Scientific Speech

• Author: Christopher P. Guzelian
• Position: 2004-2006 Searle Scholar, Northwestern University School of Law
• Pages: 02

2004-2006 Searle Scholar, Northwestern University School of Law (guzelian@pobox. com). I recommend reading a sister Article entitled False Speech & Liability, available at http:// ssrn.com/abstract=924722, to fully appreciate this Article's implications. I thank my family, Afsheen Afshar, Ron Allen, Guido Calabresi, Anne Clark, Russ Eggert, Marc Franklin, Kent Goodrich, Joe Grundfest, Christine Halmes, Tony Hopp, Chris Hsee, Mike Huemer, Larry Janssen, Daniel Kahneman, Peter Kessler, Andy Koppelman, Larry Lessig, Jim Lindgren, Ann Lousin, Gene Meyer, Bob Newman, John Pfaff, Mitch Polinsky, Karen Prena, Sue Razzano, Marty Redish, Larry Riff, Robert Sapolsky, Nathan Schachtman, Marshall Shapo, Chris Simoni, Paul Slovic, Michael Stein, Kathleen Sullivan, Ashlee Vance, Michael Victeroff, Eugene Volokh, David Sloan Wilson, Albert Yoon, Jeff Zax, Todd Zywicki, the Stanford Daily, EVoS participants at SUNY-Binghamton, the University of Mississippi School of Law faculty, and the many bright and enthusiastic students in my Spring 2005 Northwestern University School of Law course, The Law Where the Sidewalk Ends. My appreciation also extends to my research assistant Kristina Ash, faculty assistant Ashir Badami, and librarian Jim McMasters. My acknowledgement of these scholars, practitioners, and wonderfully helpful assistants does not imply that they endorse this Article. Statements and, more importantly, errors remain mine alone. My use of the first-person plural follows the convention of mathematicians. They believe, as do I, that publications are a collective effort-which includes your participation as a reader-to come closer to truth. The Searle Foundation provided exclusive financial support for my academic position during the time I conceived and wrote major preliminary drafts of this Article, but had no role in the Article's planning, researching, drafting, editing, or placement. I declare no financial conflicts of interest for this Article. This Article is in fondest memory of my grandparents, Philip and Rose Guzelian, Sr., two of my greatest teachers about truth.

Page 883

I Introduction

There are in fact two things, science and opinion; the former begets knowledge, the latter ignorance.

-Hippocrates¹

No previous law review article has focused on scientific speech. Most likely this is because courts and legal scholars do not traditionally recognize scientific speech as a First Amendment category of speech content. Scientific speech is instead scattered across various other categories of speech content-libel, political speech, commercial speech, etc. Some state and federal courts have hesitantly begun to tackle scientific-speech cases, but it is clear that they too lack-and are groping for-a sound legal framework within which to adjudicate these cases. To aid this effort, this Article shows two things. First, scientific speech should be recognized as a stand-alone category of speech content, even if this means modifying existing speech- content categories. Second, even under existing First Amendment law, common forms of liability, notably tort liability, logically apply to certain instances of false scientific speech,² called misleading scientific opinions, which cause legally cognizable injuries, such as fear, emotional distress, property damage, physical injury, financial loss, etc. Yet courts currently fail to apply First Amendment protections to scientific speech consistently, if they recognize these unique protections at all. We intend this Article to serve mostly as a warning of possible wider implications for First Amendment law as courts begin to entertain scientific-speech cases.³

This Article proceeds in four parts. In Part II, we discuss the three broad philosophical categories of propositions-scientific, historical, and political-on which all speech rests. In Part III, we break down and analyze the logic of speech, identifying the particular form of scientific speech that is problematic: misleading scientific opinions. In Part IV, we indicate that misleading scientific opinions are subject to legal liability under existing constitutional precedent or logical extensions thereof and review possible constitutional and other legal defenses to such liability. In Part V, we conclude the Article. Page 884

II Propositions: Scientific, Historical, And Political

Science is organized knowledge.

