Scientific speech

Iowa Law Review

Volumn 93, Issue 3, 2008, Pages 881-928

  Guzelian, Christopher P ^a  

^a NONE

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EID: 45449113221     PISSN: 00210552     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (222)

1. The Quotations Page, http://www.quotationspage.com/quote/24181.html (last visited Oct. 16, 2007).
2. Speech can be literally false or cause false perceptions. Only the latter kind of false speech - that which causes an audience to reasonably misconstrue a fact - ultimately matters in determining whether the speech is constitutionally protected. Christopher P. Guzelian, False Speech & Liability 22 (Stanford Pub. Law, Paper No. 924722, 2006), available at http://ssrn.com/abstract=924722.
3. A companion article, False Speech & Liability, resumes the discussion where Scientific Speech ends by showing that getting out of this First Amendment quagmire may not be easy. Instead, it may prove necessary to rethink completely general principles of legal liability (including those that apply to conduct) to avoid chilling speech. See id. at 164.
4. The Quotations Page, http://www.quotationspage.com/quote/27260.html (last visited Oct. 17, 2007).
5. ROBERT A. HEINLEIN, STARSHIP TROOPERS 121 (1959).
6. Typology.net, Albert Einstein Quotations, http://www.typology.net/quotes/ einstein.html (last visited Oct. 17, 2007).
7. There is a class of propositions, known as "liar paradoxes," for which it is not clear whether there is a truth-value. See R.M. SAINSBURY, PARADOXES 111-17 (2d ed. 1995) (describing and analyzing the liar paradox exemplified by statements such as, "This statement is false"). For instance, "This sentence is false," if true, is false. If false, it is true, Id. Liar paradoxes are not propositions relevant to this Article.
8. Wikiquote.org, Richard Feynman, http://en.wikiquote.org/wiki/ Richard_Feynman (last visited Oct. 17, 2007).
9. It is necessary to "frame" any scientific proposition. Many propositions may appear to be scientific but lack proper framing. Only delimiters can adequately frame scientific propositions. An iterative, systematic, and Evidence-Based process yields the general and individual delimiters relevant for framing a scientific proposition. See, e.g., Philip S. Guzelian et al., Evidence-Based Toxicology: A Comprehensive Framework for Causation, 24 HUM. & EXPERIMENTAL TOXICOLOGY 161, 181-82 (2005) (providing an overview of the need to frame a proper toxicologic proposition using general and specific delimiters).
10. Some individuals continue to reject the concept of a categorical qualitative difference between scientific uncertainties and facts/ impossibilities. Most of these individuals instead advance a position known as "counterfactual probabilistic causation" or "probabilistic alternate cause analysis." Id. at 189. They argue that all accumulated "evidence" incrementally increases (or decreases) the probability of a proposition being true or false. Id. Elsewhere, this position has been described as mathematically and logically untenable. See id. at 188-89. Counterfactual probabilistic causation, although couched in probabilistic terms, effectively resorts to skepticism to attack established criteria for knowledge in an effort to establish the principle that alternative criteria (usually inferior to those being assailed through skepticism) are sufficient to establish knowledge. The problem, however, is that any alternative standards for knowledge are equally susceptible to the same skeptical attacks, leaving all disputants in the impractical position of having to say that there is no knowledge.
11. Do not mistake EBL as a method for proving the absolutely true, God-given truth-value of a proposition. EBL only informs what truth-value science assigns to a scientific proposition.
12. When the truth-value of a proposition is presently a proven uncertainty according to EBL, scientific propositions look quite similar (philosophically speaking) to political propositions, which are unprovable. The difference is that an uncertainty can eventually be known to be "true " or "false" as critical evidence is gained, whereas a political proposition cannot be empirically resolved.
13. SendWiseCards.com, http://www.sendwisecards.com/Quotes-about-Metaphysics. php (last visited Nov. 16, 2007).
14. Michael Crichton, Lecture at California Institute of Technology: Aliens Cause Global Warming (Jan. 17, 2003), available at www.michaelcrichton. com/speech-alienscauseglobalwarming.html.
15. THOMAS KUHN, THE STRUCTURE OF SCIENTIFIC REVOLUTIONS (1962).
16. PAUL FEYERABEND, AGAINST METHOD (1975). For a readable introduction to skepticism, see generally MICHAEL HUEMER, SKEPTICISM AND THE VEIL OF PERCEPTION (2001).
17. Many philosophers claim it is improper to say one "knows" the truth of a proposition if the absolute, God-given truth-value of the proposition is different from the truth-value that a person believes is correct. Neither courts nor we use the term "know" in this way. Under our definition, it is theoretically possible to "know" a proposition is true when it is platonically false. Philosophers sometimes use the phrase justified belief, which is nearly equivalent to our concept of scientific "knowledge" or "proof."
18. For interesting discussions of the ongoing "meta" battles about the existence of objective truth, see generally GREGORY CHAITIN, META MATH! THE QUEST FOR OMEGA (2005), and REBECCA GOLDSTEIN, INCOMPLETENESS: THE PROOF AND PARADOX OF KURT GÖDEL (2005).
19. Keith DeRose, Contextualism and Knowledge Attributions, 52 PHIL. & PHENOMENOLOGICAL RES. 913, 924-28 (1992);
20. see also JOHN SEARLE, MIND: A BRIEF INTRODUCTION 302-03 (2004);
21. Christopher P. Guzelian, Did Daubert Rid Courtrooms of Advocacy Science?, in SCIENTIFIC EVIDENCE REVIEW 50-51 (7th ed., Am. Bar Assoc. 2006);
22. Ronald J. Dworkin, Objectivity and Truth: You'd Better Believe It, 25 PHIL. & PUB. AFF. 87, 89 (1996) ("No one - not even the most committed post-modernist or anti-foundationalist - thinks his views should affect how physicists or mathematicians actually work.");
23. John Foster, Induction, Explanation and Natural Necessity, 83 PROCS. ARISTOTELIAN SOC'Y 87 (1983);
24. R. Pawson, Evidence-Based Policy: The Promise of 'Realist Synthesis,' 8 EVALUATION 340, 345 (2002) ("Such a proposition [i.e., Karl Popper's theory of "falsification" in the philosophy of science or the "negative instance" in "analytical induction" in social science] has a home in common sense and metaphysics.");
25. D.L. Weed, Methods in Epidemiology and Public Health: Does Practice Match Theory?, 55 J. EPIDEMIOLOGY CMTY. HEALTH 104, 106-07 (2001).
26. Daubert v. Merrill Dow Pharms., Inc., 509 U.S. 579 (1993).
27. Id. at 590 (Blackmun, J., concurring) ("[I]n order to qualify as 'scientific knowledge,' an inference or assertion must be derived by the scientific method.").
28. See generally Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) (excluding expert evidence for failure to fulfill the Daubert factors); Gen. Elec. v. Joiner, 522 U.S. 136 (1997). In Joiner, concurring justice Breyer wrote: [A] trial judge, acting as "gatekeeper," must "'ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.'" This requirement will sometimes ask judges to make subtle and sophisticated determinations about scientific methodology and its relation to the conclusions an expert witness seeks to offer . . . . It is [] essential in this science-related area that the courts administer the Federal Rules of Evidence in order to achieve the "end[s]" that the Rules themselves set forth: [] that the truth may be ascertained. Id. at 147-49 (citations omitted).
29. See Guzelian, supra note 19, at 41-42 (detailing the pervasiveness of advocacy science) ; cf. LUDWIG WITTGENSTEIN, PHILOSOPHICAL INVESTIGATIONS 75 (G.E.M. Anscombe trans., 2001) (1953). Wittgenstein wrote: If language is to be a means of communication, there must be agreement not only in definitions but also (queer as this may sound) in judgments. This seems to abolish logic, but does not do so. It is one thing to describe methods of measurement, and another to obtain and state results of measurement. But what we call 'measuring' is partly determined by a certain constancy in results of measurement. Id.
30. See Alexander Meiklejohn, The First Amendment Is an Absolute, 1961 SUP. CT. REV. 245, 255 (contending that art, literature, philosophy, and the sciences should be included in the First Amendment marketplace model because they help "voters acquire the intelligence, integrity, sensitivity, and generous devotion to the general welfare that, in theory, casting a ballot is assumed to express").
31. ALEXANDER MEIKLEJOHN, FREE SPEECH AND ITS RELATION TO SELF-GOVERNMENT 104 (1946).
32. Courts continue to wrongly equate scientific and political debates. See, e.g., McMillan v. Togus Reg'l Office, Dep't of Veterans Affairs, 294 F. Supp. 2d 305, 317 (E.D.N.Y. 2003) ("As in political controversy, 'science is, above all, an adversary process.'" (citation omitted)).
33. See Lawrence Lessig, Erie-Effects of Volume 110: An Essay on Context in Interpretive Theory, 110 HARV. L. REV. 1785, 1802 (1997) ("[T]o say that something is contestable is simply to report a social understanding that there is disagreement about it. . . . It is not to say that there is no truth about the matter, or that there are no right answers.");
34. cf. KARL R. POPPER, THE POVERTY OF HISTORICISM 132 (1957) ("[I]n science we are always concerned with explanations, predictions, and tests, and that the method of testing hypotheses is always the same . . . .");
35. Alan Sokal, Transgressing the Boundaries: Towards a Transformative Hermeneutics of Quantum Gravity, 46/47 SOC. TEXT 217, 226-31 (1996) (parodying the postmodernist view on science as a cultural construct);
36. Sendhil Mullainathan & Andrei Shleifer, Media Bias 3 (Dep't of Econ., Mass. Inst, of Tech., Working Paper No. 02-33, 2002), available at http://ssrn.com/ abstract =335800 (formally theorizing that marketplace competition does not decrease, but rather increases, inaccurate information transmission for non-ideological debates). Or as Nobel Prize winning economist Milton Friedman famously said, "The only relevant test of the validity of a hypothesis is comparison of prediction with experience."
37. Martin H. Redish, The Value of Free Speech, 130 U. PA. L. REV. 591, 627 (1982) ("[T] he dissemination of undisputedly false factual information [is not] a valid means of aiding [free speech interests] . . . ." (emphasis added)).
38. But see MAHATMA GANDHI, ALL MEN ARE BROTHERS 69 (Krishna Kripalani ed., 1980) ("An error does not become truth by reason of multiplied propagation, nor does truth become error because nobody sees it.");
39. GERARD PIEL, AGE OF SCIENCE: WHAT SCIENTISTS LEARNED IN THE 20TH CENTURY 21 (2001) ("'In questions of science, the authority of a thousand is not worth the humble reasoning of a single individual.'" (quoting Galileo Galilei)).
