Speak Out In Public Author: Robert Finn (The Scientist, Vol:10, #6, p. 15, March 18, 1996)
In today's increasingly litigious society, anyone can become the target of a lawsuit. A potential libel action, for example, should not only be the concern of publishers and journalists. The threat of a libel suit is now a reality for anyone, including scientists who choose to speak out publicly-or even write letters to the editor-on controversial issues.
A libel suit can come without warning when an ordinary scientist is engaged in ordinary scientific activities. For example, Arnold S. Relman, editor emeritus of the New England Journal of Medicine, was quoted in a newspaper article criticizing the advertising practices of a for-profit hospital. Victor J. Stenger, a professor of physics at the University of Hawaii at Manoa, incorrectly described Israeli psychic Uri Geller's legal history in a book debunking paranormal phenomena. And Jan Moor-Jankowski, as editor of the Journal of Medical Primatology, merely printed a letter from an animal activist opposing a pharmaceutical company's experiments.
Each of these scientists soon found himself faced with the dreaded prospect of defending himself in a libel suit. All three eventually prevailed in court, or the charges ended up being dropped. But defending themselves was a painful, distracting, and often expensive process. The lessons they learned are instructive to all scientists who write or make public statements.
CASE DISMISSED: "I think they knew they had no case," says Arnold Relman of the suit files against him by a for-profit cancer-treatment center.
Sims notes that legal bills for a libel defense can quickly mount up. Even if the case is dismissed quickly, one can easily run up $20,000 to $60,000 in costs, and if a case drags on, it can go into the millions. Libel insurance can cost publishers thousands of dollars per year, and is an additional factor in today's high cost of publishing.
ERRATUM SHEET INSERTED: Victor Stenger took measures to correct his text but was sued nonetheless.
The legal axiom goes, "Truth is an absolute defense against libel," and indeed no true statement of fact can ever be libelous, and neither can statements of judgment or opinion, which are neither true nor false. Both these principles were put to the test in the landmark case that Immuno AG (a pharmaceutical company based in Austria) brought against Moor-Jankowski. The former editor of the Journal of Medical Primatology was then director of New York University's Laboratory for Experimental Medicine and Surgery in Primates. He has recently founded the Center for Academic Freedom, based in New York City.
As chronicled in the book The Monkey Wars by Deborah Blum (Oxford University Press, 1994) and in interviews with Moor-Jankowski and his attorney Philip Byler (now at the New York firm Layton, Brooks and Hecht), it all started in January 1983, when Shirley McGreal wrote a letter to the Journal of Medical Primatology objecting to some experiments proposed by Immuno AG.
McGreal is an animal activist and founder of the Charleston, S.C.-based International Primate Protection League. She learned that Immuno planned a study of non-A/non-B hepatitis in African chimpanzees, at a research station in Sierra Leone. Based on what she learned about the experiments, and the conclusions she drew from these facts, she had several objections. Among them were that the experimenters would be using wild-caught chimpanzees, whose numbers are dwindling; that they would release them after experimentally infecting them with hepatitis; and that the released chimps might transmit the disease to other animals.
With McGreal's letter to the editor in hand, Moor-Jankowski tried to elicit a rebuttal from Immuno's research director. Instead, he soon received a letter from Immuno's lawyers asserting that McGreal's statements were inaccurate and reckless. It read, in part: "We would also like to advise you that our review of Dr. McGreal's letter indicated that it is not a fair comment regarding our client's activities, and should you proceed with publication, without giving us the opportunity for a meaningful response, we shall be compelled to take whatever actions we deem necessary to redress our client's rights."
But though Moor-Jankowski waited until December 1983 before publishing McGreal's letter (S. McGreal, J. Med. Primatol., 12:280, 1983), Immuno never offered a substantive response to her charges. During that time Moor-Jankowski himself came to be critical of Immuno's planned experiments, and he was quoted to that effect in New Scientist (N. Heneson, 100:165, 1983).
Immuno then brought suit against a number of institutions and individuals, including McGreal, Moor-Jankowski, the Journal of Medical Primatology, New Scientist, the distributors of both publications, and NYU. Although Immuno ultimately dropped plans for the experiments, it continued pursuing its libel cases. In response, almost all the defendants or their insurance companies chose to settle rather than fight.
