A chapter published in David M. Allen and James W. Howell (eds.), Groupthink in Science: Greed, Pathological Altruism, Ideology, Competition, and Culture (Springer, 2020), pp. 115-126
pdf of published chapter
Brian Martin's publications on science, technology and society
Laws and legal systems can have a constraining effect on scientific research and harm the public interest. The overt use of the law against research often has a smaller impact than the indirect effects of laws. Examples from three areas — defamation, euthanasia, and intellectual property — illustrate how laws can hinder research. When researchers are threatened with legal action for defamation, this can discourage research in their topic area. Laws against voluntary euthanasia have an indirect effect on research, such as by making it difficult to study euthanasia where it is illegal and hindering research into methods of do-it-yourself euthanasia. Copyright protection is so excessive that it inhibits creative work building on previous ideas, while patents of pharmaceutical drugs enable such huge profits that research into non-patentable alternatives is neglected. Options for responding to legal constraints on research include acquiescence, law reform, and resistance.
Pieter Cohen, a professor of medicine at Harvard University, has carried out research into the effects of nutritional supplements, the sorts commonly consumed by body-builders. Cohen published his findings in scientific journals and also publicized them more widely. Following this, Jared Wheat, the owner of the supplement producer Hi-Tech Pharmaceuticals, sued Cohen for defamation (Robbins 2017).
This might have seemed to be an obvious SLAPP — Strategic Lawsuit Against Public Participation — namely a legal action serving to restrain legitimate participation in matters of public interest. SLAPPs use various torts, most commonly defamation, to scare targets. In US courts, plaintiffs hardly ever win because of the First Amendment right to petition the government, for example to write letters of complaint to politicians and public officials. However, the point of SLAPPs is seldom to win in court but rather to discourage participation in public matters (Pring and Canan 1996; Sheldrick 2014).
Because of the damaging effect of SLAPPs, many US states have passed anti-SLAPP laws. Massachusetts had such a law, so it seemed that Wheat’s suit should have been dismissed. However, a judge overruled the state’s anti-SLAPP law, saying it prevented the plaintiff from obtaining a trial by jury.
Cohen, backed by Harvard, had to defend in court. They won, but only in legal terms. Defending the case required a considerable amount of time, effort and emotional energy. Wheat stated that he hoped his legal action would discourage other scientists from making “baseless allegations,” and advised scientists to “Think twice and do better research, knowing you can get sued if you do this.” (quoted in Robbins 2017). The legal action stimulated commentary by Cohen and others that referred to similar cases and reflected on the inappropriateness of using legal forums for dealing with scientific disagreements (Bagley et al. 2017; Carroll 2017; Katz and Redberg 2017).
Wheat’s case against Cohen is an example of how legal actions can influence the path of scientific research. Most commonly they discourage research on specific topics or from particular perspectives.
In this chapter, I describe several ways that laws and legal actions can restrain scientific research. The next two sections describe relevant aspects of science and law. Then I address the use of defamation actions against researchers, showing the role of domain shifting and illustrating the chilling effect of legal action. Next is a section on laws against euthanasia and how they indirectly discourage research in the area. After this is a discussion of intellectual property and how a legal regime set up to foster innovation can actually constrain it. Finally, I present a framework for analyzing responses to legal constraints on scientific research.
Legal interventions into scientific issues can be interpreted as attempts by self-interested groups to stymie or slant knowledge claims to their own advantage. In some cases the interventions are from outsiders to the scientific enterprise, while in others they are from insiders. Most scientists take the easy way out by avoiding research that might or has come under legal attack: for them, maintaining a strife-free career is more important than pursing principled action. Only occasionally do scientists unite against legal threats and constraints.
To understand the effect of legal actions on research, it is useful to consider key features of science and law, especially the contrasts between them. Both science and law are enterprises that pursue truth in some sense. Science operates by processes of observation, experiment, theory-development and theory-testing, aiming to develop and verify ways of explaining the world, both the natural and the social world. Scientists undertake research and publish it openly, so it is available for scrutiny, subject to critique and potentially the launching pad for further investigations. Decisions about what counts as a scientific fact or a valid theory are made through a sort of consensus process. There is no authority that pronounces the truth or falsity of a claim. Scientific knowledge emerges through collective processes of making claims and counter-claims until all or most researchers agree.