-Herbert Spencer⁴

[T]he trouble with lessons from history is that we usually read them best after falling flat on our chins.

-Robert Heinlein⁵

"Politics is a pendulum whose swings between anarchy and tyranny are fueled by perpetually rejuvenated illusions."

-Albert Einstein⁶

We can distinguish three types of philosophically (and potentially legally) relevant propositions: (1) scientific propositions, (2) historical propositions, and (3) political propositions. A proposition has a unique truth value: it is either true (i.e., a "fact" or a "certainty"), false (i.e., an "impossibility" or a "falsehood"), or uncertain.⁷

The truth value of political propositions is not knowable (and, therefore, cannot serve as the basis of false-speech liability). According to legal precedent, some, but not all, historical propositions may be knowable. This Article does not take a position on whether that is true. By contrast, scientific propositions that are at the crux of all false-scientific-speech liability are knowable. As we shall see, they are knowable through exactly one reliable method: systematic review of the best available scientific evidence, or Evidence-Based Logic ("EBL").

A Scientific Propositions

"It doesn't matter how beautiful your theory is, it doesn't matter how smart you are. If it doesn't agree with experiment, it's wrong."

-Richard Feynman⁸ Page 885

There are two different kinds of claims that matter when we talk about scientific propositions:

* Observational (sensory) claims, which can be verified or refuted directly by sensory experience.

* Scientific (causal) propositions, which are theoretical and can be verified or refuted only indirectly by sensory experiences. Observational claims are necessary for knowing the state of scientific certainty about a scientific causal proposition. For instance, if we say, "the presence of A caused B," we must have observed both A ("I saw A" is an observational claim) and B ("I saw B" is a separate observational claim). Thus, a proper scientific (causal) proposition has at least two (usually reproducible) observational claims in support of it.⁹

Knowing observational claims is unproblematic, at least for most practical purposes. There is sometimes a problem of knowing whether someone who reports an "observation" is lying or mistaken. But for practical purposes, we need not worry about whether replicable sense perceptions used as the basis of a scientific (causal) claim are legitimate.

When it comes to scientific (causal) propositions, however, we need a special sort of account of how science knows they are true or false or, alternatively, how science knows that it is not yet capable of pronouncing whether a proposition is true or false (i.e., the scientific proposition's truth value is uncertain).¹⁰ Page 886

That account involves a systematic, transparent, rule-based analysis of scientific studies called Evidence-Based Logic. EBL establishes what truth- value science¹¹ assigns to a scientific causal proposition ("A causes B") at a given time: (1) "true" (fact); (2) "false" (impossibility); or (3) "uncertain" (uncertainty).¹²

1. Evidence-Based Logic ("EBL")

[ A ] distinction must be made between true and false ideas, and that too much rein must not be given to a man's imagination under pretext of its being a clear and distinct intellection.

-Gottfried Leibniz

¹³

"[I]t is so important for the future of science that the line between what science can say with certainty, and what it cannot, be drawn clearly-and defended."

-Michael Crichton¹⁴

Beginning with the influential work of Thomas Kuhn¹⁵ and continuing through the writings of Paul Feyerabend,¹⁶ a generation of scientific skeptics attacked science as a method that only illusorily "proves" facts about reality.

Surprisingly, many scholars continue to harbor reservations about whether scientific facts can ever be known.¹⁷ If one assumes this skeptical position, the reluctance to regulate scientific speech is understandable: the "truth" of a statement can be decided only on the basis of authority, not objective accuracy. However, this invariant skeptic's position has been Page 887 rebutted at a meta-level¹⁸ and effectively shown to be a philosophically inappropriate argumentation tactic in practical, real-world settings.¹⁹

In 1993, the Supreme Court waded tentatively into the debate of whether scientific propositions are provable in three successive cases called the Daubert trilogy. In Daubert v. Merrill Dow Pharmaceuticals, Inc.,²⁰ the first of these cases, the Court indicated its confidence that scientific propositions are knowable...