Judge Throws Out Robert Malone's Defamation Lawsuit Against Washington Post

Dr. Malone does not plan on appealing.
Judge Throws Out Robert Malone's Defamation Lawsuit Against Washington Post
A man walks into the Washington Post building in Washington on May 16, 2019. (Eric Baradat/AFP via Getty Images)
Zachary Stieber

Dr. Robert Malone's defamation case against The Washington Post has been rejected by a federal judge.

The Post's allegedly defamatory statements, including saying that Dr. Malone's "discredited claims have bolstered a movement of misinformation" and have caused "damage," aren't actionable because they're "opinions in a scientific debate," U.S. District Judge Norman Moon said in his ruling.

"All the statements at issue are part of the scientific debate over the efficacy of COVID-19 vaccines," said Judge Moon, appointed under President Bill Clinton.

The ruling was similar to the language offered in the Post's motion to dismiss, which said that the statements were opinions that couldn't be disproven and, even if they were factual statements, weren't produced with malice.

Steven Biss, a lawyer representing Dr. Malone, had opposed that position, telling the court in a filing that saying that a professional has spread misinformation isn't a matter of opinion.

"Whether Dr. Malone lied, published falsehoods, committed malpractice, or created dangerous risks to patients and the public are also capable of being proven false," Mr. Biss said in the late 2022 filing. "These accusations are universally actionable."

Mr. Biss didn't respond to an inquiry. Repeated inquiries to Mr. Biss have gone unreturned apart from his wife answering once and relaying that he's in a coma, Dr. Malone told the court.

No Plan to Appeal

Dr. Malone said that he doesn't plan to appeal.

"This was always a low probability of success, given Sullivan," Dr. Malone told The Epoch Times.

In its 1964 ruling in New York Times Co. v. Sullivan, the U.S. Supreme Court ruled against a public official who sued The New York Times over an advertisement it ran that contained inaccurate claims about police officers in Alabama.

Justices said that to establish defamation, a public official must establish that a statement was made with "actual malice" or "knowledge that it was false or with reckless disregard of whether it was false or not."

Public officials include public figures, courts have ruled. Both parties agreed that Dr. Malone is a public figure.

Judge Moon said that Dr. Malone's claims would fail even if the Post's statements were actionable because of the standard established in the ruling in the Sullivan case.

"Plaintiff has not alleged facts supporting actual malice. Rather, fairly read, Defendant’s story provides a thorough account of the science evaluating the efficacy of COVID-19 vaccinations," the judge said.

The Post didn't respond to a request for comment.

Dr. Malone's other defamation case is still pending. He sued several people, including Dr. Jane Ruby, for defamation in 2022 in the same court.

Judge Moon in that case, notified of Dr. Malone's need to find new counsel due to Mr. Biss's condition, recently delayed a hearing on pending motions to dismiss.


Dr. Malone in 2022 sued the Post over an article that claimed he was offering misinformation when he said during a speech that the COVID-19 vaccines weren't working against the Omicron virus variant.
The Post pointed to U.S. government studies that analyzed weeks of data from the Omicron era and estimated that a booster shot of the vaccines on top of a primary series was protective against severe disease. A third study alleged that a primary series was protective against infection and death in the early days of Omicron.

The complaint countered by pointing out how many people, including President Joe Biden, have become infected despite being vaccinated.

The paper also said Dr. Malone "has emerged as one of the most controversial voices of the movement against coronavirus vaccines and health mandates" and that his "claims and suggestions have been discredited and denounced by medical professionals as not only wrong, but also dangerous."

Dr. Malone, who helped invent the technology used in the Moderna and Pfizer shots, has expressed concerns that were later widely adopted, including flagging the possibility of immune imprinting and highlighting how the vaccines provide poor protection over time, with some indications that the shielding turns negative.

In its motion to dismiss the suit, lawyers for the Post said the statements about Dr. Malone are "incapable of objective proof, and are therefore constitutionally protected, nonactionable opinion."

"Even if the statements were not protected opinion, they would still fail to state a claim because, as a matter of law, they are substantially true," the lawyers said, pointing to statements from the U.S. Centers for Disease Control and Prevention in favor of vaccination.

Dr. Malone "cannot establish it was materially false to say his views disputing vaccine efficacy were 'misinformation,'" due to the guidance, the lawyers claimed.

Dr. Malone also couldn't prove that the Post acted with malice when it published the statements, the lawyers said, citing the Sullivan decision.

Mr. Biss said in a competing brief that Dr. Malone alleged that the Post knew from prior reporting that Dr. Malone's statements were factual and correct and that its accusations of misinformation and fraud were false.

"Second, given Dr. Malone’s stature, which was well-known to [the Post]," he wrote, "the accusations of disinformation and misinformation are so highly improbable that only a reckless person would put them in circulation."