Supreme Court Ruling Could Stifle Open Debate In Journals

Editors fear that a recent redefinition of `protected speech' could force them to stifle controversy in order to avoid lawsuits The freedom of scientists to candidly criticize their colleagues' theories in professional journals could be sharply curtailed by a Supreme Court ruling on libel handed down this past summer. Journal editors currently defending themselves in court against charges that their publications have been a party to a malicious attack fear that the high court decision could have a damaging effect on their cases. "People in Eastern Europe can now speak freely, but here, if you have millions, you can muzzle free speech," says Jan Moor-Jankowski, professor of medical research at New York University School of Medicine and cofounder and editor of the Journal of Medical Primatology. "That's the chilling effect of this Supreme Court ruling." Moor-Jankowski and other editors have long operated under the assumption, based on prior court decisions, that statements of opinion are virtually immune from libel suits. But in the 7-2 June 21 decision, Milkovich v. Lorain Journal Co., the Court ruled otherwise. Although the Court's decision is based on an article in the lay press, editors of scientific journals see its impact extending to their publications as well. And the ruling even raises questions about a journal's ability to publish any material that an outside individual or organization finds offensive or would prefer to suppress. In his majority opinion on the case, which involved criticism of the conduct of a wrestling coach by a sports columnist for an Ohio newspaper, Chief Justice William H. Rehnquist wrote that opinions can be libelous if they contain "false and defamatory" facts. And even though the newspaper columnist offered his own opinion of how the wrestling coach had acted during an investigation of an altercation at a match, Rehnquist reasoned, that opinion was based on implied fact. Columnists and others who make factual statements that defame someone can't protect themselves by saying that those statements represent their personal opinions, the ruling says. The case is expected to have a direct impact on the outcome of a prolonged battle involving Moor-Jankowski, the director of the Laboratory for Experimental Medicine and Surgery in Primates at the New York University Medical Center. He is the sole remaining defendant in a suit brought six years ago by Immuno A.G., a multinational firm based in Vienna, Austria, that manufactures biologic products derived from blood plasma. The company sued him, his journal, and Shirley McGreal, head of the International Primate Protection League (IPPL), because of her statements in a letter that appeared in the December 1983 issue of the journal. The letter referred to the company's plans to capture young chimps from the wild in Sierra Leone in West Africa and use them to test a hepatitis vaccine. McGreal claimed that Immuno's motivation in setting up a facility in Africa was to circumvent legal restrictions on the importation of chimpanzees, an endan- gered species, and that the company planned to return the vaccinated chimps to the wild. Immuno disputed McGreal's letter, claiming it was inaccurate, unfair, reckless, and defamatory, and took the journal to court. "The letter made us look like we were only after profits, regardless of the consequences," says Raymond Fersko, an attorney for Immuno. "Nothing could be further from the truth." In December 1989, the New York Court of Appeals affirmed a lower court finding that what Moor-Jankowski published was protected opinion and that most of McGreal's factual statements were "demonstrably true." That court is now being asked to review the case in light of the recent Supreme Court ruling. Briefs are due November 15. All of the defendants except Moor-Jankowski, including the British-based magazine New Scientist, which wrote about the controversy, settled out of court. McGreal's organization subsequently lost its insurance coverage. Immuno officials recently said that they have gotten permission from Sierra Leone to build an animal breeding facility. The litigation has affected Moor-Jankowski's personal and professional life. Being sued, says the 66-year-old primatology journal editor, is an "abomination, and I don't wish it on anyone." He has had to hire lawyers in Africa and Vienna, travel to Austria several times, and sit through countless proceedings. It has also been expensive. "Initially, I had to fight the battle abroad myself. It's cost me $70,000 out of my own pocket, and it's been going on six years," says Moor-Jankowski, who took out loans against his real estate holdings to raise the money. His legal expenses have amounted to well over $1 million. (The journal's insurance company is expected to pick up most of the tab at the end of the trial, according to Moor-Jankowski's attorney, Phillip Byler. Still, Moor-Jankowski intends to keep fighting. "I'm certain I'm going to win," he says. In its June decision on the Ohio case, the high court established different levels of opinion, some of which should not be considered protected speech. "The statement, `In my opinion Jones is a liar,'" wrote Rehnquist, "can cause as much damage to reputation as the statement, `Jones is a liar.'" However, the chief justice added that loose, figurative, or hyperbolic language is protected. For example, "In my opinion Mayor Jones shows his abysmal ignorance by accepting the teaching of Marx and Lenin," is constitutionally protected from libel suits, Rehnquist said, "because it does not contain a provably false factual connotation." The ruling on protected speech now sends the case back to the Ohio courts. To win the case, the Supreme Court said, the coach must prove that he didn't lie about his conduct during an investigation