LIBEL CONCERNS ARE A REALITY FOR SCIENTISTS WHO 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.
Arnol Relman
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. The First Amendment to the United States Constitution provides
powerful-but not impregnable-protection to anyone who speaks on
controversial topics. "Libel is a civil action, a tort action that you
can bring against somebody claiming that a statement, either written
or oral, is false and defamatory and caused you injury," explains
Charles S. Sims, a noted libel attorney and partner at Proskauer Rose
Goetz and Mendelsohn, a New York law firm. (This firm handles libel
matters for The Scientist.)
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.
Victor Stenger
ERRATUM SHEET INSERTED: Victor Stenger took measures to correct his
text but was sued nonetheless. "If you are sued, you need to check
with your employer or your institution or your professional
group-anybody who might consider themselves morally bound to come to
your aid," advises Sims. "And you also need to look at your home
insurance policy. An astonishing number of home insurance policies
have clauses which turn out to be usable to force an insurance company
to pay for a defense."
Landmark Case
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. Jan Moor-Jankowski
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.
Public Figures
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.
New Sources Of Trouble
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."
Lawrie Mott
LETTUCE LIBELED? Lawrie Mott describes the "agricultural
disparagement" laws as "veggie hate-crimes laws". Additionally, new
modes of scientific communication-E-mail, Usenet newsgroups, and the
World Wide Web-have become further sources of libel-related worries.
As Dan L. Burk, an assistant professor at Seton Hall University's
School of Law, writes: "For the first time in history, global computer
networks have in essence made everyone a publisher-with a few
keystrokes, ordinary citizens can make their opinions known to
thousands of others... This is an exciting development for individual
freedom of expression, but there is a dark side to this unprecedented
opportunity: Such computer-mediated communication may also expose
ordinary citizens to liability on an unprecedented scale" (D.L. Burk,
The Scientist, April 3, 1995, page 12).
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 else 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 finn(a)nasw.org.
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(The Scientist, Vol:10, #6, pg.15-16 , March 18, 1996)
(Copyright ) The Scientist, Inc.)
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