40. 1 ROBERT D. SACK, SACK ON DEFAMATION: LIBEL, SLANDER, AND RELATED PROBLEMS § 3.12, at 3-33 (3d ed., release no. 8, 2007) ("Truth . . . is a legal construct, a legal fiction, decided with finality so that the matter may be disposed of and [litigants] may get on with their lives.").
41. See In re Ephedra, 393 F. Supp. 2d 181, 193 (S.D.N.Y. 2005) ("Although . . . legal standard[s] [of scientific evidence] may lead to what some scientists might consider an unacceptably high error rate in jury verdicts, the law has tolerated the jury error rate for centuries because it has not yet found a better way of adjudicating disputes.").
42. Douglas L. Weed, Weight of the Evidence: A Review of Concept and Methods, 25 RISK ANALYSIS 1545, 1545 (2005) (finding that "weight of the evidence" is an ambiguous and empty expression referring to multiple forms of scientific analysis or communication).
43. The reader must take care to understand we are not claiming that a collision of opinions, including false ones, is incapable of promoting scientific truth. Indeed, the very process of creative scientific investigation often involves ferocious debates between scientists. Science has both opinions and facts. Some of these opinions turn into facts. But the clash of scientific opinions, without more, simply cannot prove a scientific proposition's truth-value. If science states that a proposition is a fact or impossibility, it is only because a systematic rule-based review of all available evidence, known as EBL, reveals that to be true.
44. See, e.g., Cass R. Sunstein, Free Speech Now, 59 U. CHI. L. REV. 255, 301 (1992) (contending that free speech "is principally about political deliberation");
45. Sally Squires, Rip-flops: In the Information Age, Conventional Medical Wisdom Is Often Overturned, WASH. POST, May 4, 2004, available at http://www.post-gazette.com/pg/04125/310511.stm ("Instead of convening consensus conferences-occasional high-profile gatherings of top experts to update clinical guidelines-today experts cull through hundreds of scientific papers, using statistical models to weigh the combined value of findings. These conclusions often overturn those of individual studies done previously.").
46. See generally Cary Coglianese, The Limits of Consensus, ENV'T, Apr. 1999, at 28-33.
47. Crichton, supra note 14 (describing case examples such as continental drift, memory repression, fiber and colon cancer, hormone replacement therapy, saccharine, margarine, and the etiologies of puerperal fever, pellagra, smallpox, and germs to demonstrate how "consensus" science has historically frustrated scientific explanation).
48. See, e.g., Guzelian et al., supra note 9, at 161 (describing EBL for human toxicology); see also DAVID L. SACKETT ET AL., EVIDENCE-BASED MEDICINE: HOW TO PRACTICE AND TEACH EBM 1 (1999) (describing EBL for clinical medicine).
49. Philip S. Guzelian & Christopher P. Guzelian, Letter to the Editor, Authority-Based Explanation, 303 SCI. 1468, 1468 (2004).
50. Id.; see also Christopher P. Guzelian, The Kindynamic Theory of Tort, 80 IND. L.J. 987, 1004 (2005) (contending that tort law, properly formulated, is predicated upon EBL).
51. All of the following examples are reproduced with permission from Guzelian et al., supra note 9, at 165.
52. Id. (quoting Stefan Saverland & Marc Maegle, A CRASH Landing in Severe Head Injury, 364 LANCET 1291, 1291-92 (2004)).
53. See id. at 189-90 (asserting that EBL "specifically renounces . . . non-evidence-based ideas").
54. ALEXANDER MEIKLEJOHN, POLITICAL FREEDOM: THE CONSTITUTIONAL POWERS OF THE PEOPLE 73 (1960). Just recently, several authors have published well-acclaimed popular press books, contending that the intuition of large crowds of laypersons often outperforms the predictions of single expert witnesses.
55. See generally MALCOLM GLADWELL, BLINK: THE POWER OF THINKING WITHOUT THINKING (2005);
56. JAMES SUROWIECKI, THE WISDOM OF CROWDS (2004). These publications frequently conclude that the discovery of scientific truth would be better conducted if left to the authority of mass groups of slightly educated laypersons rather than to fewer well-educated experts. One obvious inference could be that we should favor the marketplace model over EBL for predicting scientific truth. A person making such a statement implicitly confesses a severe misunderstanding of what EBL offers: proven knowledge in advance of specific situations in which the truth must be identified. Where EBL has already identified a fact or impossibility, there is no need to poll anyone - either en masse or as individual experts - to identify truth because we have ex ante knowledge. Crowd intuition and single-expert intuition are merely popular opinions - they may be right, but they may be wrong. The epistemological problem in both instances is that there is no ex ante knowledge that the opinion is correct. Thus, neither form of intuitive thinking is an optimal method for making decisions. Dr. David Sackett, a pioneer of EBL in medicine, explains: For the problems we're likely to encounter very infrequently ([for example] . . . a man who developed bad pneumonia while trying to reject his heart-lung transplant), we 'blindly' seek, accept, and apply the recommendations we receive from authorities in the relevant branch of medicine. This 'replicating' mode also characterizes the practice of medical students and clinical trainees when they haven't yet been granted independence and have to carry out the orders of their consultants. The trouble with the 'replicating' mode is that it is 'blind' to whether the advice received from the experts is authoritative (evidence-based . . .) or merely authoritarian (opinion-based, resulting from pride and prejudice). . . . If we tracked the care we give when operating in the 'replicating' mode into the literature and appraised it, we would find that some of it was effective, some useless, and some harmful. But in the "replicating" mode we'll never be sure which. SACKETT, supra note 35, at 5;
57. see also CA. Naranjo et al., A Method for Estimating the Probability of Adverse Drug Reactions, 30 CLINICAL PHARMACOLOGY & THERAPEUTICS 239, 243 (1981) (finding little agreement among experts when conventional definitions of adverse drug reactions ("ADRs") were used to make causation assignments of a group of sixty-three randomly selected alleged ADRs, but conversely reporting a high degree of reproducibility in experts' opinions when they used objective criteria); cf. Guzelian & Guzelian, supra note 36, at 1469 ("[B]y combining sparse clinical/epidemiologic data with test results in vitro and in animals, some experts, learned bodies, and regulatory organizations cobble together causal inferences of human harm from chemicals. This practice shrouds assumptions of proof of harm as quantified probabilistic risks of harm.").
58. Where a scientific proposition is presently an uncertainty (i.e., where EBL cannot currently identify whether the proposition is true or false), it might be true that the "best" alternative is to poll large numbers of people to guess correctly. This would explain, for instance (and perhaps not as profoundly as recent popular press authors intend their presentations to seem), why scientists frequently hold large conferences to discuss their hypotheses and conjectures and present their data to each other. But see Colin F. Camerer & E.J. Johnson, The Process-Performance Paradox in Expert Judgment: How Can Experts Know So Much and Predict So Badly?, in TOWARD A GENERAL THEORY OF EXPERTISE: PROSPECTS AND LIMITS (A. Ericsson & J. Smith eds., 1991),
59. reprinted in RESEARCH ON JUDGMENT AND DECISION MAKING (W.M. Goldstein & R.M. Hogarth eds., 1997) (surveying literature to report the uniform finding that experts know more than laymen, but do not do better in most regards in making predictions, and do not best decide analyses or statistical algorithms);
60. Robyn M. Dawes et al., Clinical Versus Actuarial Judgment, 243 SCI. 1668, 1668 (1989) (reviewing numerous ex post studies that indicate simple actuarial equations likewise consistently outperform single-expert predictions);
61. Robyn M. Dawes, The Robust Beauty of Improper Linear Models in Decision Making, 34 AM. PSYCHOLOGIST 571, 571 (1979) (asserting that actuarial equations that weigh variables equally, rather than in accord with their relative importance, but preserve the directionality of a prediction - positive or negative - likewise outperform clinical judgments).
62. See Guzelian, supra note 19, at 49-51.
63. Compare DAVID HUME, AN ENQUIRY CONCERNING HUMAN UNDERSTANDING § § 5, 7 (1748) (rejecting the concept of singular causation), POPPER, supra note 27, at 159-61 (refuting historicism),
64. RICHARD VON MISES, PROBABILITY, STATISTICS AND TRUTH 11 (1957) ("We can say nothing about the probability of death of an individual even if we know his condition of life and health in detail. The phrase 'probability of death', when it refers to a single person, has no meaning at all for us."),
65. Carl G. Hempel, The Function of General Law in History, 39 J. PHIL. 35, 45 (1942) (arguing that when historical explanation "is not amenable to any empirical test . . . [then] it amounts to a pseudo-explanation which may have emotive appeal and evoke vivid pictorial associations, but which does not further our theoretical understanding of the phenomena under consideration"),
66. and Karl R. Popper, The Propensity Interpretation of Probability, 10 BRIT. J. PHIL. SCI. 25, 29 (1959) (rejecting the possibility of identifying singular event propensities),
67. with Ronald N. Giere, Objective Single-Case Probabilities and the Foundations of Statistics, in LOGIC, METHODOLOGY AND PHILOSOPHY OF SCIENCE IV, at 467 (P. Suppes et al. eds., 1973) (arguing that singular-event probabilities are objectively calculable),
68. DAVID W. MILLER, CRITICAL RATIONALISM: A RESTATEMENT AND DEFENCE 25-49 (1994) (contending singular events are provable),
69. J.H. Fetzer, Probability and Objectivity in Deterministic and Indeterministic Situations, 57 SYNTHESE 367, 367 (1983) (arguing that propensity "accommodates the possibility, in principle, of providing a realistic interpretation of ontic indeterminism"),
70. and Peter Menzies, Are Humean Doubts About Singular Causation Justified?, 31 COMM. & COGNITION 339, 340 (1998) (arguing that singular causation is scientifically provable). Still others contend that non-repeatable, historical events and reproducible, predictable observations are each provable, but epistemologically distinct from each other.