of the altercation. Officials at the Libel Resource Defense Center in New York, a media-funded clearinghouse that monitors developments in libel and privacy law, believe that the ruling will lead to full-scale trials for many libel cases that once would have been dismissed early on. Many journal editors find that disturbing. Daniel Koshland Jr., a professor of biology at the University of California, Berkeley, and editor of the journal Science, says, "Of course, someone who is maliciously attacked on unfair grounds should have some redress. But the ruling adds to an already difficult situation caused by the high cost of libel suits and the uncertainty of the judicial process." Koshland cited one case several years ago that Science settled out of court not because it felt it would lose, he says, but because the cost of going to trial was prohibitive. Other editors fear the ruling could result in self-censorship. "If by any chance an editor were held libelous for a letter, it would have a sobering effect and might cause us to re-evaluate our overall policy of printing letters to the editor," says William Glaze, professor and chairman of environmental science and engineering at the University of North Carolina, Chapel Hill, and editor of Environmental Science and Technology. The ruling may also lead him to seek added protection by subjecting letters to the editor to the same peer review now performed for research articles, he adds. Many state courts have already ruled that statements of opinion are immune to libel lawsuits. But in some cases, it's unclear whether such rulings were based on state or federal constitutional law. The Milkovich ruling will now force those courts to determine whether state constitutions implicitly afford such protection. That's what the New York court is being asked to decide in the Immuno case. That case is hardly the only example of how treacherous the waters of open scientific debate have become. Last March, physics professor Michael Salamon and his associates at the University of Utah published a study in Nature that casts doubts on cold fusion. Soon after, Salamon received a letter from an attorney hired by one of the scientists--at the same university--who had announced the startling findings in March 1989, threatening him with legal action if he didn't retract the study. So Salamon went to university president Chase Peterson. To his chagrin, Salamon says, he was told not to assume the university would defend him and the other scientists. Peterson confirms telling Salamon that the state attorney general's office told him initially that the state, which handles legal issues for state institutions, could not defend one faculty member against another. When Salamon also found out that the attorney who wrote the letter had been paid by the University of Utah for his work, he was furious. "Legal proceedings have no place in the scientific process," he fumes. Once a local reporter was tipped off about the litigation threat, and wrote about it, however, the positive response was overwhelming. Fellow scientists and university professors throughout the country called and offered moral and financial support, he says. A week after Salamon had raised the question, the university and the state attorney general assured Salamon and his coauthors they would be legally protected. Despite the outcome, Salamon says, it was difficult to get any work done during that period. "Even if the lawsuit was frivolous, it still took up time and energy," he says. Scientific journals have never been exempt from outside pressure to influence their contents. But Milkovich could make it easier to exert pressure by its erosion of the principle of protected opinion. One recent case involves efforts by a company to prevent publication of a study that questioned the efficacy of one of its products. In 1988 General Dentistry, a peer-reviewed journal published by the American Academy of General Dentistry, accepted an article submitted by Ken Paulcanis, then chairman of periodontics at Virginia Commonwealth University, on a study that found a particular toothpaste was an ineffective plaque fighter. Paulcanis received $75,000 from Vipont Pharmaceuticals Inc. for the study and other work. In November 1988 Vipont filed suit in a Richmond, Va., circuit court, against the university, Paulcanis, and his coauthors. The company claimed ownership of the study and sought damages that included the cost of the grant. After the courts dismissed the case, Vipont filed an amended suit in January 1989 in the same court, asserting that Paulcanis had breached his contract and that therefore the research should have been stopped. The company also claimed that publication of the article would hurt the company's reputation. The university and the dental researchers denied all the allegations, and countersued. Even so, the editors of General Dentistry suspended publication of the study pending the court's resolution of the matter. With no court date in sight, however, the study was finally published in January of this year (General Dentistry, 38[1]:17-20). Along with the study, the journal ran a letter from Vipont. The university and Vipont recently negotiated an out-of-court settlement of the January 1989 suit, which both sides declined to discuss. Paulcanis says he has learned a lesson about the risks of publication. "Each time you write an article and present papers, you open yourself up to criticism among your peers," says Paulcanis, now assistant dean at the University of Alabama School of Dentistry. "But when the criticism is coming from attorneys who are threatening you with litigation, that's much more upsetting." Cathy Sears is a contributing editor to American Health magazine.

Supreme Court Ruling Could Stifle Open Debate In Journals

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