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PubPeer Wins Appeal on Anonymous Comments

The Michigan Court of Appeals rules that anonymous commenters on the post-publication peer review website are protected under the First Amendment.

Dec 7, 2016
Joshua A. Krisch, Bob Grant

Attorney Bill Burdett (standing), representing “John Doe” in Fazlul Sarkar vs. John Doe, made oral arguments in October 2016 to judges Colleen O’Brien (left) and Elizabeth Gleicher (right) as Alex Abdo (seated), the ACLU lawyer representing PubPeer, looked on.BOB GRANT

The Michigan Court of Appeals issued an opinion in favor of PubPeer today (December 7), ending litigation that pitted the post-publication peer review website against Fazlul Sarkar, a former Wayne State University pathologist who was the subject of research misconduct allegations posted by anonymous commenters on the forum. While the court ruled that Sarkar is still entitled to pursue an independent defamation claim, it affirmed that the online commenters’ identities are protected under the First Amendment.

“This ruling is a critical victory for freedom of speech and scientific inquiry,” Alex Abdo, an attorney with the American Civil Liberties Union (ACLU), which defended PubPeer—as well as anonymous commenters Jane and John Doe—wrote in a statement emailed to The Scientist. “Scientists who anonymously review the work of their peers should not have to fear retribution for exposing the anomalies they find, and the court rightly agreed. Without the breathing space that anonymity provides, free speech and scientific inquiry would suffer.”

The ruling comes on the heels of a December 1 decision by the court to deny the ACLU’s motion to enter into the record the full report from an internal Wayne State University investigation of Sarkar’s work. The Scientist was the first to bring this report to light; the results of the university’s investigation reveal that at least some of the anonymous allegations leveled against Sarkar were likely legitimate. Nicholas Roumel, an attorney at NachtLaw PC representing Sarkar, praised the court’s decision to keep the report from the record. “I’m gratified that the court recognized that this was not a proper action to try to add the investigation report to the appellate record,” he told The Scientist last week.

Update (December 7): “It sucked” that the court did not side with Sarkar, Roumel told The Scientist today, noting that he had not yet had a chance to review the decision in full. Generally speaking, he said, the court’s opinion is “in line with the trend of these cases all over the country.”

“I was hoping we could persuade the court that Michigan should not follow the lead of other courts across the country,” Roumel said. “I guess, if you’re going to lose a case, there’s worse things than losing it to the ACLU, so my hat’s off to them.”

Asked about the next steps for he and Sarkar, Roumel added: “I have no idea what we’ll do next.”

 

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