The exception was Moor-Jankowski. Born in Poland, he explains his decision to persist by saying, "As a very young boy I fought the Germans for freedom. I didn't want to stand up for muzzling."
It cost him seven years and about $2 million in legal fees ($200,000 of which Moor-Jankowski paid himself), and it generated an eight-volume legal record as the case cycled among the New York County Supreme Court, the New York State Court of Appeals, and the U.S. Supreme Court. In the end, Moor-Jankowski was vindicated. The Court of Appeals ruled that the letter was a combination of truthful factual statements and opinion, both of which are protected by the First Amendment.
HE CHOSE TO FIGHT: Jan Moor-Jankowski did not settle his libel case out of court because "I didn't want to stand up for muzzling."
"When you're talking about a letter to the editor, you're talking about what the Court of Appeals in New York correctly viewed as a forum to air grievances and views on the part of the public," says Philip Byler, Moor-Jankowski's attorney. "It's a precedent because it's a . . . decision which adhered to a broad constitutional protection of opinion."
Byler maintains that the decision makes clear that "you do have a right to express views that are not orthodox. You do have a right to express viewpoints which over the course of time will be shown to be wrong-minded. A letter to the editor is a forum for opinion, and quite frankly people should feel the leeway to express themselves without the fear that sometime in the future, in the libel courtroom, where money damages are at stake, they will be shown to be wrong. That doesn't say that you have a right to make false, defamatory statements that are really hurtful to somebody."
Byler's advice to authors of letters to the editor: Clearly separate factual statements from statements of opinion. "To the extent you are making a statement that's based on inference or speculation or conjecture, use words that indicate that." Byler believes that as editor of the journal, Moor-Jankowski more than fulfilled his obligations by deliberating a considerable time before publication, all the while soliciting a substantive response from the criticized party.
For a statement to be libelous, the offended party must suffer actual damage, notes Sims. "It's got to be really harmful, not just something that offends somebody's sensibilities, but something that harms their reputation."
This principle came into play in Cornell University astronomer Carl Sagan's suit against Apple Computer Inc. of Cupertino, Calif. Apple had been using "Carl Sagan" as its internal name for a new computer. Sagan got wind of this, and his lawyers sent Apple a letter instructing the company to cease and desist. In response, a project manager changed the computer's name to BHA, an acronym for Butt-Head Astronomer. Sagan sued Apple in the Central District of California for, among other things, libel, infliction of emotional distress, and improperly using his name.
Judge Lourdes G. Baird dismissed the libel portion of the suit, holding that "one does not seriously attack the expertise of a scientist using the undefined phrase 'butt-head,' and that a reader aware of the context would understand the project manager was retaliating in a humorous and satirical way." Sagan, who declined to be interviewed for this article, later reached a settlement with Apple on the other aspects of the suit.
But even when a statement is both false and harmful it still may not be libel, says Sims. "If it criticizes one particular event, in many states it's immune from prosecution under the single-instance rule. If you say that a doctor screwed up an operation, that's not libelous. If you say that he's a terrible surgeon, it might be. Similarly, if you're writing a review of a scientific article and say that scientist miscalculated the numbers... that's not going to be actionable. If you said, on the other hand, that somebody's research was fraudulent, it certainly would be."
For individuals judged to be public figures, a statement must not only be false but also must be made with malice or with "reckless disregard for the truth." Explains Sims: "All 'reckless disregard' means is that you actually,subjectively entertained doubts and went ahead and published anyway. If you believe what you are saying, as a matter of law you cannot-if the jury or the judge believes you-lose a libel case."
This would likely have been a factor had Uri Geller's suit against Victor Stenger not been dismissed before it ever got to trial. In his book Physics and Psychics: The Search for a World Beyond the Sensesm (Buffalo, N.Y., Prometheus Books, 1990), Stenger stated of Geller that "... he was once arrested for claiming his feats were performed with psychic power." In fact, Stenger had drawn an incorrect conclusion from some of his research material. The accounts Stenger relied upon mentioned that Geller had been "brought to court," but it had been in a civil case, and he had never been arrested.
Once Stenger realized his error, he and his publisher voluntarily inserted an erratum sheet and changed the wording in later printings of the book. Nevertheless, Geller sued Stenger for libel in Florida, London, and Hawaii.
