Tuesday, February 3, 2009

In defense of Lynn Conway

After looking at the caption of a disturbing message that came into my e-mailbox ("Kenneth Zucker attacks Dr. Lynn Conway's freedom of speech"), and doing some research, I don't think the caption is accurate: it's not an attack on Dr. Conway's freedom of speech; it is a scurrilous attempt to falsely discredit Dr.Conway as a liar and a defamer.

I took a look at the letter and the attachments mentioned in the message. these are found at the following hyperlink:


It does not appear to me that Dr. Conway's site itself contains defamatory material. The paragraph quoted on her site from the linked site contains no defamatory material. The fact that there is a hyperlink, and other material on the linked site that may arguably be defamatory (assuming they are untrue and malicious) should be immaterial - the link in question is the equivalent of a citation in an academic thesis - it indicates "here is the source for the quote." Under US and Canadian law, it is clear to me that Dr. Conway's use of the hyperlink is protected from "Dr." (an honorific I don't recognize in his case) Kenneth Zucker (who is better referred to hereafter, like Lord Voldemort in the Harry Potter books, as "[he who must not be named]"). [He who must not be named] and his lawyer know or should know better.

In the meantime, the actual material alleged to be defamatory is confusing from a grammatical point of view.

". . . alleged that as a child [he who must not be named] had sexually abused her."

Was [he who must not be named] a child at the time? Was the alleged victim a child at the time? (Of course the answer to these questions becomes immaterial if there was no actual sexual abuse that occurred - they'd be on the order of "when did you stop beating your wife" when asked of someone who has no wife, or if he has one, has never beaten her.)(Please note that I am not intending to imply that [he who must not be named] has sexually abused anyone - my sole purpose in quoting the material is to point out the grammatical vagueness.)

My idle question about whether the alleged perpetrator or the alleged victim was a minor at the time would be pertinent only if the accusation regarding sexual abuse was true. Peter M. Jacobsen, the author of the lawyer letter harrassing Dr. Conway, does not indicate in what way the arguably false statement is alleged to be untrue - is it because he is interpreting it as meaning that at the time of the (presumed) abuse, the quoted material indicates that his client was underage, or that the purported victim was underage, and that the *opposite* interpretation is true? Is it false because both parties were adults? That they were b oth adults and any sexual contact was consensual? Or are we to understand that the falsity is related solely to the allegation that sexual abuse took place, regardless of the age of the alleged perpetrator or purported victim? Mr. Jacobsen does not make that clear, and this makes us wonder about how this might be similar to former President Bill Clinton's assertion under oath that

"I did not have sexual relations with that woman."

(which, BTW, was true - as long as by sexual relations one expressly means "sexual intercourse.") I am going to make the assumption that the lawyer here believes that the falsity is based on the accusation that sexual abuse took place regardless of the relative ages of the parties. Anyway, so much for reporting on the first thing that crossed my mind in a stream of consciousness as I read the letter and its enclosures.

Turning to matters of legal substance, it's clear to me that this allegation of second-hand defamation by a mere referential hyperlink is an attempt to silence Dr. Conway, who has been an outspoken critic of people like Kenneth Zucker (oops, I mean [he who must not be named]) and Michael Bailey.

The author of the letter, who might be a Canadian lawyer (I have no idea if he is or is not) who at least dabbles in the law of defamation should be aware of the 2008 decision in Crookes v. Wikimedia Foundation Inc., (he can look up the citation himself) in which a Canadian court held that the publication of a hyperlink to an allegedly defamatory site is not "publication" within the ambit of the law of libel. Canada ordinarily treats "free speech" issues with much stricter regulation than the United States, but this case does not follow commonwealth decisions that go the other way, notably in Britain and Australia. If Lynn's site had said "go to this link to learn the shocking truth about [he who must not be named]" then the Canadian court would have been more likely to have found the publication of the link to be defamatory. In this case, though, all the link is, is the equivalent of an academic citation to the original source material for the material that was actually quoted.

A PDF with the entire Crookes decision is found here, at the following hyperlink:


Trying to find American cases is a little more difficult - here is a hyperlink to a US COURT OF APPEALS FOR THE ARMED FORCES decision in an unrelated matter (actually a child pornography case under the Uniform Code of Military Justice) that relates to the publication of a hyperlink being held to not equal publication of the information contained in the hyperlink:


On the other hand, we have a federal statute that is clear and on point - 47 U.S.C. 230 (c) (1), which is one part of the 1996 Communications Decency Act that survived judicial review. Section 230 provides:

“No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

- and just in case someone thinks a state or local law has to be checked, the answer is no - that's covered by 47 U.S.C. 230 (e) (3), which states:

“No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section."

It is clear that Dr. Lynn Conway should be able to use a hyperlink as a citation to a site that arguably contains defamatory material, as the source of the non-defamatory material contained on her own site.

There is a California case interpreting the language of the statute, Barrett v. Rosenthal (40 Cal. 4th 33; 146 P.3d 510; 51 Cal. Rptr. 3d 55; 2006 Cal. LEXIS 13529), which makes it clear that the federal law is not limited to protecting ISPs but is also applicable as protection for so-called "distributors."

I would suggest that Peter M. Jacobsen do a little basic research on United States and Canadian law before sending threatening "lawyer letters" on behalf of his clients that appear to have no legal basis.

But let's get to the bottom line here: We know that [he who must not be named] performs harmful reparative therapy on children. I have seen some of the results of his so-called therapy on television, and I am sorry to say that on the basis of the mental suffering caused by his abusive treatments, this is a person whose credentials should be revoked, strictly on the basis of the fact that his treatments are abusive of the children he is purporting to treat. It is an outrage that this man has any connection with the American Psychiatric Association, much less a chairmanship of a committee rewriting a portion of the DSM. I may only have a BA in psychology and a JD (you can call me "Dr." too, but that's not customary), and I am not likely to ever be called upon as an expert witness on matters of child abuse, but I know the results of child abuse when I see them. And Kenneth Zucker's reparative therapy on children with gender identity issues *is* child abuse. Truth is an absolute defense under the law of defamation, so it does not bother me to make the allegation of child abuse solely on the basis of having seen television clips of children that Zucker (Darn, I mean [he who must not be named]!) has treated.

What [he who must not be named] and his lawyer are doing here is prestidigitation - they are trying to paint Professor Conway falsely with a "libel" brush in an attempt to discredit her, to take the focus off the abuse this man is foisting off on the public as treatment for children exhibiting a cross-gender identity, regardless of how the child ultimately resolves the identity issue as an adult.

Professor Conway deserves our support. I hope she continues to speak out on issues that affect us. And I hope that she is not deterred by threats of legal action that are intended to discredit her falsely.

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