Law is a system of rules, based on statutes or precedents, that is applied to particular cases. Interpretations of the law are made by judges. Law can change, through legislation or reinterpretation. Judgments are published for all to read, but less to question than to understand and show relevance to future cases.
For some purposes, the formal differences between science and law are less important than the fact that they are different domains, each with its own set of procedures, practitioners, criteria, and aims. The aim of science is truth whereas the aim of law is justice.
A legal action against a scientist, such as Wheat’s suit against Cohen, involves movement from one domain to another, namely from science to law. It thus can serve to hinder the normal operation of science, with outcomes such as hindering particular researchers or discouraging certain types of research. Rather than research being assessed by peers according to scientific criteria, it is assessed by judges or juries according to entirely different sets of rules.
Another important factor in domain shifting is cost. Some research can be expensive in terms of salaries and equipment, but this cost is usually covered by funders — typically universities, governments, or corporations, not by individual scientists. Defending a legal action can be very expensive, involving tens or hundreds of thousands of dollars, and onerous for an individual and sometimes for an organization. There is also a significant cost in terms of time. Although lawyers run a case on behalf of a defendant, often the defendant spends many hours preparing documents. This represents an opportunity cost in research time foregone. Wheat’s initial claim against Cohen was for $20 million. Although this might be considered an ambit claim or as a form of intimidation, even a judgment awarding $1 million in damages would be devastating for most individual defendants.
It needs to be said that science is never unfettered. Although truth is the guiding light for researchers, some truths are deemed undesirable. To take an extreme example, studying the effects of nuclear explosions on people and the environment could be done by dropping bombs on populations. Nazi doctors’ experimentation on prisoners is considered a crime. Various treaties and laws, for example on land mines and animal experimentation, constrain research. Some governments have attempted to control research on encryption and stem cells. Studies of vulnerable groups, such as children and prisoners, are limited by the requirements of institutional review boards and ethics committees.
Science is thus constrained in many ways, in part by legal restrictions. The search for truth needs to be undertaken in the context of other values. How then is it possible to assess whether a legal action is a legitimate expression of some public interest or a harmful restraint on the search for knowledge? Various factors can be considered, including widely endorsed principles, involvement by affected parties in deciding on rules affecting science, and examination of who benefits from legal actions. To take two contrasting examples, research to improve methods of torture is in conflict with human rights principles, whereas research on nutritional supplements has the potential to benefit consumers. Hence legal restraints on torture research can be justified far more easily than legal restraints on supplements research.
In some cases, specific legal restrictions on research are clearly imposed in the service of vested interests. For example, in the United States, the influence of the National Rifle Association is sufficiently great that Congress in 1996 passed a law preventing federal funds for injury prevention at the Centers for Disease Control and Prevention from being used to promote gun control. The result is that gun violence is grossly understudied (Stark and Shah 2017). However, when laws are used to inhibit research, often there are other rationales than straight-out censorship. All sorts of laws affect scientific research directly or indirectly, for example laws on environmental protection, animal welfare, building codes, vehicle safety, minimum wage, employment contracts, pension funds, broadcasting, and monopolies. To illustrate the issues involved, three cases will be examined in more detail: defamation, euthanasia, and intellectual property.
Defamation law is commonly seen as an attempt to balance two competing values: protection of reputation and protection of free speech. One person’s speech can hurt another person’s reputation. When someone feels their reputation has been harmed by another’s speech, they can go to court seeking damages, and this very possibility serves to inhibit reputation-damaging speech. On the other hand, defamation suits can inhibit speech that serves the public interest, so the law provides defenses. For example, a defendant may be able to defeat a charge of defamation by demonstrating the truth of statements made. Other defenses include qualified privilege, for example when a teacher gives grades that hurt a student’s reputation, and parliamentary privilege, when an elected representative makes statements in parliament.
Publication of scientific papers, and reports of research, potentially can harm the reputation of individuals, including other scientists whose ideas or contributions are challenged. This sets the stage for invoking defamation law in ways that block or discourage research.
