The Second Circuit handed down an opinion recently that combined two things I find pretty endlessly interesting: scientific research and the First Amendment. (Geek alert!) The case – ONY, Inc. v. Cornerstone Therapeutics, Inc. – involved competitors in the market for artificial surfactants. These are drugs that are give to premature infants to help them breathe. The Plaintiff, ONY, claimed that Defendants published an article in a peer reviewed journal that included a number of incorrect statements asserting that Plaintiff’s product was dramatically inferior to a product made by one of the Defendants. (Plaintiff didn’t claim that Defendants falsified data only that they wrongly interpreted accurate data.)
Plaintiff sued claiming false advertising. The Lanham Act forbids such false advertising. However, as the Court pointed out, courts are careful not to overextend the Lanham Act to intrude onto speech that is protected by the First Amendment, including statements of “pure opinion – that is, statements incapable of being proven false.”
The Second Circuit, not surprisingly, affirmed the lower court’s decision dismissing the Plaintiff’s case. The Court concluded that “scientific conclusions about unsettled matters of scientific debate cannot give rise to liability” for defamation. I say not surprisingly because academic freedom is an area of particular concern to the First Amendment.
In reaching this conclusion, the court noted that scientific discourse poses a particular problem for the traditional fact-opinion distinction of First Amendment jurisprudence. Theoretically, the conclusions in a scientific journal should be capable of being objectively proven true or false. Therefore, under traditional First Amendment principles the conclusions in a scientific article would be classified as facts, not opinion, and could serve as the basis for a suit under the Lanham Act. The Court, however, wrote “it is the essence of the scientific method that the conclusions of empirical research are tentative and subject to revision, because they represent inferences about the nature of reality based on the results of experimentation and observation.” The Court reached this conclusion because although scientific conclusions may be verifiable facts, for purposes of the First Amendment and the Lanham Act, in the relative scientific communities they are understood as “more close akin to matters of opinion.”
While this may be a bit of a stretch by the court to reach a necessary conclusion, it’s also a seems to be based in a common sense idea that refereeing scientific controversies and evaluating data should be left to peer reviewed journals, not the courts.