________________________________________________________________

 

Reprinted in the interest of Truth & Justice by the Pure Food Guild Inc. of B.C. 

 

 

 

 

 

 

  

 

 

 

 

California justices frown on Internet libel lawsuits

DAVID KRAVETS

Associated Press

The California Supreme Court is taking a dim view of libel lawsuits against Web site operators who post inflammatory information from other sources.

The justices said during a 60-minute court hearing Tuesday testing the 1996 Communications Decency Act that Congress and other courts have already spoken on the issue. The justices were leaning toward tossing out a lawsuit against a San Diego woman who posted an allegedly libelous e-mail she received on her site’s message board.

The widely watched case included briefs from some of the Internet’s biggest names, including Amazon.com, America Online Inc., eBay Inc., Google Inc., Microsoft Corp. and Yahoo Inc., all of which took the defendant’s side for fear that a ruling against her could also open them up to the same type of liability.

Justice Ming Chin wondered aloud Tuesday whether there was “any contrary legal authority” to support a damages claim against Ilena Rosenthal, a woman’s health advocate who runs various message boards and promotes alternative medicine.

The seven justices debated congressional legislation and court decisions that granted Internet service providers and people like Rosenthal immunity from being sued for the content of others’ speech.

Unlike newspapers, which are liable for what it prints, Congress treated the Internet much differently, in large part to not hinder the free flow of massive amounts of information available to anyone with Internet access.

“Why shouldn’t we leave it for Congress?” Chief Justice Ronald George said.

The court rules within 90 days.

The case concerns a 2004 California lower court decision allowing the case brought by Terry Polevoy, a Canadian doctor, and Stephen Barrett, a Pennsylvania doctor. In 2000, Rosenthal posted an opinion piece from a man whom the doctors also are suing for libel.

The posting contained an account of Polevoy’s alleged attempts to cancel an alternative medicine radio show in Canada by using what was described as “scare tactics, stalking and intimidation techniques” against the show’s host.

The doctors’ attorney, Christopher Grell, said allowing people to post libelous information is absurd. He said the issue intersected free speech and “the right to seek redress from the court.” He said letting Rosenthal off the hook would equal “the total sacrifice of a person’s good reputation.”

Justice Carol Corrigan wasn’t moved.

“Isn’t the whole point here that the Internet is just different?” she said.

Justice Kathryn Mickle Werdegar suggested the court’s hands were tied by precedent. She said Grell was making “policy arguments” for “Congress to weigh.”

Justice Joyce Kennard noted that lower court’s decision was contrary to precedent and law and “would encourage excessive censorship.” Still, she added, that “doesn’t mean this court should be like a sheep and follow the other courts.”

The case is Barrett v. Rosenthal, S122953.

Editors: David Kravets has been covering state and federal courts for more than a decade.