An open letter to David Kirby and Dan Olmsted about the Kathleen Seidel subpoena

Dear Mr. Kirby and Mr. Olmsted:

You are both journalists. I realize that neither of you at present work for the traditional press and that both of you seem to devote yourselves mainly to blogging (Mr. Olmsted at the Age of Autism and Mr. Kirby at the Huffington Post), but I have to believe that you both still consider yourselves to be at heart journalists. That is why I am writing this to you and posting it publicly on my blog. If you’ve ever read any of my posts on this issue, you probably realize that I strongly disagree with your positions and that at times I have been quite harsh in my judgment of articles you have both written. I am, however, hoping that for this one issue, upon which (I hope) we can all agree that you will for the moment put that aside and consider what I have to say. I am appealing for your condemnation of what has been done to autism blogger Kathleen Seidel.

You may have heard about Kathleen Seidel’s situation, in which she has been subpoenaed based on her blogging. I realize that you and Kathleen strongly disagree over whether thimerosal-containing vaccines or vaccines in general themselves are responsible for the “autism epidemic.” Indeed, you may be aware that Kathleen has spent considerable time and done truly prodigious work in investigating the claims and activities of people who champion the claim that vaccines cause autism and found out some rather disconcerting information, for example about the father-and-son team of Dr. Mark Geier and David Geier, specifically about their Lupron protocol. Even so, I hope that you will put yourself in her place for a moment, because, at the moment, you are both very much like she is in that you are primarily bloggers these days. Imagine how you would react if what happened to Kathleen happened to you.

What happened to Kathleen, of course, is that a lawyer representing vaccine injury plaintiffs Rev. Lisa Sykes and Seth Sykes against Bayer and other companies, namely Clifford Shoemaker, subpoenaed Kathleen, her financial records, records related to her blog, and her e-mails with other bloggers. His rationale appears to be a paranoid belief that somehow Kathleen is a shill for big pharma or the government. She clearly isn’t (indeed the very suggestion is ludicrous), and never mind that, even if she were, she is not a party to the case. In considering how you would react if this were you being subpoenaed by, say, a vaccine manufacturer or the CDC, you should know that Kathleen is not a party to the lawsuit. You should further know that there is no specialized knowledge that she possesses that is needed for the plaintiffs to pursue their case, and she is not accused of doing anything illegal or defamatory. Finally, you should look at the text of the subpoena and consider just how broad it is. Finally, you should look at the post by Kathleen that appears to have provoked this subpoena, a post entitled The Commerce in Causation, which looked at how Shoemaker makes his money representing “vaccine-injured” clients.

The subpoena was issued within hours after that post.

Let lay it out for you just what the stakes are. Ask yourself: What would your reaction be if, hours after you published a post or article critical of, say, Julie Gerberding, the CDC’s lawyers issued a subpoena demanding “all documents pertaining to the the setup, financing, research, and maintaining” your blogs; bank statements, canceled checks, online or offline donation documents, and tax returns; all documents (e-mails, notes, memos, letters, etc.) pertaining to communications related to your blogs; all such documents related to your communications with autism activist groups (Kathleen’s subpoena demands any communication she may have had with the government or pharmaceutical companies); all such documents related to your communications with religious groups (“Muslim or otherwise”); and all e-mails with basically any blogger in her blogroll? No doubt you would see such a subpoena as a nakedly blatant fishing expedition and attempt to intimidate you–and rightly so, because that’s what it obviously is in Kathleen’s case. Indeed, the reaction in the overall blogosphere and the legal blogosophere to Shoemaker’s abuse of the subpoena privilege has been uniformly negative. For example, Eric Turkewitz, who writes the New York Personal Injury Law Blog, wrote:

Just to be clear here, this post isn’t about whether the underlying lawsuit is a good one or not. The suit apparently deals with whether mercury additives to vaccines caused the plaintiff’s autism. I haven’t read it. This is about going after the citizen-journalist for having the audacity to speak freely on a subject.

[…]

She has argued First Amendment protection and journalistic protection among other factors. I urge you to read the link above for her self-drafted motion to quash.

But there is one thing she didn’t do, and I suggest it here. She didn’t explicitly ask for sanctions. But that should not stop a judge from imposing them, even if the growing chorus of blogospheric condemnation makes Shoemaker rethink his strategy (and his Google reputation) and withdraw the outrageous subpoena.

Given that this subpoena is clearly an obvious attempt to silence Kathleen or, at the very least, punish her for her criticisms of Clifford Shoemaker and his activities, I am appealing to both of you to use your influence and position in the autism biomedical movement to protest this shameless action by Mr. Shoemaker. I am urging you to speak out against legal intimidation and thuggery and for the First Amendment right of the media, including bloggers, of freedom of speech. Your speaking out against Mr. Shoemaker’s despicable actions would carry even more force, because it is well known that you both strongly disagree with Kathleen’s position regarding whether vaccines cause autism. If both of you, who so strongly disagree with Kathleen’s conclusions, were to speak out, it would shame Shoemaker and his clients, the Sykes, beyond any condemnation that I or the rest of the blogosphere can provide. It would also demonstrate to those of us who disagree with you that, whatever our other disagreements, you do support the First Amendment for fellow citizen-journalists, regardless of their point of view on autism causation.

Walter Olsen of Overlawyered put it particularly well:

Should the subpoena somehow be upheld and its onerous demands enforced, it could signal chilly legal times ahead for bloggers who expose lawyers and their litigation to critical scrutiny.

Think about it this way. If a lawyer representing a plaintiff suing vaccine companies can get away with this, just imagine what abuses lawyer with the resources of a big pharmaceutical company or the government could perpetrate to silence blogospheric critics. Imagine what mischief they could cause by demanding the correspondence, e-mails, financial records, and contacts with religious groups from their critics. That would be you, Mr. Kirby and Mr. Olmsted.

Just think about it.

Sincerely,

Orac

ADDENDUM: Steve Novella also weighs in, and, as she has been doing, Liz Ditz keeps a running tally of blogospheric reaction and the amount of time since I posted my open letter that there has been no public reaction from Olmsted or Kirby. I will say that Kirby has responded to my e-mail and seems distressed at what Shoemaker has done. I can’t say any more than that other than that I hope he will express his distress publicly.