71. ELLERY EELLS, PROBABILISTIC CAUSALITY 5-6 (1991);
72. Elliott Sober, Two Concepts of Cause, in PSA: PROCECURE OF THE BIENNIAL MEETING OF THE PHILOSOPHY OF SCIENCE ASSOCIATION 405-24 (Peter Asquith & Philip Kitcher eds., 1985);
73. I.J. Good, A Causal Calculus (I), 11 BRIT. J. PHIL. SCI. 305, 305 (1961).
74. See generally I.J. Good, A Causal Calculus (II), 12 BRIT. J. PHIL. SCI. 43 (1962). As a result, these philosophers argue that different systems of knowledge must be developed (if it is possible to do so) to address each class of propositions. For example, Hitchcock writes: [W]e make at least two different kinds of causal claim, singular and general. With this distinction in mind, we may note that the counterexamples mentioned in the previous section are all formulated in terms of singular causation. So one possible reaction to the counterexamples of the previous section would be to maintain that a probabilistic theory of causation is appropriate for general causation only, and that singular causation requires a distinct philosophical theory. One consequence of this move is that there are (at least) two distinct species of causal relation, each requiring its own philosophical account - not an altogether happy predicament.
75. Christopher Hitchcock, Probabilistic Causation, in THE STANFORD ENCYCLOPEDIA OF PHILOSOPHY (Edward N. Zalta ed., 2007), available at http://plato.stanford.edu/entries/causation- probabilistic. Finally, Gillies, in distinguishing long-run propensity theories and singular propensity theories, states: A long-run propensity theory is one in which propensities are associated with repeatable conditions, and are regarded as propensities to produce in a long series of repetitions of these conditions frequencies which are approximately equal to the probabilities. A single-case propensity theory is one in which propensities are regarded as propensities to produce a particular result on a specific occasion.
76. Donald Gillies, Varieties of Propensity, 51 BRIT. J. PHIL. SCI. 807, 822 (2000).
77. But see DEBORAH LIPSTADT, HISTORY ON TRIAL: MY DAY IN COURT WITH DAVID IRVING 32, 270 (2005) (recounting Irving's dismissed libel trial against Lipstadt for calling Irving a Holocaust denier, during which, to avoid legal liability under British libel law, Lipstadt had to - and did - sufficiently "prove" that Irving's accounts of the Holocaust and Hitler's anti-Semitism were inconsistent with available evidence).
78. See POPPER, supra note 27, at 151. Popper states: [S]elective approaches fulfil functions in the study of history which are in some ways analogous to those of theories in science. It is therefore understandable that they have often been taken for theories. And indeed, those rare ideas inherent in these approaches which can be formulated in the form of testable hypotheses, whether singular or universal, may well be treated as scientific hypotheses. But as a rule, these historical 'approaches' or 'points of view' cannot be tested. They cannot be refuted, and apparent confirmation are therefore of no value, even if they are as numerous as the stars in the sky. We shall call such a selective point of view or focus of historical interest, if it cannot be formulated as a testable hypothesis, a historical interpretation. Historicism mistakes these interpretations for theories. This is one of its cardinal errors. Id. at 139-40.
79. See generally C.S. LEWIS, MIRACLES (Harper Collins 2001) (1947) (arguing that miracles are possible and that God sometimes performs them).
80. See Christopher P. Guzelian, Liability & Fear, 65 OHIO ST. L.J. 713, 729-30 (2004) (discussing logical positivists and the rise of holistic philosophy);
81. see also John Ruscio, The Emptiness of Holism, SKEPTICAL INQUIRER, Mar.-Apr. 2002, at 46 (critiquing the epistemological soundness of holism).
82. See, e.g., JAMES GLEICK, CHAOS: MAKING A NEW SCIENCE 44 (1987) (noting that while scientists traditionally believed "that to write down a system's equations is to understand the system," computers now discover "suggestions of structure amid seemingly random behavior");
83. EDWARD LORENZ, THE ESSENCE OF CHAOS 129 (1993) (concluding that computers have aided scientists in solving previously unsolvable scientific problems).
84. See generally STEPHEN WOLFRAM, A NEW KIND OF SCIENCE (2002) (setting out a theory of "cellular automata").
85. See CHAITIN, supra note 18, at 60 ("[A]ccording to Wolfram, all the randomness in the world is only pseudorandomness generated by simple algorithms! That's certainly a philosophical possibility, but does it apply to this world?"); GREGORY CHAITIN, ON THE INTELLIGIBILITY OF THE UNIVERSE AND THE NOTIONS OF SIMPLICITY, COMPLEXITY AND IRREDUCIBILITY 1 (2002) ("[T]he world of mathematical ideas has infinite complexity and is therefore not fully comprehensible.");
86. GRENZEN UND GRENZÜBERSCHREITUNGEN, XIX. Deutscher Kongress für Philosophie, Bonn, 23-27. September 2002, Vortraege und Kolloquien 517-24 (2004) ("[T]he theoretical physicist Max Born criticized those who think that we can understand Nature by pure thought, without hints from experiments. In particular, he was referring to now forgotten and rather fanciful theories put forth by Eddington and Milne. Now he might level these criticisms at string theory and at Stephen Wolfram's A New Kind of Science.");
87. John Derbyshire, Not Quite Copernicus, NAT'L REV., Sept. 16, 2002, at 52 (book review). Derbyshire notes: I think it more likely that [Wolfram's] book will be forgotten in a few months. What science mainly requires of a theory is predictive power. Since the outcomes of the more interesting cellular automata are . . . essentially and mathematically unpredictable, this requirement opens a nasty epistemological hole in the entire schema. What would be the equivalent of the observations made during the 1919 solar eclipse, which dramatically confirmed Einstein's general theory of relativity? The author offers no ideas. Id.;
88. Steven Weinberg, Is the Universe a Computer?, N.Y. REV. BOOKS, Oct. 24, 2002, at 46 (2002) (book review). Weinberg states: The trouble with Wolfram's conjecture is not only that it has not been proved - deeper trouble is that it has not even been stated in a form that could be proved. What does Wolfram mean by complex? If his conjecture is not to be a tautology, then we must have some definition of complex behavior independent of the notion of universality. . . . [W]hat criterion for complexity can we use that would tell us that it is complex enough for Wolfram's conjecture to apply? Id.
89. One can create inferences about the fossil record or ecology and improve "understanding" through such techniques. It is occasionally even said that these protocols offer "scientific knowledge," although in many of these instances, this parlance is misleading. See, e.g., Jean A. Miller & Thomas M. Frost, Whole-Ecosystem Experiments: Replication and Arguing from Error, in THE NATURE OF SCIENTIFIC EVIDENCE: STATISTICAL, PHILOSOPHICAL, AND EMPIRICAL CONSIDERATIONS 221, 222-23 (Mark L. Taper & Subhash R. Lele eds., 2004) (contending that "[w]hole areas of scientific knowledge . . . involve the use of investigations that . . . do not lend themselves to replication," but conceding that "[c]oncerns have regularly been raised, however, regarding the interpretation of whole ecosystem experiments because of their lack of replication"). One might say, for instance, that scientific methods such as DNA testing "prove" O.J. Simpson killed his wife. While calibrated scientific techniques may narrow the window of possibilities such that the number of logical inferences one may draw about a historical occurrence are few, this is not equivalent to scientific knowledge. See Guzelian et al., supra note 9, at 161, 166 (discussing deficiencies in causation and risk evaluation by toxicologists and stating that "relations quantified through assumptions, inferences or statistical associations are not risks, they are uncertainties").
90. See, e.g., Kasky v. Nike, Inc., 45 P.3d 243, 261 (Cal. 2002). The court held: We . . . reject Nike's argument that regulating its speech to suppress false and misleading statements is impermissible because it would restrict or disfavor expression of one point of view (Nike's) and not the other point of view (that of the critics of Nike's labor practices). The argument is misdirected because the regulations in question do not suppress points of view but instead suppress false and misleading statements of fact. As we have explained, to the extent Nike's speech represents expression of opinion or points of view on general policy questions such as the value of economic "globalization," it is . . . subject to full First Amendment protection. Nike's speech loses that full measure of protection only when it concerns facts material to commercial transactions - here, factual statements about how Nike makes its products. Id. (emphasis added).
91. SACK, supra note 29, § 3.12, at 3-29 to -30; see also Brown v. Allen, 344 U.S. 443, 540 (1953) (Jackson, J., concurring) ("We [judges] are not final because we are infallible, but we are infallible only because we are final.").
92. Groden v. Random House, Inc., 94 Civ. 1074 (JSM), 1994 U.S. Dist. LEXIS 11794, at *21 (S.D.N.Y. Aug. 23, 1994) (rejecting the libel claim because the Kennedy assassination theory of a "grassy knoll shooter" is an unprovable historical proposition, and thus the proposition must be left open to public interpretation under the First Amendment).
93. See L. JONATHAN COHEN, THE PROBABLE AND THE PROVABLE 245-64 (1977);
94. Ronald J. Allen, The Nature of Juridical Proof, 13 CARDOZO L. REV. 373, 393 (1991);
95. Richard A. Posner, An Economic Approach to the Law of Evidence, 51 STAN. L. REV. 1477, 1504 (1999).
96. See Allen, supra note 54, at 393. Professor Allen stated: To the extent that a case generates a discrete question answerable with a "yes" or "no" as a function of direct observation, the mediodology of the physical sciences may be well suited to the intellectual task; but . . . such cases are more a limit than a paradigm of litigation . . . . The central question is often whether a richly textured human episode occurred, and if so, its nature. Id.
97. Empirical (scientific or historical) propositions are distinguishable from moral (rational) propositions. As Peter Markie explains: Rationalists claim that there are significant ways in which our concepts and knowledge are gained independently of sense experience. Empiricists claim that sense experience is the ultimate source of all our concepts and knowledge. Rationalists generally develop their view in two ways. First, they argue that there are cases where the content of our concepts or knowledge outstrips the information that sense experience can provide. Second, they construct accounts of how reason in some form or other provides that additional information about the world. Empiricists present complementary lines of thought. First, they develop accounts of how experience provides the information that rationalists cite, insofar as we have it in the first place. (Empiricists will at times opt for skepticism as an alternative to rationalism: if experience cannot provide the concepts or knowledge the rationalists cite, then we don't have them.) Second, empiricists attack the rationalists' accounts of how reason is a source of concepts or knowledge. Peter Markie, Rationalism Vs. Empiricism, in THE STANFORD ENCYCLOPEDIA OF P4 (Edward N. Zalta ed., 2004), available at http://plato.stanford.edu/ archives/fall2004/entries/rationalism-empiricism/.