Alex de Blas was a student at the University of Tasmania. For her fourth year of undergraduate study, called the honors year, she wrote a thesis about pollution from the Mt Lyell mine in the state of Tasmania. The owners of the mine threatened de Blas and the university with an action for defamation, demanding that it not be published (Montgomery 1994).
Hilary Koprowski was a pioneer in developing a vaccine for polio. In a mass test of his vaccine in the late 1950s, it was given to nearly a million people in what today is the Congo. Decades later, a few individuals proposed that this vaccination campaign may have inadvertently led to the emergence of the disease AIDS. Tom Curtis, a journalist for the Houston Post, learned about this theory, investigated further and wrote a story in Rolling Stone, generating enormous interest (Curtis 1992). Koprowski sued Curtis and Rolling Stone for defamation. The case was highly expensive, and eventually Rolling Stone settled, paying Koprowski $1 and issuing a “clarification.” In the discovery phase of the proceedings, Curtis had to provide all his interview notes. He had planned a follow-up article, but this was cancelled. Furthermore, if he had wanted to do further interviews, he would have had to tell interviewees that anything they told him might be accessed in a future legal action. Koprowski’s legal action thus had a severe chilling effect on further investigation of the polio-vaccine theory for the origin of AIDS (Martin 2010).
Research on euthanasia is severely restricted by the law, though not by direct legal action. In Nazi Germany in 1939, Hitler initiated a program of killing people with disabilities, euphemistically called euthanasia, thereby stigmatizing the term for decades to come. After World War II, interest in peaceful death for humanitarian reasons developed largely as a result of medical advances. Technologies such as defibrillators and feeding tubes mean that people who once would have died can be maintained alive, but often with greatly reduced quality of life. Some, suffering greatly from lack of autonomy, indignity, breathlessness or intractable pain, sought an early death.
In most countries, the means for a violent death abound, including guns, high places, trains, and rope. On the other hand, means for peaceful death have been increasingly limited, with drugs that might provide fatal overdoses being restricted. This has led to a push for legalization of voluntary euthanasia. There are three main options for a peaceful death. The first, called active euthanasia, involves a doctor giving a patient a legal injection. The second, called physician-assisted suicide or physician-assisted dying, involves a doctor giving a patient a prescription for lethal drugs; the patient, if wishing to die, then takes the drugs. The third option, called self-deliverance or do-it-yourself euthanasia, involves a person obtaining lethal drugs or constructing an exit bag and then ending their life, without assistance.
In most countries, it is legal to commit suicide but illegal to help someone to end their life. Most of the writing in the area is about the ethics and legalities of euthanasia with little attention to research. It can be argued that the legal restraints on euthanasia have created a related restraint on research.
Even in places where euthanasia is illegal, it still occurs. For example, sympathetic doctors may covertly give patients access to lethal drugs, or give patients lethal injections. To research this practice requires great care. Roger Magnusson (2002) carried out interviews with Australian doctors, documenting an underground euthanasia practice, and revealed that doctors sometimes botched their attempts to help patients die, usually because of lack of knowledge and training. This is one of the few interview-based studies of euthanasia practiced in places where it is illegal. Such research is restrained for two reasons: subjects of the research — doctors who assisted patients to die — are wary of revealing actions that could lead to deregistration or criminal prosecutions, and the research itself is generally unwelcome by governments and medical authorities that oppose legalization of euthanasia.
Russel Ogden, an academic at Kwantlen Polytechnic University in British Columbia, pursued research into assisted dying and do-it-yourself euthanasia. In the course of his studies, he observed several individuals ending their lives (e.g. Ogden 2010). This sort of investigation, vital to learning how dying intended to be peaceful actually operates and can sometimes go wrong, was not welcomed in some quarters within his university. Ogden encountered obstacles to his research at several universities (Hager 2015).
Advocates of everyone having the option of a peaceful death have looked for a “peaceful pill,” a metaphor for any means by which individuals can reliably end their lives peacefully. The current preferred option is the drug pentobarbital, commonly called Nembutal. It is available at veterinary supply shops in some countries but highly restricted in many. For the “Nutech” group searching for a peaceful pill, one path would be to develop the capacity to synthesize Nembutal cheaply and easily (Côté 2012). However, efforts along these lines have so far not succeeded, being limited by human and financial resources. Governments do not sponsor this sort of research, except perhaps for classified military and national security purposes.
