First Amendment Victorious: Protects Anonymous Critics On PubPeer

Free Speech

from the good-news-for-the-Wild-West-internet dept

Another nice win for free speech and online criticism has been handed down by the Michigan Court of Appeals in a defamation lawsuit targeting commenters at PubPeer, a site dedicated to anonymous reviews of published research. As is often the case with any site dedicated to criticism, PubPeer’s users managed to anger targets of their comments and commentary.

In 2014, a prominent cancer researcher sued several anonymous PubPeer users for defamation. He alleged that they defamed him by pointing out anomalies in his research, and he claimed that their comments cost him a tenured position with a university. Through the lawsuit, the researcher obtained a subpoena requiring PubPeer to disclose the users’ identifying information.

Dr. Fazlul Sarkar claimed this case was about “tortious interference” with his career and “not about free speech.” He also claimed the comments were defamatory. Sarkar tried to unmask five commenters, but the Michigan trial court trimmed that number down to one. PubPeer fought back, challenging this single unmasking attempt.

After reviewing the multiple pages of comments submitted as evidence of his defamation claims, the Appeals Court cannot find anything approaching the libelous subject matter Sarkar claims he sees. The court refuses to do his work for him. From the opinion [PDF]:

After reviewing these paragraphs, we conclude that they are facially deficient and unable to survive a motion for summary disposition pursuant to MCR 2.116(C)(8). As stated above, “[a] plaintiff claiming defamation must plead a defamation claim with specificity by identifying the exact language that the plaintiff alleges to be defamatory.” Ghanam, 303 Mich App at 543 (citation and internal quotation marks omitted).14 Here, minimal language is specifically identified in these paragraphs in the complaint, and Dr. Sarkar apparently relies on the trial court and this Court to visit pubpeer.com and learn the underlying science at issue to determine whether the statement constitutes a potentially defamatory accusation. In essence, we would be left searching the webpages that he cites to in hopes of finding comments that do or do not support his claim. This is his, not our, burden, and we decline to do so for him.

That disposes of most of Sarkar’s libel claims. The few remaining comments that veer closer to defamation still aren’t, as the commenters’ statements were based on the thing that causes a great many libel lawsuit fatalities: facts.

Assuming that these paragraphs are facially sufficient, we nevertheless conclude that they are also unable to survive a motion for summary disposition pursuant to MCR 2.116(C)(8). While we are unable to find any Michigan caselaw specifically addressing comments of this nature, other jurisdictions, both federal and state, have addressed similar issues on many occasions. In doing so, they have recognized “that when a speaker outlines the factual basis for his conclusion, his statement is protected by the First Amendment.” Partington v Bugliosi, 56 F3d 1147, 1156 (CA 9, 1995). This is true even if the speaker expresses his or her opinion anonymously. Each of the paragraphs above reflect the speaker’s opinion based on underlying facts that are available to readers.

And, since Sarkar’s claims fall short of the defamation mark, any effort taken to unmask the sole remaining commenter would be detrimental to their First Amendment protections. The court says Sarkar cannot unmask any of the PubPeer commenters and strongly hints that further pursuing any defamation claims against any of the commenters is just going to be a waste of the Sarkar’s time and money.

The court’s decision to protect the anonymity of these commenters is a First Amendment win overall, but especially important for those in the scientific community, as Adam Marcus and Ivan Oransky point out.

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.

And, specifically for PubPeer, this means post-publication research can be examined, questioned, and criticized with a reduced fear of reprisal. The scientific process doesn’t end with publication, and the court’s decision here solidifies protections for this essential aspect of online discourse.

Filed Under: defamation, fazlul sarkar, first amendment, free speech
Companies: pubpeer