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      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@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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