Why a First Amendment win is good for science

Some of Donald Trump’s recent comments have bloodied the nose of the First Amendment, but here, at least, is a glimmer of good news: Judges in a Michigan defamation case this week ruled that anonymous scientific critiques are a protected form of speech.

The decision, by a three-judge panel on the Michigan Court of Appeals, gives a boost to the nascent but growing practice of online post-publication peer review.

The ruling stems from a defamation lawsuit involving Fazlul Sarkar, formerly of Wayne State University. Sarkar is angry because posters to the site PubPeer — which allows people to critique the work of scientists — questioned the integrity of his work. Those comments, he claims, cost him a lucrative job at the University of Mississippi and tarnished his reputation. He has demanded to know the names of the anonymous critics who were calling his findings into question. (Sarkar has now had 18 papers retracted.)

The decision, which reverses a ruling from a lower court, doesn’t stop the defamation suit, although it is quite difficult to sue someone whose identity is unknown. But it does uphold a principle we strongly support: Science needs anonymous whistleblowers, and they deserve protection. We hate to contemplate what might have happened had the judges ruled otherwise.

PubPeer offers a forum for vigorous post-publication review of published research. Critics of the site have argued that it would prove to be a cesspool of vendettas and grudge-bearing. That hasn’t happened. In fact, not only are unfounded accusations quickly moderated from the blog, posters have surfaced evidence there that prompted the retractions of a number of articles and that launched several institutional investigations.

Given the First Amendment stakes, PubPeer had support in the lawsuit from the American Civil Liberties Union, whose attorney, Alex Abdo, praised the decision in a statement: “This ruling is a critical victory for freedom of speech and scientific inquiry,” Abdo said. “Anonymity has a storied history in our country, allowing the nation’s founders to express unpopular views in relative safety. Anonymity is no less important today. Scientists who anonymously review the work of their peers should not have to fear retribution for exposing the anomalies they find, and the court rightly agreed.”

Meanwhile, Nicholas Roumel, Sarkar’s attorney, told the Scientist that the ruling “sucked” but was “in line with the trend of these cases all over the country.”

Other notable defenses of First Amendment rights in science include the 2015 ruling by a judge in Massachusetts that the journal Diabetes did not defame a scientist in Brazil when it issued an expression of concern about four of his papers. And in another Massachusetts case also last year, a different court ruled that First Amendment rights allowed a journal to retract a paper over an author’s objections.

This week’s decision may suck for Sarkar, but it’s good for PubPeer, and, in turn, for science.

Why is anonymity so important to science? A few reasons. The first: Many people in a position to observe questionable research practices in a lab are underlings — postdocs, students, and others of similarly low station. Like the indentured servants they for all practical purposes are, they’re powerless against lab heads and senior members of the faculty. The shield of anonymity is a crucial protection against retribution.

In addition, even peers may not feel comfortable making public allegations or questions about a colleague’s work, for obvious reasons. They may doze through the same department meetings, sit on the same editorial boards, or be active in the same professional societies.

We wish humans weren’t so defensive and tribal, really, we do. But until some mad scientist genetically engineers those traits away — which would probably involve a cure that’s worse than the disease — we’re stuck with ourselves. Luckily, we’re also “stuck” with the First Amendment — at least for now.