Laws against euthanasia thus restrain scientific research in several ways. Investigations into the ways doctors and others (such as relatives) covertly end the lives of individuals to end their extreme suffering are rare, in large part due to criminal sanctions against helping others to die. Obstacles include obtaining project approval from research institutions and obtaining the trust of doctors to learn about their practices. A similar difficulty faces those, like Russel Ogden, who study do-it-yourself euthanasia. Finally, research into means for peaceful dying are restrained by stigma and resources.
Some would say that research into euthanasia is undesirable, especially if it helps justify euthanasia, discourages improvement in palliative care, and increases the number of people whose lives are ended prematurely. On the other hand, others believe research into euthanasia can contribute to improved quality of life, for example by determining how deaths can be more peaceful, by better judging when euthanasia is warranted, and by investigating the potential for abuse.
The term “intellectual property” refers to a variety of laws, including copyright, patents, trademarks, and plant variety rights. Their common feature is putting legal restrictions on the use of ideas. For example, under current copyright law, as soon as a person writes some original words (such as the words in this chapter), they are copyrighted, and others cannot legally reproduce them for profit. Copyright can be assigned to others or sold. Copyright currently lasts for 70 years after the author’s death.
The rationale for intellectual property is to stimulate the production of new ideas and devices. It operates by giving a temporary monopoly over the ideas and devices, to enable the creator to gain a benefit. The curious feature of intellectual property is that it legally restrains innovation in the name of stimulating innovation. Unlike material objects, ideas can be used by many people at the same time. Only one person can be wearing a pair of shoes at a time, whereas a poet can enjoy her poem while millions of others are reading it too.
To optimally stimulate the production of new ideas, the duration of protection needs to be adjusted to provide a balance between encouraging the creator (through restraining use by others) and enabling others to build on a creator’s work. For example, novels usually have most of their sales within the first year of publication. Therefore, it can be argued, there is no need for copyright to extend beyond one year or perhaps a few years. Very few authors write more or better works by knowing that their copyright extends decades beyond their death. Excessive copyright terms, which keep being extended, restrain creativity by others. A classic example is Mickey Mouse, under copyright to the Disney Corporation. This copyright now does nothing to stimulate greater creativity by the original creator of Mickey Mouse, meanwhile preventing others from using Mickey Mouse for their own creations. Copyright with such a great duration thus serves to restrain innovation. It is a “monopoly privilege” enforced by law (Drahos 1996).
Scientific research is partially protected from the restraints involved with intellectual property. Scientific papers are copyrighted in the usual way. Initially the author holds copyright, but many journal publishers ask authors to assign them copyright for the purposes of sales, databases and other uses. Other authors can quote from published papers as long as the quotes not too long, according to fair use provisions. This allows other authors to quote portions of a text for the purposes of exposition or criticism.
Courts have interpreted copyright of scientific papers as applying only to the expression, namely the words used, not to the ideas. Furthermore, scientific formulas cannot be copyrighted. Therefore scientists can use the ideas developed by other scientists immediately. The usual expectation is that the creator is cited, and indeed being cited by others is often what scholars most desire.
Patents provide another avenue for intellectual property to both encourage and restrain scientific and technological innovation. Patents provide protection for inventions for a limited time, which allows inventors to benefit from their creations, but can also restrain research and development. Sometimes companies buy patents covering inventions they never intend to use, as a means of suppressing competition with the technology that is currently the basis for their business. In other words, a rival technology is available but it could threaten profits from current investments, so the rival technology is put on ice by purchasing patents covering it but not using them (Dunford 1987). For example, General Electric obtained patents in order to slow down the introduction of fluorescent lights, in order to protect its sales of incandescent lights. In this case, a law designed to stimulate invention was used to suppress invention. Patent law is based on the presumption, sometimes false, that patent protection will be used to innovate rather than suppress innovation.
