How Do You Fight Defamation by Innuendo? Mark McAfee May Have the Best Formula, for Now
Sunday, March 9, 2008 at 10:01PM I know Mark McAfee has a pretty full legal plate, but I wonder if he might have cause for a libel action against the San Jose Mercury News for its article about how Organic Pastures Dairy Co. has been forced to suspend sales of raw cream.
As I recall it from my journalism school days, it’s very difficult for any kind of “public figure” to sue anyone for libel. If you are a politician or own a business, you are generally considered a public figure, and the media can say pretty much anything they want to about you…unless the statements can be shown to be false, and also intended primarily to be defamatory.
It’s tough to meet both these criteria, which helps explain how dozens of publications make attractive livings reporting half-truths about Britney Spears and other celebrities.
But the Mercury News seems to come pretty close to meeting these criteria. Consider this statement in the article: “Organic Pastures in particular has been beset by potentially harmful bacteria in its raw milk in recent years.”
From everything I know, and as Mark reaffirms in his comment on my previous posting, that is a false statement. Unless there’s something both OPDC and the state are hiding from us, Organic Pastures has never “been beset by potentially harmful bacteria in its raw milk…”
The paper uses that statement to then make the connection to two incidents in which people became ill. The fact that there is a lawsuit in one of the incidents gives the paper some latitude in reporting on "charges," but in the other, involving campylobacter, the only connection is that “state public health officials investigated reports of a campylobacter bacterial outbreak that sickened five people who drank Organic Pastures raw milk.”
Can you imagine if a newspaper stated that “state public health officials investigated reports of a campylobacter bacterial outbreak that sickened five people who drank Tropicana Orange Juice”? That just wouldn’t happen. Or at least it wouldn’t happen until a definitive connection had been made between the illnesses and the product. Just as nothing was said in the Massachusetts pasteurized-milk-illness situation until the case was airtight after three men died and a pregnant woman had a miscarriage.
So if the statements are false and misleading, the question becomes, why did the paper make them? Very likely, the reporter was ignorant about the issue and was led astray by state officials, but ignorance isn’t necessarily an excuse for defamation.
Defamation often happens just like this—by making an inaccurate statement and then coming up with all kinds of “evidence” to support it. It’s happening to Barak Obama, with email campaigns suggesting that he must be a secret Muslim because he has a Muslim-sounding name. It gains credence when the radio talk show hosts use it as the basis of discussion, and a supposedly responsible politician like Hillary Clinton says it’s not true, “as far as I know.”
Just like this statement from the Mercury News article: " 'The link appears suspicious, but it's just not something we can prove,' said state epidemiologist Dr. Gil Chavez." Yeah, we'd love to haul Mark in and string him up, but damn it, we're never able to quite prove anything.
If it’s not something you can prove, why print it to begin with? Only one reason I can think of.
I don't really expect Mark to seek legal action against the Mercury News, given all he has going on. But I think he's definitely going in the right direction by forcefully taking on the charges, point by point, again and again and again. He's trying to undo the lie that's been repeated so often it's taken as the truth.
Reader Comments (65)
Steve, Lisa, Gary, Pete, or anybody associated with FTCLDF with a law firm letterhead—would you please preserve the legal rights and interests of the McAfee family and the Organic Pastures Dairy Company?
Please refer to my prior comment of January 3, 2008 (link below) for steps that must be taken to preserve Mr. McAfee’s legal right to pursue punitive monetary damages for “actual malice” against the above-named parties at a future date (within the 1-year statute of limitations):
http://www.thecompletepatient.com/journal/2008/1/3/in-ca-ab-1735-conflict-you-cant-tell-the-players-or-the-play.html#comment1200301
Next, here is a sample letter incorporating all the legal elements necessary to preserve Mr. McAfee’s rights under California law:
http://www.ae911truth.org/info/23
Each of my prior public and private warnings, i.e., (1) that the state’s highly destructive defamatory attacks against Organic Pastures would become worse and worse until legal action was taken against the ongoing trade libel, and (2) what Bill Marler’s intentions toward Mr. McAfee were, was abruptly rejected—to the detriment of the vital bodily health of those of us who are already being adversely affected by the actions now being carried out against our supply of healing-grade grass-fed raw milk.