98. See Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 831 (1995) ("[V]iewpoint discrimination is the proper way to interpret [religious statement bans]. . . . Religion may be a vast area of inquiry, but it also provides . . . a specific premise, a perspective, a standpoint from which a variety of subjects may be discussed and considered.").
99. Andy Koppelman has suggested obscenity (which he contends causes moral harm) should be considered a de facto political proposition because he doubts the government's capacity to adjudicate moral truths objectively, even if they exist. See generally Andrew Koppelman, Does Obscenity Cause Moral Harm?, 105 COLUM. L. REV. 1635 (2005).
100. See Guzelian, supra note 2, at Sections G-H (discussing the definition of "false" speech as it relates to First Amendment law).
101. Karl Popper coined this term. See POPPER, supra note 27, at 151; supra note 45.
102. See Groden v. Random House, Inc., 94 Civ. 1074 (JSM), 1994 U.S. Dist. LEXIS 11794 (S.D.N.Y. Aug. 23, 1994).
103. Observe that we are not indicating that the Court prohibits all government regulation of speech implicating political or historical propositions. Government may regulate speech implicating non-scientific propositions for many reasons. Intimidation, obscenity, fighting words, incitement to violence, etc. are all categories of speech content that can be regulated without violating the First Amendment. Speech implicating non-scientific propositions, if it falls into such regulable categories, is no less subject to such regulations than speech implicating scientific propositions. See supra Part II.B. Our point is instead that if the Court believes that the government is seeking to inequitably regulate (or has regulated) viewpoints, the Court usually will find this regulation to be impermissible. See Nat'l Endowment for the Arts v. Finley, 524 U.S. 569, 587 (1998) (asserting that, in the context of government art funding, "[a] pressing constitutional question would arise if government funding resulted in the imposition of a disproportionate burden calculated to drive 'certain ideas or viewpoints from the marketplace.'" (quoting Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 116 (1991))); see also United States v. Ballard, 322 U.S. 78,86 (1944). The Ballard Court stated: [F]reedom of religious belief . . . is basic in a society of free men. It embraces the right to maintain theories of life and of death and of the hereafter which are rank heresy to followers of the orthodox faiths. Heresy trials are foreign to our Constitution. Men may believe what they cannot prove. Id.
104. In describing the Court's disdain for viewpoint discrimination, Justice Brennan once stated: We have never held that government may allow discussion of a subject and then discriminate among viewpoints on that particular topic, even if the government for certain reasons may entirely exclude discussion of the subject from the forum. . . . Viewpoint discrimination is censorship in its purest form and government regulation that discriminates among viewpoints threatens the continued vitality of "free speech." Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 61-62 (1983) (Brennan, J., dissenting); see also Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 820 (1995) (stating that selective government interference with speech that implicates religious propositions is unconstitutional viewpoint discrimination); Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 505 (1984) ("[T]he principle of viewpoint neutrality . . . underlies the First Amendment . . . ."). Small exceptions to this general principle have been carved out in later cases. For instance, where the government is funding the viewpoint in question, there are two limited exceptions to the strict scrutiny that viewpoint discrimination usually receives. See Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 541 (2001) ("[V]iewpoint- based funding decisions can be sustained in instances in which the government is itself the speaker . . . or instances, like Rust, in which the government 'used private speakers to transmit information pertaining to its own program.'" (quoting Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 833 (1955))). Where government regulation of an entire category of speech implicating non-scientific content is allowed, select kinds of viewpoint discrimination are likewise permitted. See R.A.V. v. City of St. Paul, 505 U.S. 377, 388-90 (1992).
105. Assume in our hypothetical that there is no dispute that the actor has actually made the televised statement about aspirin's potential to reduce heart-attack risk.
106. See Ezrailson v. Rohrich, 65 S.W.3d 373, 374 (Tex. Ct. App. 2001) (involving a scientist suing other scientists for alleged libel against him and his research in a commentary published in a medical journal).
107. Cf. Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72 (1942). The Chaplinsky Court stated: [I]t is well understood that the right of free speech is not absolute at all times and under all circumstances. There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. . . . [Some] utterances are no essential part of any exposition of ideas, and are of . . . slight social value as a step to truth. Id.; cf. Stanley Ingber, The Marketplace of Ideas: A Legitimizing Myth, 1984 DUKE L.J. 1, 5 (suggesting that just as economic marketplaces may require government intervention, so too may there be a need for government regulation of "communicative market failures").
108. The journalist's statement about John Doe might relate to such propositions as: "Scientologists worship a god," "Scientologists worship only one god," "John Doe is a Scientologist," "John Doe endorses aspirin use," "John Doe endorses aspirin use in people at high risk of heart attack," "Scientologists worship a false god," "John Doe is an actor," "John Doe, an actor, objects to being described in the popular press as an actor," "John Doe endorsed false statements of scientific fact," etc.
109. Free Exercise Clause jurisprudence has most clearly articulated an "objective" test of perception. See Wallace v. Jaffree, 472 U.S. 38, 76, 83 (1985) (O'Connor, J., concurring) (invalidating a statute permitting a moment of silence for private prayer in public schools and stating the "objective observer" test). The objective observer supposedly has limited local knowledge of the scene in which the event occurred and is acquainted with the "text, legislative history, and implementation of the statute," along with general principles of Free Exercise jurisprudence. Id. at 76; see also Sante Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 308 (2000) (endorsing O'Connor's "objective observer" test). These days, courts are turning to surveys to determine reasonable audience perception. See, e.g., McNeil-PPC, Inc. v. Pfizer Inc., 351 F. Supp. 2d 226, 249 (S.D.N.Y. 2005) ("Typically, an implied claim is proven through the use of a consumer survey that shows a substantial percentage of consumers are taking away the message that the plaintiff contends the advertising is conveying. Cases have held that 20% would constitute a substantial percentage of consumers. Survey results are useful and have 'evidentiary value' if the surveys are properly designed and objectively and fairly conducted - for example, they employ 'filters' to screen out individuals whose responses may distort the results; the questions are directed to 'the real issues'; and the questions are not leading or suggestive." (citations omitted)). Slightly ahead of courts in methodology, some social scientists are advocating use of randomized trials to determine the perceptions of advertising. See REX BRIGGS & GREG STUART, WHAT STICKS: WHY MOST ADVERTISING FAILS AND HOW TO GUARANTEE THAT YOURS SUCCEEDS 243-50 (2006). Increasingly, however, psychologists and neuroscientists are coming to accept that there are two distinct modes of implication: cognitive and emotional. The emotional mode of thinking is intuitive and usually subconscious but can dramatically impact the formation and pursuit of beliefs, goals, and preferences. Though courts have not usually considered such emotional perceptions in determining what propositions are implicated by speech, there is mounting evidence that it is necessary to do so to identify accurately what perceptions speech causes.
110. See Robert B. Zajonc, Feeling and Thinking: Preferences Need No Inferences, 35 AM. PSYCHOLOGIST 151 passim (1980) (reporting the first convincing affective experiments).
111. See generally Robert F. Bornstein, Subliminal Mere Exposure Effects, in PERCEPTION WITHOUT AWARENESS: COGNITIVE, CLINICAL, AND SOCIAL PERSPECTIVES 191-210 (Robert F. Bornstein & Thane S. Pittman eds., 1992) (presenting an overview of affective experiments);
112. Paul Ekman, Biological and Cultural Contributions to Body and Facial Movement in the Expression of Emotions, in EXPLAINING EMOTIONS 73 (A.O. Rorty ed., 1980) (demonstrating the universality of certain affective emotional expressions, but the culture-specific nature of cognitive emotional displays) ;
113. Nalini Ambady & Robert Rosenthal, Thin Slices of Expressive Behavior as Predictors of Interpersonal Consequences: A Meta-Analysis, 111 PSYCHOL. BULL. 256 (1992) (describing how a meta-analysis of thirty-eight studies indicated no significant difference in long-term and short-term affects' impact on preferences);
114. Adam K. Anderson & Elizabeth A. Phelps, Lesions of the Human Amygdala Impair Enhanced Perception of Emotionally Salient Events, 411 NATURE 305 (2001) (visual affect);
115. John A. Bargh & T.L. Chartrand, The Unbearable Automaticity of Being, 54 AM. PSYCHOLOGIST 462 (1999) (affective goal formation);
116. Roy F. Baumeister, Ego Depletion: Is the Active Self a Limited Resource?, 74 J. PERSONALITY & SOC. PSYCHOL. 1252 (1998) (suggesting that cognition has a lesser role in the formation of preferences);
117. Marcia K. Johnson et al., Do Alcoholic Korsakoff's Syndrome Patients Acquire Affective Reactions?, 11 J. EXPERIMENTAL PSYCHOL.: LEARNING, MEMORY & COGNITION 22 (1985);
118. Sheila T. Murphy & Robert B. Zajonc, Affect, Cognition, and Awareness: Affective Priming with Optimal and Suboptimal Stimulus Exposures, 64 J. PERSONALITY SOC. PSYCHOL. 723 (1993) (finding that millisecond-long encounters with negative or positive stimuli can produce nonspecific emotional reactions to unrelated stimuli and that longer exposures on the order of seconds produce emotional reactions only to the relevant trigger stimuli);
119. Tim Otto et al., Behavioral and Neuropsychological Foundations of Olfactory Fear Conditioning, 110 BEHAV. BRAIN RESEARCH 119 (2000) (olfactory affect);
120. Sophie K. Scott et al., Impaired Auditory Recognition of Fear and Anger Following Bilateral Amygdala Lesions, 385 NATURE 254 (1997) (auditory affect);
121. Paul Slovic et al., Risk as Analysis and Risk as Feelings: Some Thoughts About Affect, Reason, Risk and Rationality, 24 RISK ANALYSIS 311 (2004) (discussion of emotion-driven thinking);
122. Cass R. Sunstein, Probability Neglect: Emotions, Worst Cases, and Law, 112 YALE L.J. 61 (2002) (same);
123. Robert B. Zajonc, On the Primacy of Affect, 39 AM. PSYCHOLOGIST 117 (1984) (same). Insofar as implication is at least partly subconscious, the question is how to take into account this "unconscious implication" of a communication. It is not altogether clear that surveys that courts presently conduct to measure implications of speech will accurately elicit speech's affective effects on an audience.
