by Paul Alan Levy
Clark Baker is a lone voice in the wilderness, proclaiming that the relationship of HIV to AIDS is a myth, that it is scientific fraud and the desire of big Pharma to pump up its profits that created this myth, and hence that there is nothing wrong with HIV positive people engaging in unprotected sex while concealing their HIV status. He has created his own enterprise, the “Office of Medical and Scientific Justice,” to pursue these theories among others, proclaiming an ”HIV Innocence Group” that, he asserts, has helped quash dozens of criminal prosecutions.
Because Baker has such interesting opinions, not to speak of a flair for self-promotion, it is not surprising that he attracts intense antipathy, and reviewing his blog, it appears that he gives as good as he gets. Expressing his views is his right, but unfortunately he is also quick on the litigation trigger finger. My most recent case involves defending a lawsuit that Baker and OMSJ have brought against a scientist whose blog, HIV Innocence Group Truth, dissects some of Baker’s claims of successful intervention. The lawsuit alleges defamation without reciting a single one of the allegedly defamatory statements, and compounds the problem by asserting that, by using the name of his HIV Innocence Group to call public attention to his criticisms, the blogger has violated the trademark laws.
In a motion to dismiss the trademark claims that is being filed today in federal court in Fort Worth, we argue that Baker has not come close to pleading a viable trademark claim, and that there is no realistic possibility that he could plead a tenable claim in light of the First Amendment and the various strictures of trademark law. Indeed, we argue, the counts in the complaint that invoke the trademark laws are just defamation claims impermissibly parading in trademark clothing.
As for the defamation (and business disparagement) claims, a separate motion was filed under the Texas anti-SLAPP statute by Gill Sperlein attacking the defamation claims (as well as the state-law trademark claim) on several grounds; I am taking second chair on the defamation issue but his arguments seem quite persuasive to me.
Although the claims in the complaint strike me as preposterous, and not likely salvageable by repleading, there are some indications that this is a prototypical SLAPP suit that has been filed for purposes quite apart from winning, and not just a suit that falls within the definition of an anti-SLAPP law. The individual plaintiff told our client that he plans to use the case to try to take the deposition of Dr. Robert Gallo, the scientist who first discovered the link between HIV and AIDS, hoping to pursue his conspiracy theories about Gallo. Even more disturbing, during the mandatory pre-motion conference with one of our local counsel, Neal Hoffman, plaintiffs’ counsel indicated that he is ready to add whatever allegations might be sufficient to avoid dismissal on the face of the complaint, and that he will do so even without having factual basis for such allegations, because he is intent on using the case to pursue discovery. That could make the case quite expensive.
The case is thus reminiscent of the suit brought by Larry Sinclair against three anonymous posters who suggested that Sinclair's wild allegations about having had sex with Barack Obama and sharing coke with him in the back of a car indicated that Sinclair was insane. Sinclair made no bones about the fact that he hoped to use the case both to publicize his claims about then-candidate Obama, which had been ignored everywhere except in the wild anti-Obama blogosphere, and to force a deposition with Obama so that Obama would be forced to answer Sinclair’s charges. Of course, in that case it was not only Sinclair but also his attorney who was a known nutcase; here, but contrast, Baker has found a lawyer who appears to be well-established in the community, and who might be taken seriously if he claims to have a basis for amending his pleadings.
Although all the lawyers are representing the blogger free of charge, the blogger remains responsible for any out of pocket expenses in the case, and it appears that plaintiffs may be intent on making this case expensive. Therefore, we are taking the precaution of starting a defense fund for the possible out-of-pocket expenses in this litigation, whether incurred by Public Citizen or by other lawyers on the legal team. Any donations not needed for the litigation once it is over will be divided between Public Citizen and the ACLU Foundation of Texas.