I believe the highly relevant Abraham Lincoln quote Mr. Cox was searching for was this:
"Public sentiment is everything. With public sentiment, nothing can fail; without it nothing can succeed."
To that end, a letter signed by Mr. McAfee and sent via certified mail demanding retractions and printed corrections reflecting the truthful facts from the above-named parties will be the first step toward setting the wrongs to right.
The very future of our food supply is on the line.
These are Mark’s words posted a few days ago on this blog. “The children that became sick in 2006 all had consumed spinach and their illnesses had an onset at the very peak of the spinach crisis. Not all of the kids drank raw milk. Some had drank raw colostrum that was not even from OPDC. Not all of the children shared the same pathogen.”
Here are the true facts: 5 children had an identical blueprint of Ecoli 0157:H7 (not the same as the spinach). Mark McAfee plays the same game with facts that the media does.
In the middle of a spinach outbreak, wouldn’t the first question asked by doctors be, “Did you eat spinach?” The common food all the children consumed were products from Organic Pastures.
http://www.co.kern.ca.us/health/pressr/MilkRecall922.pdf
It appears that the issues of those 5 kids has been rehashed many times here. Whether they ate spinach or not really isn't the issue. The issue is; did OP's milk cause the E-Coli or not? To date, I haven't seen any proof that OP's dairy did cause the illnesses. Where is the evidence that any of these purported illnesses were caused by Organic Pastures’ raw milk?
5 children became sick, what about other members of those families? I find it very strange that only one person from 5 different families became ill. I have not heard of other family members becoming ill at that time. Were the family members tested too? Don't you find that strange? I do.
I am a raw milk supporter, but I find that Mark alternatly plays fast and loose with the truth, and then gets very picky about other facts, when it is in his interest to do so. I do believe we heard from the parents on this blog, and learned that some had not consumed spinnach. Mark looses all credibility with me when he fails to give the correct information about these children. If he can distort this truth, I have to wonder what other truths he is willing to distort at well.
I hope he prevails in California, and stays in business, but through his postings on this blog, I have come to see him as his own worst enemy.
California Department of Health Services memo CA-EPI 06-06 (Escherichia coli O157:H7 Infections in Children Associated with Raw Milk) claims that the strain of E. coli O157:H7 in the patient samples from the outbreak at issue here was different from the strain of E. coli O157:H7 isolated from a spinach sample analyzed in September 2006.
This does not mean that every leaf of spinach and lettuce harvested in California at that time was free of pathogenic shiga toxin-producing E. coli (STEC) contamination. For example, see Stacey Shepard’s report in the online edition of The Californian for February 22, 2008: “2006 E .coli outbreak linked to local farm.”
So, to put your case to rest once and for all, instead of simply calling Mark McAfee a liar, would you please lay out for all of us your entire collection of evidence that definitively proves that Organic Pastures products were contaminated with the same strain of E.coli O157:H7 that was isolated from the patient samples? Thank you.
Let's say you are right...all five children DID have OP products. Well...all five also breathed air, and all five probably rode in a car during the infection period, and all five probably wore clothes during that same period. Would you suggest that because of those commonalities air, auto transportation, or lack of a nudism lifestyle by their parents should be blamed for the E. Coli? Perhaps we should blame it on sleeping...I'm sure all the kids slept during that period.
The bottom line is that test after test after test was done on OP products, and there was NO evidence of the suspect patogen...or any other pathogen for that matter. Not in the products themselves and not even in the feces of the animals involved.
Y'alls arguments simply don't hold water, and show vindictiveness, not a search for truth.