124. See generally AUSTIN BURT & ROBERT TRIVERS, GENES IN CONFLICT: THE BIOLOGY OF SELFISH GENETIC ELEMENTS (2006) (proposing that the cognitive lack of awareness of subconscious beliefs and intentions improves an organism's survival potential);
125. MICHAEL S. GAZZANIGA & JOSEPH E. LEDOUX, THE INTEGRATED MIND (1978) (describing the linguistic/affective disjoint in a split-lobed patient);
126. Richard E. Nisbett & Timothy DeCamp Wilson, Telling More Than We Can Know: Verbal Reports on Mental Processes, 84 PSYCH. REV. 231 (1977) (suggesting that introspective verbal responses do not correspond to observation and cognition).
127. In our example, the viewpoint discrimination is the government's sanctioning of a private citizen's tort action against the journalist.
128. See generally, e.g., Richard Peto et al., Large-Scale Randomized Evidence: Large, Simple Trials and Overviews of Trials, 48 J. CLINICAL EPIDEMIOLOGY 23 (1995) (discussing the 1988 ISIS-2 randomized controlled trial results for aspirin's cardioprotective effects in high-risk patients).
129. Why some traditional First Amendment categories of speech content (e.g., commercial speech) receive inferior First Amendment protection has been questioned precisely because the focus in these categories is not on the injury that speech can cause. See generally Alex Kozinski & Stuart Banner, Who's Afraid of Commercial Speech?, 76 VA. L. REV. 627 (1990) (discussing the commercial/noncommercial distinction in First Amendment protection and the reasons why courts have given commercial speech less protection).
130. This is assuming other legal elements of defamation could be met.
131. See Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 830-31 (1995) ("[D]iscrimination against one set of views or ideas is but a subset or particular instance of the more general phenomenon of content discrimination. . . . And, it must be acknowledged, the distinction is not a precise one." (emphasis added) (citing R.A.V. v. City of St. Paul, 505 U.S. 377, 391 (1992); Perry Educ. Ass'n. v. Perry Local Educators' Ass'n., 460 U.S. 37, 46 (1983))).
132. Some readers may argue that the non-scientific religious proposition is not implicated in the doctor's statement (i.e., the reasonable prospective patient entering an abortion clinic would not perceive that proposition from the speech). Regardless of the appeal of this particular example to a particular reader, it should not detract from the general concept we are presenting: the same speech can implicate scientific and non-scientific propositions, and the question must be answered empirically.
133. There is presently no conclusive evidence that abortion increases morbidity or mortality risks to the mother. But see Caroline Moreau et al., Previous Induced Abortions and the Risk of Very Preterm Delivery: Results of the EPIPAGE Study, 112 BRIT. J. OBSTETRICS & GYNAECOLOGY 430, 432-34 (2005) (claiming a 1.7-fold increase in the relative risk of premature births in mothers who have previously aborted in a case-control study of 2837 women).
134. See generally Guzelian, supra note 47 (arguing that tort principles that permit negligent infliction of fear or emotional distress claims are equally applicable to actors and risk communicators).
135. Compare Riley v. Nat'l Fed'n of the Blind of N.C., Inc., 487 U.S. 781, 796 (1988) ("[W]here . . . the component parts of a single speech are inextricably intertwined, we cannot parcel out the speech, applying one test to one phrase and another test to another phrase. Such an endeavor would be both artificial and impractical. Therefore, we apply our test for fully protected expression."), with Semco, Inc. v. Amcast, Inc., 52 F.3d 108, 113 (6th Cir. 1995) ("[A]dvertising 'which links a product to a current public debate' is not thereby entitled to the constitutional protection afforded noncommercial speech. . . . Advertisers should not be permitted to immunize false or misleading product information from government regulation simply by including references to public issues." (quoting Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 68(1983))).
136. While courts understandably struggle with this issue, quantified-decision analysis can help to informatively elucidate which is the preferred decision-rule. See, e.g., Matthew Adler, Fear Assessment: Cost-Benefit Analysis and the Pricing of Fear and Anxiety, 79 CHI.-KENT L. REV 977, 977-78 (2004) (arguing that fear assessment should be a component of quantified decision-making analysis); Guzelian, supra note 47, at 823-24 (describing decision analysis as a consistent, Evidence-Based method for practically assessing risk-benefit tradeoffs, including those involving harms and benefits resulting from communication). In fact, value-preference disputes, such as whether a viewpoint neutrality preference or instead a bias toward prevention of misleading speech content is "better," can only be informatively resolved through decision analysis.
137. See John Kadvany, From Comparative Risk to Ranking Solutions to Multiple-Value Environmental Problems, 6 RISK 333, 334 (1995) ("[V]alues take on significance only within a decision-making context; without the need to choose or prioritize actions, values have little meaning.").
138. Richard Feynman, California Institute of Technology Commencement Address: Cargo Cult Science (1974), available at http://calteches.library. caltech.edu/51/02/CargoCult.htm.
139. Some speech, however, simply asserts a truth-value without explicitly providing a justification. See Dilworth v. Dudley, 75 F.3d 307, 309 (7th Cir. 1996) ("If you say simply that a person is a 'rat,' you are not saying something definite enough to allow a jury to determine whether what you are saying is true or false. If you say he is a rat because . . . whether you are defaming him depends on what you say in the because clause." (ellipsis in original)). Scientific speech that simply makes a naked assertion of a truth-value may still implicate a justification for that truth-value. If the audience perceives that the justification is science, but the actual justification is another method, the speech, despite only literally stating a truth-value, may amount to a misleading scientific opinion.
140. See supra note 68 and accompanying text for the legal definition of implication.
141. See supra Part II.A.1.
142. More formally stated, honest scientific opinion implicates a scientific proposition and a justification other than Evidence-Based analysis for the implicated truth-value of that proposition.
143. More formally stated, misleading scientific opinions implicate that (1) a proposition is a scientific fact when Evidence-Based analysis presently identifies it as either an impossibility or an uncertainty, (2) a proposition is a scientific impossibility when EBL presently identifies it as either a fact or an uncertainty, or (3) a proposition is a scientific uncertainty when EBL presently identifies it as either a fact or an impossibility.
144. MICHAEL PARKIN, MICROECONOMICS 26 (1997).
145. See generally, e.g., BJØRN LOMBORG, THE SKEPTICAL ENVIRONMENTALIST: MEASURING THE REAL STATE OF THE WORLD (2001) (arguing that data do not support many of the assertions made by both the popular press and scientists about particular aspects of the environment); Guzelian, supra note 19, at 41-42 (discussing some advocates' improper use of data to further personal goals);
146. Rikard Levin et al., Indicators of Uncertainty in Chemical Risk Assessments, 39 REG. TOXICOLOGY & PHARMACOLOGY 33, 35-41 (2004) (proposing a typology of uncertainty indicators to improve chemical uncertainty assessment);
147. Maarten C.A. Van Der Sanden & Frans J. Meijman, Evidence-Based Science Communication, 25 SCI. COMM. 272, 273 (2004) (contending that scientific literature, when referencing other studies, must communicate clearly whether those studies are Evidence-Based or not so that cited scientific opinions are not mistaken as knowledge or vice versa);
148. see also Media Doctor Australia, http://www.mediadoctor.org.au/ (last visited Oct. 18, 2007) (grading the accuracy of scientific media reporting).
149. Guzelian & Guzelian, supra note 36, at 1469 (internal citations omitted).
150. HERBERT SPENCER, THE PRINCIPLES OF ETHICS 394 (1904).
151. Kozinski & Banner, supra note 71, at 635.
152. See, e.g., Thompson v. W. States Med. Ctr., 535 U.S. 357, 367 (2002) ("[W]e ask as a threshold matter whether [a pharmacy's] commercial speech . . . is misleading. If so, then the speech is not protected by the First Amendment."); Pearson v. Shalala, 164 F.3d 650, 655 (D.C. Cir. 1999) ("'Truthful advertising related to lawful activities is entitled to the protections of the First Amendment. But when the particular content or method of the advertising suggests that it is inherently misleading or when experience has proved that in fact such advertising is subject to abuse, the States may impose appropriate restrictions.'" (quoting In re R.M.J., 455 U.S. 191, 203 (1982))).
153. Cf. Richard S. Higgins & Fred S. McChesney, Why Wonder Bread Lost No Dough: Materiality, Settlements and the FTC's Ad Substantiation Program 22-23 (Nw. Univ. Sch. of Law, Law & Econ. Research Paper Series, Paper No. 03-13, 2003), available at http://ssrn.com/abstract=428643 (arguing that the FTC should not penalize advertisers when econometric analysis fails to confirm the advertising's allegedly adverse impacts).
154. That is, if science (EBL) has established a scientific proposition at a certain time as (1) fact, (2) impossibility, or (3) uncertainty, scientific opinions that implicate a different truth-value or justification (even if the opinion implicates the correct truth-value) for that same time generally should not enjoy First Amendment protection against tort actions. See Marshall S. Shapo, Fact/Opinion = Evidence/Argument, 91 NW. U. L. REV. 1108, 1111 (1997) ("[W]riters and broadcasters, who deal in images, are responsible for the way they cast those images. Besides portraying a statement as argument, they may also portray it as evidence.").
155. "Avoidable Needlessness" is roughly equivalent to "negligence," not as negligence is traditionally defined, but by a predictable set of liability criteria. See Guzelian, supra note 2, at 5 (defining "liability" as a legal mechanism that deters behavior that causes needless and avoidable injuries); see also Guzelian, supra note 37, at 1001 (stating that an objective, consistent metric for "knowing what we know" at a given time is essential, and that without it, some facts turn out to be nothing more than uncertainties). We suggest that false scientific speech is avoidable if serially made and unduly captivating. Infra Part IV.A.2-3. Another important consideration in liability determination is whether a speaker is using mixed speech that implicates viewpoints or historical interpretations. There may be a need to provide more First Amendment protection of misleading scientific opinions than would be the case if the speech were not mixed. This balance between viewpoint/historical interpretation protection and misleading scientific opinion regulation, where possible, should be made on an empirical, decision-analytic basis.
156. This Article does not consider which liabilities are suitable for a given speech causing a given legal injury.
157. The causal link between speech and injury must be proven, and the injury must be one that is cognizable in criminal law or tort. See Guzelian, supra note 2, at 1; Guzelian, supra note 37, at 987 (contending that tort law can be used to redress only known risks, not uncertainties).
158. Reasonability requires consideration of the costs and benefits of permitting regulation of the speech or instead protecting the speech under the Constitution. This is ideally achieved by decision analysis and Evidence-Based psychological evaluation of the speech's effect. See discussion supra note 63 and accompanying text.
