Tuesday, October 14, 2014

The Suppression and Chilling of Legitimate Dissent in Public Health Research

Guest Blogger

Wendy Wagner

For the conference on Public Health in the Shadow of the First Amendment

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

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