from the defamation-law-as-a-weapon dept
One of the important elements of the First Amendment, and its protections of opinion, is that it opens up all kinds of debates -- from the political to the scientific. Indeed, the very nature of scientific research in academia is one of constant debate between researchers with different viewpoints. This has gone on for centuries. And, yet, it appears that at least one scientist has apparently decided that the standard nature of scientific debate is now defamatory. He's almost certainly wrong, but the details of this case are disturbing. Stanford professor Mark Jacobson apparently was less than happy to see criticism from another scientist, Christopher Clack. Rather than just respond with another paper, Jacobson has sued Clack and the National Academy of Sciences for defamation in the Superior Court in Washington DC (more on that in a moment).
The complaint is worth reading as it lays out the path to this dispute in a pretty straightforward way. Jacobson and some other authors published an article in PNAS, the Proceedings of the National Academy of Sciences in late 2015. Early in 2016, Clack communicated with Jacobson via phone and email to better understand some of the assumptions in the original paper. Clack (and others) then published a "rebuttal" article (also in PNAS) to Jacobson's original article. Jacobson, from the complaint, appears to be upset that Clack never requested "a time series of model output from the Jacobson Article" or any information other than what was discussed via phone and email in early 2016.
Upon being notified by PNAS of Clack's rebuttal article, and being asked if he'd liked to respond in a letter that PNAS would also publish, Jacobson claimed that Clack's paper had 30 false statements and "five materially misleading statements," and asked PNAS to withdraw the article. PNAS's deputy executive editor responded to ask if he could send Clack and his co-author's Jacobson's concerns, leading Jacobson to write a "slightly updated" list of grievances and specifically asked PNAS to forward them to Clack and the others. For whatever reason PNAS chose not to do so which is its right. There was some more back and forth before Jacobson realized that his list of complaints had not been forwarded, which seems to have greatly upset Jacobson (all the bold is directly from the complaint itself):
On May 5, 2017, in the face of NAS's decision to publish the uncorrected version of the Clack Article in PNAS, Dr. Jacobson against contacted Mr. Salsbury and sent yet another document regarding the requested corrections, this time pointing out the errors line-by-line. Exhibit 9. Mr. Salsbury replied to Dr. Jacobson later that same day, stating, "We discussed your recent emails with the Editor-in-Chief and have sent your critique received today to the authors this morning. We provided your previous response to a Board member who took it into consideration during the two rounds of revisions since you last saw the manuscript. The Board member did not to (sic) send your response directly to the authors at that time." ... Thus, for two months NAS led Dr. Jacobson to believe that NAS had forwarded his list of requested corrections of false and misleading statements to the authors of the Clark Article when in fact it had not.
And, I mean... so what? Just because Jacobson doesn't like Clack's article, or thinks there are errors in it, it doesn't magically give him control over the editorial process of PNAS. That's just not how it works. However, Jacobson appears to be arguing that only his version of things can be true and the disagreement is defamatory. That's also not how it works. Scientific debate often involves different interpretations and different opinions. And sometimes people get things wrong or sometimes they portray things in a misleading way. But none of that is defamation.
Indeed, Jacobson admits that once Clack and the others had seen his 35 complaints, some more changes were then made to the article (though minor ones that only addressed a few small points). However, once again, the First Amendment absolutely allows people to be wrong. Or to disagree over certain items. That's kind of the hallmark of academic debate.
There are a number of other just... weird... arguments in the complaint, which itself reads like an airing of grievances, rather than a typical defamation complaint. As Jonathan Adler notes:
Jacobson claims the NAS violated its conflict-of-interest disclosure policies by failing to note that some of the contributors to the Clack, et al., paper are “advocates” for various policy positions. Yet Jacobson’s own paper doesn’t list his own policy advocacy as a potential conflict of interest either.
Throughout the filing Jacobson seems to insist that there are certain standards that Clack and PNAS must follow, despite no actual basis for them to have followed those standards. As another example of this, Jacobson's complaint spends a fairly ridiculous amount of space arguing that Clack's article should not have been published as an "Article" but as a "Letter." Here's just one paragraph of a many paragraphs-long complaint about this point:
The Clack Article does not contain "results of original research of exceptional importance," and, therefore, is not a "Research Report." Not only did none of the Clack Authors request output data from the Jacobson Article, the most fundamental first step in performing research on another scientific study, until three weeks after publication of the Clack Article, and not only did the Clack Article contain numerous false facts that the authors and NAS were aware of and never corrected, but the Clack Article is also in the nature of "comments that allow readers... to address a difference of opinion with authors of a recent PNAS article." Exhibit 1 at p. 1 (describing a "Letter").
