Libel and the Lab: Scientists and Defamation

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Scientists are increasingly involved with defamation suits as both defendants and plaintiffs. They have been sued over the content of peer-reviewed research articles in scientific journals. Although most of these cases were dismissed, one went to a jury trial, which ruled in favor of the defendant scientist. The threat of such legal action is cause for concern because it has the potential to intimidate scientists into silence, to the detriment of the research enterprise.

In other instances, scientists have filed suit against those who have harmed their reputations through brutal criticism in the popular media. The best-known case involved Michael Mann, a Penn State climate scientist whose work included a graph depicting a sharp increase in temperature in the twentieth century that became known as the “hockey stick graph.” A conservative think tank’s Web site was sharply critical of Mann’s working, calling him the “Jerry Sandusky of climate science” – in other words, comparing him to a convicted child molester. Much of the criticism in these cases stemmed from those representing vested commercial interests such as the fossil fuel industry.

Courts could reduce the threat of legal action over peer-reviewed articles by recognizing a scientific debate privilege. Some courts have noted that scientists frequently discuss unsettled matters, and that conclusions can change as science advances. It is thus appropriate to deem the content of research articles as opinion rather than as statements of fact. The plaintiff would be unable to prove falsity, a necessary element of libel, thus shielding the scientists from legal action. However, the First Circuit of the U.S. Court of Appeals, whose jurisdiction includes Rhode Island, has declined to recognize such a privilege.

Criticism of scientists in the popular media is more problematic. The First Amendment protects most of this discourse, except when the criticism is made with knowledge of falsity or reckless disregard for the truth. The intent is to encourage unbridled debate. Ironically, the lack of restrictions has resulted in criticism that has intimidated some scientists into silence. There is social scientific evidence that harsh criticism is causing some scientists to self-censor, going so far as to avoid controversial lines of inquiry. In an attempt to allow many viewpoints to be voiced, courts have actually driven some from the public sphere.

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