In the pharmaceutical industry, patents enable extraordinary profits, in conjunction with other techniques, especially marketing. Companies research new drugs, looking especially at ones that address chronic conditions such as arthritis, high cholesterol, and high blood pressure. These are especially profitable because drug use continues for months or years. When government regulators approve a suitable drug, massive marketing can establish it as a standard prescription. This marketing includes advertising, free samples for doctors, and free “educational trips” for doctors to seminars and conferences. Companies write papers about the drugs based on their in-house research and recruit academics to be ghost authors. Published in leading medical journals, such papers give credibility to claims about the drug, and the company’s marketing machine uses the publications as publicity.
When a drug patent expires, sometimes a company can patent and introduce a new drug that is quite similar and market it as superior. This is one of the methods of evergreening, which basically means using tricks to unfairly extend patent protection.
Because the criteria for granting patents are so easy to satisfy, some companies obtain dozens of patents for various aspects of a product, thereby preventing competitors from marketing competing products. By means of such “patent thickets,” innovation is hindered. Then there are patent trolls: companies that obtain patents and, rather than using them, instead search for companies that have inadvertently violated them, aggressively seeking payment in compensation. Patent trolling in essence uses intellectual property as a tool of extortion rather than innovation.
Pharmaceutical prescription drugs have become a source of major corruption (Gøtzsche 2013). In some cases, researchers fiddle results, for example by looking for adverse effects for only a short period or excluding certain types of people from studies (Goldacre 2012). Drugs are promoted despite evidence that they are killing people. Some companies have been fined billions of dollars, indicating the massive scale of the corruption involved.
Intellectual property law is part of what enables abuses in the pharmaceutical industry. However, more significant than corruption is the distorting effect on research of the massive profits enabled by patent protection. The counterpoint to investigation of drugs that can be patented is a lack of investigation of substances that cannot be patented and indeed of anything that cannot be patented. For example, in one study, exercise was found to be as effective as antidepressants in dealing with depression (Craft and Perna 2004). However, exercise cannot be patented, so companies have little incentive to study its benefits. The result is that billions of dollars are invested in researching and promoting antidepressants while non-patentable options, including diet, mindfulness, and exercise, are under-researched. The same sort of distortion of research agendas occurs in other areas.
In the case of pharmaceutical drugs, the impact of law on scientific advance is indirect, unlike the use of defamation law. Patent law offers a set of incentives that, in the hands of a powerful industry, compliant governments and a willing medical profession, encourage research in some areas and starve it in others.
When law operates to suppress or inhibit scientific research or findings, there are several possible responses. Three are described here: acquiescence, law reform, and resistance.
One option is to acquiesce by avoiding doing anything that might cause offence. In the case of defamation, this might mean not undertaking research that might trigger threats of legal action. Pieter Cohen, for example, could acquiesce by discontinuing his research into nutritional supplements. This option is basically capitulation to legal obstacles. Put starkly, this might seem unacceptable to anyone committed to free inquiry. Yet it is actually quite common, representing the chilling effect of the possibility of being sued. Many scientists avoid topics that might lead to adverse actions against them (public denunciations, loss of funding, threats of dismissal) and instead choose topics where there is ample funding and the promise of a welcoming response from others in the field.
A second response is to push for reform of laws that serve to inhibit research. Defamation law reform is an example. Michael Curtis (1995), in an article stimulated by Hilary Koprowski’s defamation suit against Rolling Stone and Tom Curtis, argues for heightened legal protection for scientific speech. Similarly, Kate Sutherland (2010), in a discussion of Canadian defamation law inspired by a legal action against the publisher of a book review, argues for defamation law reform. Many commentators have recommended changes in laws on intellectual property (Halbert, 1999; Shulman, 1999). However, despite critiques of legal regimes and calls for law reform, in practice this path is both uncertain and slow. Concerns about scientific advance are a low priority in defamation law reform, where the interests of mass media and Internet corporations are more influential, and in reform of intellectual property law, where the influence of the corporate beneficiaries of current law (software companies, pharmaceutical manufacturers, Hollywood producers, genetic engineering companies) is overwhelming.