159. Brainy Quote, http://www.brainyquote.eom/quotes/quotes/j/ jackkevork226136.html (last visited Oct. 17, 2007).
160. N.Y. Times Co. v. Sullivan, 376 U.S. 254, 281-82 (1964) ("'Any one claiming to be defamed by the communication must show actual malice or go remediless. This privilege extends to a great variety of subjects, and includes matters of public concern, public men, and candidates for office.'" (quoting Coleman v. MacLennan, 98 P. 281, 285 (Kan. 1908))).
161. See supra Part III.A (discussing a hypothetical involving an accusation that an actor endorses "junk science").
162. For instance, whether a statement is "of public concern" is sometimes determinative of whether an actual-malice standard applies in defamation. See Phila. Newspapers, Inc. v. Hepps, 475 U.S. 767, 774 (1986) (noting that a private plaintiff suing a media defendant need not prove actual malice if the defamation does not implicate a matter of public concern); see also Huggins v. Moore, 726 N.E.2d 456, 460 (N.Y. 1999) ("[Our] standard is deferential to professional journalistic judgments. Absent clear abuse, the courts will not second-guess editorial decisions as to what constitutes matters of genuine public concern . . . ."). The author questions whether one could ever judge that one scientific proposition is "of public concern" more than is another. While historical events may be differentiated on this basis, all scientific knowledge is of public concern. Theoretically, this means all misleading scientific opinions, however damaging, are protected in defamation law. This is not consistent with free-speech theory or limited precedent. See Unelko Corp. v. Rooney, 912 F.2d 1049, 1054-55 (9th Cir. 1990) (holding that, in a case of a telecast editorial criticizing a commercially available rain repellant for automobile windshields, the claim was actionable because the implicated proposition was objectively verifiable); see also Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 769 (1985) (White, J., concurring) (stating that adherence to the actual-malice standard is improvident because it "countenances two evils: first the stream of information . . . is polluted and often remains polluted by false information; and second the reputation and professional life of the defeated plaintiff may be destroyed by falsehoods that might have been avoided with a reasonable effort to investigate the facts"). Further, the standard of conduct in defamation usually turns on a private-or-public-figure distinction. Yet it is unresolved whether this distinction applies to misleading opinions. See SACK, supra note 29, § 4.2.4.3, at 4-24 ("[Courts have not resolved] whether the fact that the plaintiff is a public figure or public official enters into the opinion calculus."). Moreover, even for non-scientific propositions, Gertz established that defamation liability for media defendants can exist, absent actual malice, for "private plaintiffs." See Gertz v. Robert Welch, Inc., 418 U.S. 323, 347 (1974) ("We hold that, so long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual."); see also Dun & Bradstreet, 472 U.S. at 763 (holding that a private plaintiff could recover against a non-media defendant "absent a showing of actual malice . . . when the defamatory statements do not involve matters of public concern"). Thus, actual malice is not even the inevitable standard of conduct for defamation.
163. Gertz, 418 U.S. at 395 (White, J., dissenting).
164. Stephen Holden, Joan Baez Goes Back to Her Folk-Club Roots, N.Y. TIMES, Oct. 24, 1992.
165. Garrison v. Louisiana, 379 U.S. 64, 74 (1964); see also St. Amant v. Thompson, 390 U.S. 727, 728, 731 (1968). In St. Amant, the Court defined "actual malice" as making a statement with knowledge that it was false or with reckless disregard of whether it was false or not. . . . [R]eckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Id.
166. But see Blatty v. N.Y. Times Co., 728 P.2d 1177, 1182 (Cal. 1988) ("Although the limitations that define the First Amendment's zone of protection for the press were established in defamation actions, they are not peculiar to such actions but apply to all claims whose gravamen is the alleged injurious falsehood of a statement.").
167. See, e.g., McNeil-PPC, Inc. v. Pfizer Inc., 351 F. Supp. 2d 226, 249 (S.D.N.Y. 2005). The court held: Typically, an implied claim is proven through the use of a consumer survey that shows a substantial percentage of consumers are taking away the message that the plaintiff contends the advertising is conveying. Cases have held that 20% would constitute a substantial percentage of consumers. . . . [T]he plaintiff need not rely on consumer survey evidence to prove an implied falsity claim if the plaintiff "adequately demonstrates that a defendant has intentionally set out to deceive the public, and the defendant's deliberate conduct in this regard is of an egregious nature." In these circumstances,"a presumption arises that consumers are, in fact, being deceived." Id. (quoting Johnson & Johnson * Merck Consumer Pharm. Co. v. Smithkline Beecham Corp., 960 F.2d 294, 297-98 (2d Cir. 1992)); cf. Milkovich v. Lorain Journal Co., 497 U.S. 1, 23-24 (1990) (Brennan, J., dissenting) ("I . . . agree with the Court that the 'statement' that the plaintiff must prove false [in a defamation suit] . . . is not invariably the literal phrase published but rather to what a reasonable reader would have, understood the author to have said." (emphasis added)).
168. See Roberta Klein & Roger A. Pielke, Jr., Bad Weather? Then Sue the Weatherman! Part II: Legal Liability for Private Sector Forecasts, 83 BULL. AM. METEOROLOGICAL SOC'Y 1801, 1805 (2002) (listing cases and concluding that "[a]bsent statutory immunity or a valid limitation of liability clause, private sector forecasters who are sued will have to defend lawsuits for inaccurate forecasts on their merits");
169. R.B. Loper, "Red Sky in the Morning, Forecasters Take Warning": The Liability of Meteorologists for Negligent Weather Forecasts, 66 TEX. L. REV. 683, 683-97 (1988) (describing cases against public meteorologists employed by the National Weather Service). But see Guzelian, supra note 47, at 764 n.143. In that article, I stated: Taken to its logical extreme, should risk communicators be liable for failing to report at all on an epistemic risk, to leave people totally in the dark about a risk? We think not. Tort law typically does not assign liability for omissions (i.e., failures to risk communicate). Moreover, some . . . risks may be so small that they are not worthy of protracted attention - they are not news. Finally, if attention were given to such risks, then the risk communicator paradoxically is threatened with liability for upwardly skewing risk perceptions. Id. (emphasis in original)).
170. In re Factor VIII or IX Concentrate Blood Prods. Litig., 25 F. Supp. 2d 837, 842 (N.D. Ill. 1998) (permitting negligence liability for the National Hemophilia Foundation's false statements about the safety of an HIV-tainted blood supply, partly because of "the well-established principle that the protections of the First Amendment do not shield the press from laws of general applicability").
171. See, e.g., Cowras v. Hard Copy, 56 F. Supp. 2d 207, 211 (D. Conn. 1999) (holding media defendants liable under a negligent infliction of emotional distress claim because they "made no attempt to ascertain the truth for fear of killing what they believed was a 'great story'"). See generally Guzelian, supra note 47 (proposing that the media and others share liability for negligently creating clinically serious fears of physical harm or death).
172. While courts are not yet using EBL, they are at least taking the first steps to prevent expert witnesses from offering misleading opinions: "[Courts must] prohibit an expert witness from testifying that causality has been established 'to a reasonable degree of scientific certainty' when the very exacting standards for determining scientific certainty have not been met." In re Ephedra, 393 F. Supp. 2d 181, 190 (S.D.N.Y. 2005). Such misleading testimony amounts to a special case of false scientific speech: false speech within a courtroom trial. Although there used to be absolute immunity protecting expert witnesses from such liability, more recent cases have started to undermine this immunity. Compare Briscoe v. LaHue, 460 U.S. 325, 334 (1983) (holding that expert witnesses enjoy absolute immunity from 42 U.S.C. § 1983 actions by opposing parties for damages caused by misleading or incorrect testimony), Buckley v. Fitzsimmons, 919 F.2d 1230, 1245 (7th Cir. 1990) (granting absolute expert-witness immunity for testimony in a criminal prosecution), Kahn v. Burman, 673 F. Supp. 210, 212 (E.D. Mich. 1987) (indicating that a physician who prepared a report and gave a deposition in a medical-malpractice suit was entided to immunity from an opposing-party suit), Collins v. Walden, 613 F. Supp. 1306, 1314 (N.D. Ga. 1985) (stating that the rationale of Briscoe is equally applicable to other forms of testimony such as depositions and affidavits), Howard v. Drapkin, 271 Cal. Rptr. 893, 902-03 (Cal. Ct. App. 1990) (indicating that a psychologist hired by parents to evaluate an abuse allegation for a custody case was entitled to absolute immunity), Wagner v. Bd. of County Comm'rs, 933 P.2d 1311, 1312 (Colo. 1997) (giving absolute immunity for testimony before a grand jury), Murphy v. A. A. Mathews, 841 S.W.2d 671, 680 & n.11 (Mo. 1992) (stating that a party may sue its own expert, but adverse expert witnesses are not subject to liability), Bruce v. Byrne-Stevens & Assoc. Eng., Inc., 776 P.2d 666, 670 (Wash. 1989) (granting absolute expert immunity from retaining-party suit), and Elmore v. Van Horn, 844 P.2d 1078, 1084-86 (Wyo. 1992) (indicating that a counselor hired by a parent to evaluate a child for potential abuse was immune from liability to the other parent for harm caused by an affidavit prepared for custody hearing), with Pollock v. Panjabi, 781 A.2d 518, 529 (Conn. Super. Ct. 2000) (holding that witness immunity does not apply to a contractual poor-performance claim), Marrogi v. Howard, 805 So.2d 1118, 1133 (La. 2002) ("With no sanction for incompetent preparation, however, an expert witness is free to prepare and testify without regard to the accuracy of his data or opinion. We do not see how the freedom to testify negligently will result in more truthful expert testimony."), Bolton v. Jones, M.D., 401 N.W.2d 894, 898-99 (Mich. Ct. App. 1986) (reinstating a negligence action against a psychologist who recommended the discontinuation of family supervision), Levine v. Wiss & Co., 478 A.2d 397, 399 (N.J. 1984) (court-appointed expert accountant may be held liable for negligence if he deviates from accepted standards of his profession), L.L.M.D. of Mich., Inc. v. Jackson-Cross Co., 740 A.2d 186, 191 (Pa. 1999) ("The goal of ensuring that the path to truth is unobstructed and the judicial process is protected, by fostering an atmosphere where the expert witness will be forthright and candid in stating his or her opinion, is not advanced by immunizing an expert witness from his or her negligence in formulating that opinion."), and James v. Brown, 637 S.W.2d 914, 917-18 (Tex. 1982) (per curiam) (stating that a plaintiff committed involuntarily to a mental institution may sue his childrens' expert witnesses for negligent psychiatric diagnosis); see also Mark Hanson, Experts Are Liable, Too, ABA J., Nov. 2000, at 17 (indicating that several states permit expertwitness liability in civil actions by the witness' retaining party); Leslie R. Masterson, Witness Immunity or Malpractice Liability for Professionals Hired as Experts?, 17 REV. LITIG. 393, 399-407 (1998) (discussing witness immunity as applied to "friendly" and adverse expert witnesses). Court-appointed experts often enjoy a quasi-judicial immunity in addition to whatever general expert-witness immunity may shield their testimony or findings of fact. See Huges v. Long, 242 F.3d 121, 130 (3d Cir. 2001) (indicating that court-appointed experts are immune to malpractice claims by the parties to a case); Moses v. Parwatikar, 813 F.2d 891, 893 (8th Cir. 1987) (holding that a court-appointed psychiatrist has immunity from suit for a competency and sanity evaluation)
173. STEVEN G. BRODY & BRUCE E.H. JOHNSON, ADVERTISING AND COMMERCIAL SPEECH: A FIRST AMENDMENT GUIDE § 8:1, at 1-2 (2d ed. 2004 & Supp. 2007) ("[T]he law of defamation, including constitutional principles applicable to defamation claims, has developed a relatively sophisticated and stable body of legal rules and principles when applied to noncommercial speech. The same cannot be said for the trade libel or product disparagement tort or for defamation law as applied to commercial speech.").