Stenger is convinced that despite his error he would have prevailed had the case come to trial. "You can say something that is incorrect if at the time it was to the best of your knowledge correct," he explains. "That never came up, because as often happens in legal cases, you get out on technicalities before the merits are really discussed."
Geller's Florida and Hawaii cases were dismissed because he brought them after those states' statutes of limitations had expired. And his case against Stenger in London was dropped as part of a global settlement of several related cases between Geller and the Amherst, N.Y.-based Committee for the Scientific Investigation of Claims of the Paranormal.
Typically, libel law says that only a corporation or a living person can be disparaged. But in 12 states (Alabama, Arizona, Colorado, Florida, Georgia, Idaho, Louisiana, Mississippi, Ohio, South Carolina, South Dakota, and Texas) it has recently become possible to libel a fruit or vegetable. Farmers in those states can now sue those who make false claims about agricultural products.
These "agricultural disparagement" laws were apparently inspired by a 1989 report from the New York City-based Natural Resources Defense Council (NRDC) linking the apple additive Alar to cancer. Growers turned to state legislators in an effort to fend off criticism by NRDC and other watchdog organizations. Lawrie Mott, senior scientist at NRDC's San Francisco office, calls them "veggie hate-crimes laws," and says of the states that have passed them, "They're attempting to silence those people who have raised questions about the food supply.
"It's not clear that these laws are constitutional," Mott continues. "If it's based on 'reliable scientific fact,' it's not considered disparagement under the law. That's a very vague term, and one that's primed for litigation. But the ultimate advice I would have [for scientists] is: If what you say is accurate, stick to your guns. If you have scientific concerns about the safety of the food supply, don't be silenced by people with obvious interests in keeping it quiet."
LETTUCE LIBELED? Lawrie Mott describes the "agricultural disparagement" laws as "veggie hate-crimes laws".
One thing is certain: Legal liability issues in electronic communication are in a highly unsettled state. For example, there is no agreement on the critical issue of whether service providers such as CompuServe and America Online should be thought of as publishers, and hence at least partially responsible for the content of their service, or "common carriers" and thus no more responsible than is the phone company for conversations over its wires.
Another recently developed legal scheme for silencing criticism of corporate practices has come to be called the "SLAPP suit." SLAPP stands for Strategic Litigation Against Public Participation. The law has long allowed just about anyone to sue anyone for anything, and a SLAPP suit often takes the form of an unwinnable libel suit that is intended to harass and deplete the resources of critics.
Arnold Relman, a longtime critic of what he calls the "medical-industrial complex," found himself the target of a what he considered a harassing libel suit after a reporter for the Dallas Morning News asked for his comment on some newspaper and radio ads placed by a for-profit cancer-treatment center, the Zion, Ill.-based Cancer Treatment Centers of America. (This is not technically a SLAPP suit because Relman's statement was quoted in a newspaper account and not made in the course of a public proceeding.) According to Relman, the ads implied that the center was able to help people with advanced cancer who had failed to respond to conventional medical treatments.
"I said [to the reporter] I didn't know anything about the company, hadn't heard of it before, but on the face of what he read me those ads were misleading and they were unethical. . . . I said that . . . it was unfortunate that they would hold out this kind of hope to people with advanced metastatic cancer," recalls Relman.
The center sued Relman and several other physicians quoted in the article (J. Weiss, Dallas Morning News, June 21, 1992, page 1A). A Texas court issued a subpoena to Relman requiring that he give a deposition at a lawyer's offices in Boston. But Relman's lawyers successfully argued that the Texas court had no jurisdiction in Massachusetts, and the case was ultimately dropped.
"I think they knew they had no case," comments Relman. "I was expressing an opinion, and what I said as an opinion was true. I didn't say it with malicious intention. I didn't even know the company. I had nothing personal against them. I was just talking on a matter of public policy and medical ethics.
"It seems to me that honest and well-intentioned scientific disputes ought to be off limits to litigation," continues Relman. "Many scientific advances are made by the resolution of disputes, the correction of well-intentioned or honest error by better data, new information... It ought to be possible for scientists to express honest disagreements, to make honest mistakes... without involving them in litigation.... I think it would be a terrible damage to the scientific process if lawyers began to get involved in scientific debates."
Robert Finn, a freelance science writer based in Long Beach, Calif., is online at email@example.com.