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26 Comm. L. & Pol'y 1 (2021)

handle is hein.journals/comulp26 and id is 1 raw text is: 26 COMM. L. & PoL'Y 1-31 (2021) Copyright © Taylor & Francis Group, LLC Toyl&dGp ISSN: print/ online Taylor& Francis Group DOI: 10.1080/10811680.2021.1856601 LIBEL AND THE LAB: SCIENTISTS AND DEFAMATION KAREN M. MARKIN* Scientists are increasingly involved in defamation claims. Sometimes they are defendants in disputes over the accuracy of articles published in peer-reviewed scientific journals. In other instances, scientists are plaintiffs, filing suits against those who have attacked them in the popular media, harming their reputa- tions. Both situations represent efforts to quell scientists' speech, generally because their research threatens established commercial interests, and they pose a threat to scientific inquiry. This article examines these two trends. It recommends that, for journal articles, courts recognize a scientific debate privilege, which is emerging in some jurisdictions. It presents evidence that reputational attacks are intimidating scientists, causing them to pursue fewer controversial lines of research. It notes that, in their efforts to maintain vigorous debate on matters of public concern, courts are allowing brutal criti- cism of scientists that is having the opposite effect by driving researchers' voices out of the public sphere. Harvard Medical School Professor Pieter Cohen stood trial in 2017 for defamation in federal district court in Massachusetts for an article he published in a peer-reviewed scientific journal.1 The article stated that a stimulant found in some dietary supplements had unknown effects on human health. The authors urged consumers to avoid the substance, manufacturers to recall it, and the U.S. Food and Drug Administration to pull it from the market.2 Following publication of the article, the FDA alerted consumers to the possible dangers of the *Director of Research Development, University of Rhode Island. 'See Elizabeth Hall-Lipsey & Sarah Malanga, Defamation Lawsuits: Academic Sword or Shield?, 9 EMBO MOLECULAR MEDICINE 1623 (2017) (discussing Hi-Tech Pharmaceuticals v. Cohen, 277 F. Supp. 3d 236 (D. Mass. 2016)). 2See Pieter A. Cohen, Clayton Bloszies, Caleb Yee & Roy Gerona, An Amphetamine Isomer Whose Efficacy and Safety in Humans Has Never Been Studied, f-methylphe- nylethylamine (BMPEA), Is Found in Multiple Dietary Supplements, 8 DRUG TESTING & ANALYSIS 328 (2016). The article was published online in 2015 before appearing in the print version of the journal in 2016.

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