174. Compare Procter & Gamble Co. v. Amway Corp., 242 F.3d 539, 546-49 (5th Cir. 2001) (refusing to apply the actual-malice standard to Lanham Act and disparagement claims), U.S. Healthcare, Inc. v. Blue Cross of Greater Phila., 898 F.2d 914, 937 (3d Cir. 1990) (finding that the traditional constitutional limit of actual malice does not apply to defamation arising from commercial advertising), and Fanelle v. LoJack Corp., No. CIV.A. 99-4292, 2000 WL 1801270, at *8 (E.D. Pa. Dec. 7, 2000) (finding that non-media defendants do not receive constitutional defamation protections for advertising and must even bear the burden of proof with respect to truth of the statement), with Nat. Life Ins. Co. v. Phillips Publ'g, Inc., 793 F. Supp. 627, 648 (D. Md. 1992) (finding that the actual-malice standard applies to defamatory commercial speech about public figures), Melaleuca, Inc. v. Clark, 78 Cal. Rptr. 2d 627, 639 (Cal. Ct. App. 1998) (stating that a finding of no actual malice means a scientist is not liable for false disparagement of a hygiene product), and Caveman Adventures U.N., Ltd. v. Press-Citizen Co., 633 N.W.2d 757,
175. See supra Part III.B.
176. Precisely because much speech has mixed content, Judge Alex Kozinski and Stuart Banner have argued (correctly, in the author's estimation) that it is senseless to maintain the traditional distinction in the First Amendment protection between commercial and non-commercial speech. See Kozinski & Banner, supra note 71 passim; see also United States v. Bell, 414 F.3d 474, 480 n.6 (3d Cir. 2005) ("We are mindful generally of the 'difficulty of drawing bright lines that will clearly cabin commercial speech in a distinct category.' . . . We have also noted that 'often, speech consists of complex mixtures of commercial and noncommercial elements.'" (quoting City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 419 (1993))); Kasky v. Nike, Inc., 45 P.3d 243, 253-54 (Cal. 2002). The Kasky court stated: [T]he category of commercial speech consists at its core of "'speech proposing a commercial transaction.'" . . . Although in one case the court said that this description was the "test for identifying commercial speech," in other decisions, the Supreme Court has indicated that the category of commercial speech is not limited to this core segment. . . . [Subsequently] the United States Supreme Court has acknowledged that "ambiguities may exist at the margins of the category of commercial speech." Id. (internal citations omitted). However, Kozinski and Banners's implied solution effectively leaves all speech content unregulated in deference to its protected implications. Abdicating all potential for legal liability, however, admits defeat in the face of the problem of injurious false speech-particularly false scientific speech-that this essay identifies.
177. See, e.g., Hustler Magazine v. Falwell, 485 U.S. 46, 56 (1988) (requiring public figures to prove actual malice in intentional-infliction-of- emotional-distress cases in which patently offensive speech could not reasonably have been interpreted as stating actual facts about the public figure involved, but simultaneously insisting that its invocation of the actual malice rule "is not merely a 'blind application' of the New York Times standard . . . [but rather] reflects our considered judgment that such a standard is necessary to give adequate 'breathing space' to the freedoms protected by the First Amendment").
178. See Winter v. Putnam's Sons, 938 F.2d 1033, 1034 (9th Cir. 1991) (ruling against plaintiffs who needed liver transplants after relying on a book about wild mushrooms that incorrectly identified poisonous mushrooms as safe to eat); Jones v. Lippincott Co., 694 F. Supp. 1216, 1218 (D. Md. 1988) (granting summary judgment in favor of a publisher when enema instructions in a nursing textbook caused the plaintiffs injury); Lewin v. McCreight, 655 F. Supp. 282, 283-84 (E.D. Mich. 1987) (ruling against plaintiffs who followed instructions in a metallurgy book that caused an explosion); Demuth v. Merck & Co., 432 F. Supp. 990, 995 (E.D.N.Y. 1977) (ruling in favor of the defendant-publisher when an error concerning the toxicity of triethylene glycol in a chemical encyclopedia caused the loss of plaintiff's customers); Cardozo v. True, 342 So.2d 1053, 1056 (Fla. Ct. App. 1977) (ruling that the publisher and author of a cookbook was not liable for its failure to warn of poisonous ingredients); Alm v. Van Nostrand Reinhold Co., 480 N.E.2d 1263, 1267 (111. Ct. App. 1985) (ruling in favor of a publisher and author for publishing instructions for making tools that led to the plaintiffs injury); Walter v. Bauer, 439 N.Y.S.2d 821 (N.Y. Sup. Ct. 1981), aff'd, 451 N.Y.S.2d 533, 534 (N.Y. 1982) (finding no liability for an elementary science textbook experiment that caused an eye injury); Smith v. Linn, 414 A.2d 1106, 1109 (Pa. Commw. Ct. 1980) (ruling in favor of a publisher after a protein diet described in a book allegedly caused a woman's death); see also Christopher Dreher, What Kevin Trudeau Doesn't Want You to Know About, SALON.COM, July 26, 2005, http://dir.salon.com/story/books/feature/2005/07/29/trudeau/index.html (describing a famed television infomercial huckster's successful pandering and sales of medical-advice books rather than physical products to avoid Federal Trade Commission fraud liability).
179. See Gordon & Breach Sci. Publ'g v. Am. Inst. of Physics, 859 F. Supp. 1521, 1544-45 (S.D.N.Y. 1994) (ruling that there is no liability for false information published in a peer-reviewed, scholarly journal). But see Gordon & Breach Sci. Publ'g v. Am. Inst, of Physics, 986 F. Supp. 242 (S.D.N.Y. 1997), aff'd, 166 F.3d 438, 439 (2d Cir. 1999) (holding that the plaintiffs were not required to reimburse the defendants $137,000 in attorney's fees after the plaintiffs' loss in the case).
180. Miller v. Rand McNally, 595 So.2d 1367, 1368 (Ala. 1992) (holding in favor of a publisher for an alleged error in a road map).
181. Brocklesby v. United States, 767 F.2d 1288, 1295-97 (9th Cir. 1985); Saloomey v. Jeppesen & Co., 707 F.2d 671, 676-78 (2d Cir. 1983); Aetna Cas. & Sur. Co. v. Jeppesen & Co., 642 F.2d 339, 342-44 (9th Cir. 1981); Fluor Corp. v. Jeppesen & Co., 216 Cal. Rptr. 68, 72-75 (Cal. Ct. App. 1985).
182. RONALD B. STANDLER, INFOTORTS 7 (2006), http://www.rbs2.com/infotort.pdf.
183. RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 19 cmt. d, at 269 (1998).
184. Dreher, supra note 115. We might well question why "book immunity" applies only to books, road maps, and scholarly articles. Do book publishers deserve exceptional First Amendment protections for the dissemination of false information relative to alternative media formats such as television, radio, DVD, Internet, blogs, e-mail, etc.?
185. Supreme Court defamation precedent squarely supports this conclusion. See Gertz v. Robert Welch Inc., 418 U.S. 323, 340, 346 (1974). The Court stated: Our decisions recognize that a rule of strict liability that compels a publisher or broadcaster to guarantee the accuracy of his factual assertions may lead to intolerable self-censorship. . . . Nor does the Constitution require us to draw so thin a line between the drastic alternatives of the New York Times privilege and the common law of strict liability for defamatory error. Id.
186. CARL SAGAN, THE DEMON HAUNTED WORLD: SCIENCE AS A CANDLE IN THE DARK 241 (1996).
187. See supra Part IV.A.2 (discussing strict-liability immunity).
188. In some instances, the First Amendment imposes restraints on lawsuits seeking damages for injurious falsehoods or misleading statements. It does so "to eliminate the risk of undue self-censorship and the suppression of truthful material." Herbert v. Lando, 441 U.S. 153, 172 (1979). This elimination and suppression thereby gives freedom of expression the "breathing space" it needs to survive. Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 513 (1984) (quoting N.Y. Times Co. v. Sullivan, 376 U.S. 254, 271-72 (1964)). Thus, "some false and misleading statements are entitled to First Amendment protection in the political realm." Rubin v. Coors Brewing Co., 514 U.S. 476, 495 (1995) (Stevens, J., concurring) (citation omitted).
189. See Guzelian, supra note 2, at 9 (arguing that "a person must be able to ascertain that her contemplated behavior will cause a needless and avoidable risk . . . [o]nly then can she decide whether to modify her behavior to avoid liability for it"); Guzelian, supra note 37, at 1008 (stating that, "without risk prioritization, coherent risk deterrence does not occur").
190. Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 773 (1985) (White, J., concurring).
191. See COLUMBIA ENCYCLOPEDIA 2308 (6th ed. 2000) (defining propaganda).
192. Guzelian, supra note 47, at 845-46; see also Virginia v. Black, 538 U.S. 343, 363 (2003). The Black Court stated that "[t]he First Amendment permits Virginia to outlaw cross burnings done with the intent to intimidate because burning a cross is a particularly virulent form of intimidation." Id. (emphasis added).