Bob Hayles
Thornberry Village Homestead
Jasper, GA
Thornberry Village Homestead...a small goat dairy, owned by God, managed by Bob and Tyler.
Furthermore, the main suspect is a living food, with the ability to destroy pathogens that enter it. No one in this country has been more vocal on that point than Mark himself. The fact that the pathogen was not found in OP milk is helpful, but carries much less weight than if it had been found there.
Mark needs to stop talking about this incidence, get the fact correct about the children when he does, and thank God that nothing was found. He then needs to focus on defending our rights to consume his product, tainted or not.
What entity has not distorted the truth? Told out-right lies? Alluded to or implied falsehoods?
The government and media lost all credibility with me years ago. Individuals have also. I will listen and do my own research to obtain my own conclusions.
That does not mean that each entity is always distorting facts. Each one has volumes of information, it is up to each of us individuals to decipher the meaning according to our own beliefs/knowledge. I didn't agree with HRT nor do I agree with the HPV vacc. Many people think they are the next best thing to sliced bread.
I still have not found any information on why only one person in each family became ill. In my home, we all eat the same foods usually, and if foods were contaminated, especially milk, odds are that more than one of us would become ill.
If the OP dairy was contaminated during that period, then why only 5 kids becoming ill? If,I don't remember the number of raw dairy consumers in CA, If say 50000 drink raw dairy, they why only 5 become ill? It just doesn't add up.
Elizabeth,
If you "couldn't prosecute Taco Bell without sufficient evidence", then why are they suing OP without sufficient evidence? Or is this suit a waste of the courts time and peoples' money?
I think the harassment of the raw dairies only brings forth free advertisment for them. I haven't looked into it, but I wouldn't be surprised if it causes an increase in those shifting to less processed foods, thus increasing sales of raw dairy and organic produce.
But of course once the Health Department finds raw milk in the refrigerator, they simply stop looking for any other cause.
Where is the evidence of other foods tested?
Yes, their suit is a waste of the courts time and the people's money. And I also agree that the free advertising will help the raw milk movement. But I don't think we need the help, the movement is growing on its own.
The spinach facts are very important here, not up to personal interpretation. If indeed all 5 children consumed spinach, then Mark is cleared. If not, then his dairy remains a suspect. Not convicted, just a suspect. He needs to get that fact correct. It errodes his credibility when he does not.
For me, the most convincing defense of OP is that one of the children consumed colostrum, while the others consumed milk That means different cows with the same ecoli blueprint. I assume the odds of that are pretty low.
Mark is already cleared regardless if all 5 children consumed spinach or not.
i started doing some math. 36 million people live in california. it is estimated that around 40 thousand people drink raw milk in California. that’s about .001% of california’s population.
did 5 children, who all drank op raw milk during the same time period also eat some other common food? I’ve come to the conclusion that i think this would be impossible.
one of the mom’s on this blog suggested reading a book called the probiotic revolution. i’ve read it and decided that adding probiotics to my family’s diet may be as beneficial as drinking raw milk. with this method, there is not a risk of pathogens.
besides, it looks like raw milk may soon be unavailable in california.
The fact that Mark is in a lawsuit right now does not tell me that he's been CLEARED by any means.
Besides food freedom issues, I think one of the most dangerous things happening in this country is prosecutorial misconduct and over-prosecution of minor offences - and you can just add USDA and FDA harrasment of citizens to that list.
What if the state came in and took your kids or just accused you of mistreating them and you sued them because they damaged your reputation? How would you like it if your community just assumed "where there's smoke there's fire?"
That is a valid point but dont you think a bit extreme in comparison? One can over-analyze this to death. It still remains, people got sick, not matter how many and all evidence should be presented.
We all need continue our own and others education and fight for our rights to be able to CHOOSE what WE want to put into our bodies. Discussion, debate, action and activism. That's how we will defend our rights.
Keep up the great work, David. Keep asking the questions everyone!