A Ruling Worth Reading

On October 22nd, District Judge Kenneth Bell tossed a $1 billion defamation suit against Elsevier. At issue was a 2021 paper finding an air purifier product didn’t perform as well as promised. The air purification claims were used by the manufacturer to drive sales during the COVID-19 pandemic.

You can get a good overview from coverage in Retraction Watch, but I want to focus on the judge’s ruling, which does a nice job outlining a few major elements of scientific claims, journal review processes, and how science can work without resorting to lawsuits. The ruling is available here.

Here are the portions I found worth fishing out for you. I have dispensed with the legal references to aid readability, but they’re in the ruling if you want them:

Elsevier journals . . . use peer review as part of the publication process. Peer reviewers have no ongoing relationship with Elsevier and generally receive no payment; rather, the journal editors issue one-off invitations to potential peer reviewers to review articles based on the reviewers’ areas of expertise. . . .

Scientific conclusions often straddle the bounds of the fact-opinion divide. . . . scientific inquiry by its nature involves engagement with “empirically verifiable facts,” but the conclusions that scientists draw from those facts are “tentative and subject to revision, because they represent inferences about the nature of reality based on the results of experimentation and observation.” Accordingly, to encourage and safeguard scientific discovery, authors’ statements of scientific analysis and conclusion cannot be grounds for defamation, even if the “facts” or conclusions can be challenged as false or scientifically flawed. Indeed, the remedy for a plaintiff that disagrees with scientific research is for other scientists to “respond by attempting to replicate the described experiments, conducting their own experiments, or analyzing or refuting the soundness of the experimental design or the validity of the inferences drawn from the results,” leaving “the trial of ideas” to play out in scientific journals and the public square rather than before judges and lay juries who are ill equipped to decide such questions.

Still, giving scientific debate room to flourish is not without cost. Companies and individuals may suffer significant commercial or reputational harm when their technology is criticized. Thus, the law carefully limits the reach of First Amendment protection to authentic — albeit potentially “unfair” or “incorrect” — scientific analysis. If the data on which a scientific conclusion are not the true results of actual experiments or the methodology is undisclosed or misrepresented then there is no protection for the resulting opinions or conclusions. . . . Indeed, the law’s reliance on further research and critical analysis to respond to “flawed” scientific findings depends on the study data being truthful in the sense that it is not fabricated or fraudulently manipulated and the data and methodology being disclosed. If this is not the case, then not only is a fair assessment of the scientific inquiry not possible, but the authors have also forfeited any claim to constitutional protection. In other words, the law provides ample space for “bad science,” but not “fake science.”

There is also a lovely long footnote (3), which reads:

Of course, a scientific study that is thought to be clearly mistaken in the present may turn out to be completely correct in the future. From the time of Galileo, whose support for a sun-centered solar system led to his trial in the Inquisition, there have been scientists who were ridiculed and shunned for scientific insights that contradicted conventional “wisdom.” In the 1840s, Ignaz Semmelweis showed that doctors washing their hands drastically cut maternal deaths from childbed fever. He was hounded into an asylum, only to later be vindicated by germ theory. Barry Marshall and Robin Warren argued in the 1980s that H.pylori bacteria, not stress or lifestyle, caused most ulcers. The medical establishment dismissed the research. They won the Nobel Prize in Physiology or Medicine for the research in 2005. In short, a breathing space for “wrong” opinions is the essence of scientific discovery, debate and progress that the First Amendment seeks to protect.

The funniest bits of the ruling come when the judge expresses a little exasperation on two points:

1. Both parties in the suit apparently inundated him with documents as part of discovery, seeking to impress or overwhelm with sheer quantity. The judge pointed this out with a bit of an acid tongue, and then simply required them to refile the necessary bits before October 26th, reducing the load any appeals court might need to bear.
2. Elsevier gets upbraided for not embracing its commercial nature:
   1. “. . . although Elsevier needlessly resists acknowledging it, Elsevier’s frequent marketing of its journals . . . as ‘peer reviewed’ is ‘commercial advertising’ within the meaning of the Lanham Act. . . . While the journals themselves are intended to promote scientific inquiry, the advertisements touting them as ‘peer reviewed’ are part of Elsevier’s commercial marketing and published with the intent of encouraging the purchase of journal subscriptions. Further, the statements are widely disseminated so as to constitute advertising or promotion.”

This is a fun and informative ruling to read, and another clear indication of why humans are needed to adjudicate a variety of things in the scientific information space.

We’ll have more to say about this later this week . . .