193. ILA PHILLIP E. AREEDA, HERBERT HOVENKAMP & JOHN L. SOLOW, ANTITRUST LAW: AN ANALYSIS OF ANTITRUST PRINCIPLES ANDTHEIR APPLICATION § 5A, at 89 (2d ed. 2002).
194. See Heary Bros. Lightning Prot. Co. v. Lightning Prot. Inst., 287 F. Supp. 2d 1038, 1048 (D. Ariz. 2003) ("Different courts have taken different positions on whether speech that is . . . false or misleading may constitute 'improper' or unreasonable conduct that can form the basis of antitrust liability." (citations omitted)); cf. Associated Press v. United States, 326 U.S. 1, 28-29 (1945) (Frankfurter, J., concurring). Justice Frankfurter stated: [T]he freedom of enterprise protected by the Sherman Law necessarily has different aspects in relation to the press than in the case of ordinary commercial pursuits. [But] [t]he interest of the public is to have the flow of news not trammeled by the combined self-interest of those who enjoy a unique constitutional position precisely because of the public dependence on a free press. A public interest so essential to the vitality of our democratic government may be defeated by private restraints no less than by public censorship. Id.; see also infra note 138.
195. See generally CASS SUNSTEIN, REPUBLIC.COM (2002).
196. We include a "consent" escape clause because the First Amendment is not compatible with the punishment of the internal beliefs of advocacy groups, such as a "Science-Has-Shown-the-Earth-Is-Flat Society." That is, the First Amendment likely protects groups of individuals who, by mutual consent, elect to believe in and communicate to each other misleading scientific opinions and would continue to believe in and act upon those opinions, even if they had known of a proposition's Evidence-Based conclusion at the time of the speech. Without such protection, predictable liability might infringe upon an organization's First Amendment right not to associate with unwanted members. See Boy Scouts of Am. v. Dale, 530 U.S. 640, 648, 653 (2000). The Court stated: Forcing a group to accept certain members may impair the ability of the group to express those views, and only those views, that it intends to express. Thus, "[f]reedom of association . . . plainly presupposes a freedom not to associate." . . . As we give deference to an association's assertions regarding the nature of its expression, [the Court] must also give deference to an association's view of what would impair its expression. Id. (quoting Roberts v. U.S. Jaycees, 468 U.S. 609, 622 (1984)); Hurley v. Irish-Am. Gay, Lesbian, & Bisexual Group of Boston, 515 U.S. 557, 570 (1995) ("The selection of contingents to make a parade is entided to [First Amendment] protection."); United States v. Ballard, 322 U.S. 78, 86 (1944) ("Freedom of belief . . . is basic in a society of free men. . . . Men may believe what they cannot prove."). There will naturally be debate about whether member consent must be express or implied to defeat scientific-speech liability. We think a less restrictive standard of implied consent conforms better to predictable liability principles, provided that the inquiry is proposition-specific, just as implied consent, where permitted, functions in tort. Blanket implied consent (implied consent that is not proposition-specific) would allow a membership organization to escape liability simply by making its members sign a shrink-wrap agreement stating "whatever this organization espouses may mislead about scientific fact(s) or uncertainties and the reader impliedly consents to such speech for any such proposition, regardless of resulting injury."
197. Some argue that the First Amendment affords absolute immunity for a private noncommercial organization from member suit. Others have offered compelling counterarguments why this is not so. Andrew Koppelman, Should Noncommercial Associations Have an Absolute Right to Discriminate?, LAW & CONTEMP. PROBS., Autumn 2004, at 27.
198. Brainy Quote, http://www.brainyquote.eom/quotes/quotes/r/ rogerbacon192804.html (last visited Oct. 17, 2007).
199. 1 FOWLER V. HARPER & FLEMING JAMES, LAW OF TORTS §5.28, at 456 (1956) (footnote omitted).
200. Milkovich v. Lorain Journal Co., 497 U.S. 1, 3 (1990).
201. Id. at 19.
202. Id. (quoting Judge Friendly in Cianci v. New York Times Publication Co., 639 F.2d 54, 64 (2d Cir. 1980)).
203. Id. at 18-19.
204. SACK, supra note 29, § 4.2.4.2, at 4-15.
205. See Guzelian, supra note 2, at 21-28, for a discussion about the legal irrelevance of any speech's literal falsity.
206. RESTATEMENT (SECOND) OF TORTS § 566 cmt. a (1977) ("According to the majority rule, the privilege of fair comment applied only to an expression of opinion and not to a false statement of fact, whether it was expressly stated or implied from an expression of opinion." (emphasis added)). The provable true (or false) implication to any speaker's scientific opinion is that "what the speaker thinks about the scientific proposition's truth-value or justification is (not) a reflection of the state of scientific knowledge."
207. See supra Part III.A-B, D.
208. Because so many people still improperly equate learned experts' opinions with scientific knowledge, certain audiences always may regard an expert's speech content as scientific fact, even if those audiences understand that the speech is the speaker's scientific opinion. The Supreme Court seems to have suggested that where this is the case, the speaker might still be held liable for speaking to that audience. See McDermott v. Biddle, 674 A.2d 665, 667 (Pa. 1996) (holding three allegedly defamatory articles to be true when published in the Philadelphia Inquirer but false when republished in a tabloid).
209. See Metabolite Int'l v. Wornick, 264 F.3d 832, 847-48 (9th Cir. 2001) (dismissing on First Amendment grounds a trade-libel claim against a physician who, in a videotaped interview, stated that "abuse" of plaintiff's herbal supplements "can lead to death. But I mean, you can die from taking this product," but rejecting the reporter and television station's argument that the First Amendment likewise protected their broadcasted sound bite, in which they only aired the physician's statement, "But I mean, you can die from taking this product"). Mass broadcasters, in particular, have been held up to greater First Amendment scrutiny than other speakers. Originally, this result was justified on the basis of spectrum scarcity, see Red Lion Broad. Co. v. FCC, 395 U.S. 367, 390 (1969), but more recendy, the Court seems to have indicated that a separate rationale - that "the broadcast media have established a uniquely pervasive presence in the lives of all Americans" - justifies lesser standards of First Amendment protection for broadcasters than other speakers. See FCC v. Pacifica Found., 438 U.S. 726, 748 (1978).
210. This statement, incidentally, is precisely consistent with our proposal that the communicative reach of a speaker must be considered in assessing potential false-scientific-speech tort liability. See supra Part IV.A.3. To those who suggest that there is an implicit guarantee of equal treatment in upholding an individual's freedom of speech, we might be reminded of Lord Acton's comment on the French Revolution: "The passion for equality made vain the hope of freedom." Gertrude Himmelfarb, Lord Acton: In Pursuit of First Principles, NEW CRITERION, June 2000, at 21, 25.
211. COLIN JARMAN, BOOK OF POISONOUS QUOTES 53 (1993).
212. This distinction already has been recognized, although not fully explored, in the context of defamation. A rarely invoked cause of action, "libel by fiction," permits a plaintiff to recover for injurious, false statements of fact made during a purported fictional speech or parody. See Geisler v. Petrocelli, 616 F.2d 636, 640 (2d Cir. 1980) (allowing a libel-by-fiction claimant to demonstrate that an alleged fictional defamation was "of and concerning" him); Spahn v. Julian Messner, Inc., 233 N.E.2d 840, 842 (N.Y. 1969) (suing for fictitious defamation under state "right to publicity" statute) ; see also Isidore Silver, Libel, the "Higher Truths" of Art, and the First Amendment, 126 U. PA. L. REV. 1065, 1075 (1978); Julie Hilden, The Texas Supreme Court's Libel-by-Fiction Case: A Key First Amendment Controversy, FINDLAW, Dec. 9, 2003, http://writ.news.findlaw.com/hilden/20031209. html.
213. BrainyQuote, http://www.brainyquote.com/quotes/quotes/w/winstonchu103564. html (last visted Oct. 18, 2007).
214. See SACK, supra note 29, § 11.2, at 11-3 (noting that most states have retraction statutes that limit the defamation damages that a media defendant must pay if no retraction is demanded within a time limit specified by statute). But see Sparagon v. Native Am. Publishers, Inc., 542 N.W.2d 125, 134 (S.D. 1996) (stating that a plaintiff's failure to demand a retraction does not prevent recovery of any defamation damages except punitive damages (citing Clementson v. Minn. Tribune Co., 47 N.W. 781, 781 (Minn. 1891))).
215. See, e.g., Cox v. Nasche, 70 F.3d 1030, 1031 n.2 (9th Cir. 1995) ("'[T]he consent of another to the publication of defamatory matter concerning him is a complete defense to his action for defamation.'" (quoting RESTATEMENT (SECOND) TORTS § 583 (1977))). In determining when to recognize such waivers, courts may have to consider that defamatory scientific speech (speech that defames and that does so by falsely implicating scientific propositions) causes more damage than mere defamation. It also misleads the audience about the state of scientific knowledge. Express (contractual) or implied waiver of liability by the defamed does not take into account this broader social externality that misleading scientific opinion causes.
216. Obviously, standing requirements must be established, too.
217. See Time, Inc. v. Hill, 385 U.S. 374, 405 n.2 (1967) (Black, J., concurring). Justice Black stated: It is undeniable that falsity may be published, especially in the political arena, with what may be considered "good" motives - for example a good-faith belief in the absolute necessity of defeating an "evil" candidate. But the Court does not remove state power to control such conduct, thus underlining the strong social interest in discouraging false publication. Id. (emphasis added).
218. See 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 503 (1996) ("The First Amendment directs us to be especially skeptical of regulations that seek to keep people in the dark for what the government perceives to be their own good.").
219. See generally Guzelian, supra note 2 (discussing precautionary-principle standard setting); Guzelian, supra note 47 (demonstrating that traditional torts of fear or negligent infliction of emotional distress logically apply to misleading communicators).
220. Liberty-Tree.ca, Quote from Fredrich August von Hayek, http://quotes.liberty-tree.ca/quote/fredrich_august_von_hayek_quote_dea9 (last visited OcL 18, 2007).
221. I have previously addressed my concerns raised by this Article in a sister article. See Guzelian, supra note 2.
222. What Quote, http://www.whatquote.com/quotes/Albert-Einstein/2241-All-Our- science-mea.htm (last visited Feb. 4, 2008).