Again: just because Jacobson wrote an earlier piece, it doesn't magically give him the power to dictate someone else's publication criteria. Jacobson really seems to think he gets to set the terms by which others can respond to him and how the journal he published in handles those responses. That's not how it works. And who knows: I'm willing to grant the premise that perhaps Jacobson is 100% right about Clack's article being terrible. But, that doesn't matter. That doesn't magically give you the power to demand these kinds of things and then sue over it.
Incredibly, a few paragraphs later, Jacobson more or less undermines the entire line of arguments and in the process any hope for the defamation claim:
As noted supra, "Letters" are limited to 500 words and 10 citations, and they must be submitted within six months of publication of the article to which they respond.... The Clack Article failed to meet these criteria. It is significantly more than 500 words in length. The article itself is six pages long, single-spaced and includes a 13-page, single-spaced Supporting Information, which is not allowed with a Letter. With 27 citations in the main text alone, the Clack Article far exceeds the 10-citation limit for a Letter. Finally, the Clack Article was not submitted for review until June 26, 2016, missing the six-month deadline for letter submissions by almost three weeks. Even if NAS had overlooked the lateness of the Clack submission, it should not have ignored the remaining criteria for Letter submissions.
So, uh, that's kind of a weird paragraph to include in the part where you insist Clack's article should have been a letter, since Jacobson just explained why maybe it wasn't a letter at all. And, hey, the 27 citations? That certainly suggests that Clack's article is full of the citations on which he based his conclusions, which would suggest that Clack provided the factual basis for the interpretation presented. Multiple defamation cases have failed when the defendant has shown that they provided the factual basis. Jacobson here seems to be admitting that Clack showed his work, which strongly cuts against defamation.
Another complaint by Jacobson: how dare PNAS allow all 21 authors that Clack listed be included as co-authors:
The fact that NAS permitted the Clack Article to list all twenty-one co-authors, eighteen of whom admit not to having performed research, instead of only the three who "contributed substantially" to the work is another violation by NAS of its own policy for PNAS publications.
Right. So complain to PNAS for not following its policies. Don't sue them.
As for the "materially false statements," at best they look like disagreements, or possibly accidental mistakes in interpreting Jacobson's report. Jacobson makes a lot of fuss over the fact that in the email conversation he and Clack had a year earlier, he had responded to one of Clack's questions and Clack either forgot or ignored this in the article. But, it's hard to see how this reaches even the most fundamental levels of defamation.
Basically, all of this just looks like Jacobson is really mad. And maybe he's right to be mad. But that doesn't give you the right to sue.
This seems like a very clear SLAPP suit, in which the intent is to stifle public discourse and scientific debate. And that takes us to the question of why file this in Washington DC when Jacobson is based in California and Clack is in Colorado. It's true that NAS is in DC, but it also seems likely that this is fallout from another defamation lawsuit involving climate scientists -- the one that climate scientist Michael Mann filed against some publications, reporters and think tankers over their criticism of his research. Late last year (after more than four years in the courts), the District of Columbia Court of Appeals gave a very troubling ruling in that case, going against a ton of precedent concerning the First Amendment, protected opinion and anti-SLAPP rules.
And, thus, DC has apparently become a "good" venue for filing dubious defamation SLAPP suits concerning scientific disputes.
The whole situation is unfortunate and remarkable. It's no secret that academic disputes can get nasty, but filing a defamation lawsuit, demanding $10 million, just because you don't like a response to your own research is, simply, ridiculous. As Michael Shellenberger wrote in discussing this lawsuit, this move is bad for science:
Scientists and energy analysts should not be intimidated. We must stand up to bullies. We urge all lovers of nature and science to join us in denouncing this unprecedented and appalling attack on free inquiry.
I will add, finally, that this lawsuit saddens me personally. I debated Jacobson at UCLA and I believe he is a good person in the grip of a bad idea. I encourage him to drop the lawsuit.
Once again, this kind of thing is yet another reminder of the need for a federal anti-SLAPP law. There was talk of one being introduced in Congress earlier this year, but to date it has not appeared. As more and more of these kinds of cases pile up, the lack of a federal anti-SLAPP law to stop these kinds of silly lawsuits is glaring.
Filed Under: academic research, anti-slapp, christopher clack, defamation, free speech, mark jacobson, pnas, scientific debate, slapp, washingto dc
Companies: nas, national academy of science
