E-mail:
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Dissent,
skepticism, and open-mindedness to unwelcome discoveries are critical to the scientific
process, as well as to the spirit of the First Amendment. Yet in some areas of public health science –
particularly applied research on certain environmental and public health
problems – the possibility of vigorous debate has too often been chilled and
suppressed when it cuts against the interests of those with the stakes and
resources to control the message.
Dozens of highly
respected public health researchers have found themselves in the bull’s-eye of
legally-backed attacks when their scientific speech is unwelcome to powerful
economic actors.
When Dr. Paul Fischer published research in JAMA revealing
that children preferred Joe Camel (a tobacco logo) to popular children’s characters
like Mary Poppins, the tobacco giant, R.J. Reynolds took aggressive legal
action. They initiated scientific
misconduct charges against him, filed subpoenas through third-party litigation seeking
every scrap of paper in his files, including the confidential names and
addresses of the children in his study, and ultimately acquired this data
through a State Open Records Act request.
Dr. Herbert Needleman was also drawn into a long scientific
misconduct proceeding over his research revealing correlations between exposure
to lead in children and below-mean IQs.
This time it was the lead industry that initiated the claim. Both sets of attacks were vigorous,
illegitimate, and arose from those with the stakes and resources to endeavor to
shut down the “truth machine.” And,
sadly, as my colleague Tom McGarity and I document in Bending Science, and Professors Doremus and Kuehn document in complementary articles, these
accounts appear to only be the tip of the iceberg.
In this
effort to kill the messenger (or, in this case, ruin the career of a public
health scientist), the legal system operates more like an accomplice than as a
protector of scientific speech. When a scientist
conducts research for the private sector they are usually asked to sign
nondisclosure contracts which, when violated, present credible threats of multi-million
dollar damage suits if the scientist announces an unexpected finding or publishes
against a sponsors’ wishes. Independent researchers, like Drs. Fischer and
Needleman, who produce “bad news” for well-heeled economic actors have found
themselves silenced (or at least muffled) by law suits and claims that threaten
their scientific reputation.
Tolerating
the chilling of legitimate scientific dissent and unwelcome discoveries leaves democracy
impoverished. Not only is debate inhibited,
but the actual supply of research is diminished and lopsided in favor of those
who have the financial resources and stakes to engage the legal system. Some researchers report they avoid studying certain
topics altogether for fear said topic will raise the ire of a resourceful party.
While the
First Amendment cannot come to the rescue of all scientific speech, it is time
to think more creatively about the ways the law might be a productive rather
than destructive force in encouraging open debate in areas of public health science.
Wendy E. Wagner is Joe A. Worsham Centennial Professor, University of Texas School of Law. You can reach her by e-mail at WWagner at law.utexas.edu