A third possible response is to challenge the legal action by exposing it and mobilizing support against it, in an attempt to make the action counterproductive for the plaintiff. This approach is based on a model of outrage management, also called the backfire model (Martin 2007). When a powerful individual or group does something that others might see as unfair — for example, sexual harassment, police beatings, massacres of peaceful protest, and genocide — the perpetrator often uses one or more methods to reduce public outrage:
The classic case involving defamation is called McLibel. In the late 1980s, members of an anarchist group called London Greenpeace (not related to Greenpeace International) produced a leaflet titled “What’s wrong with McDonald’s?” telling, among other things, about poor working conditions for McDonald’s workers and the unhealthy nature of McDonald’s food. McDonald’s, notoriously litigious, infiltrated the small London Greenpeace group, collected information and sued five activists for defamation. Two of them, Helen Steel and Dave Morris, defended in court, triggering the formation of a large-scale support network. After the longest case in British history, McDonald’s won in court but its reputation was severely damaged: it was a public relations disaster. McDonald’s defamation action backfired (Donson 2000; Vidal 1997).
McDonald’s used all five methods to reduce outrage. It tried to hide its use of infiltrators, devalued the members of London Greenpeace, reframed its action as defending the reputation of McDonald’s, and used official channels (a court action) to make its action seem legitimate. The legal action intimidated three of the London Greenpeace activists, who capitulated.
Steel, Morris and their supporters countered each one of these methods. They reproduced hundreds of thousands of copies of the leaflet “What’s wrong with McDonald’s?” and publicized the defamation action. Steel and Morris behaved with restraint. As ordinary workers (a gardener and a postman), they were hard to devalue. McLibel campaigners framed the defamation action as censorship. Campaigning itself went outside the legal domain. Finally, Steel and Morris resisted the intimidation of the legal action and refused to accept a generous settlement payment.
In summary, to counter the usual methods used to reduce outrage, opponents can increase outrage in these ways:
This provides a general approach to addressing many uses of the law that inhibit scientific research that serves the public interest. In relation to defamation, the idea is to make legal threats and actions backfire by giving more attention to whatever is targeted for censorship (Jansen and Martin 2003, 2015). The same approach can be used to analyze the struggle between the music industry and individuals who download songs, a case involving intellectual property (Martin, Moore, and Salter 2010).
In the 1990s, the government of South Africa, to deal with the large number of AIDS cases, sought to import a generic HIV/AIDS drug: compulsory licensing and parallel importation are permitted by international intellectual property agreements. Nevertheless, dozens of pharmaceutical companies sued the government, putting their profits above the health of South Africans with AIDS. To challenge this abuse of power, AIDS activists and public health groups publicized the pharmaceutical companies’ legal action, put the focus on AIDS patients, reframed the issue from patent law to health being sacrificed to corporate greed, mobilized support and mounted numerous protest actions. The opponents of the companies thus used all five methods of increasing outrage (Halbert 2005: 87–111).
Three types of legal restraint on research were examined here. The first is the most obvious: defamation threats and actions against researchers that deter research on topics that would potentially benefit the community. There are relatively few cases like this. However, defamation law has a more significant influence on research via the chilling effect: researchers will shy away from some topics because of the risk of being sued.
In the case of defamation, a key factor in restraining research is domain shifting. Rather than respond to research findings by scientific criticism or presenting contrary findings — the usual method in science — defamation suits shift the engagement to the legal domain, where money and legal technicalities take priority over scientific claims.
Laws against voluntary euthanasia are not directed at research but nonetheless discourage research on euthanasia by making research more difficult to undertake and by restricting funding for it.
Intellectual property provides a different sort of effect on research, via incentives. Patents, in conjunction with marketing and government regulatory processes, allow pharmaceutical companies to make massive profits from blockbuster drugs, thereby providing an incentive to prioritize investigating drugs with this potential. The spinoff effect is that research into other ways of improving health, including via exercise, diet, and non-patentable substances, receives less attention than it would otherwise.
The implication of these case studies is that studying the adverse effects of law on science requires going beyond the most obvious cases of suppression. It is important to recognize that some restraints on research can be justified, so it is necessary to carefully assess the justifications. It is also important to look for indirect effects of laws, which can be deeper and more pervasive than the relatively few cases that receive attention.
Thanks to David Allen, Pieter Cohen, Debora Halbert, Anneleis Humphries and Qinqing Xu for useful feedback on drafts.
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