Some legal threats are so very foolish that they prompt me to look around suspiciously, wondering if I am being punked.
Take this one: a researcher thinks that that he can bring civil and criminal charges against the proprietors of a web site for their report about him, even though he concedes the report was true, because of the web site's name.
The chemist in question is Dr. Ariel Fernandez, a researcher, pharmaceutical consultant, and Vice President and Chief Scientific Officer of a pharmaceutical start-up. His impressive qualifications include a broad field of scientific interest, a PhD from Yale in chemical physics, and numerous accolades and publications. He also has no grasp whatsoever of free speech or defamation law, and no apparent interest in learning — at least not the easy way.
The web site in question is Retraction Watch. I recently discussed other foolish threats made against them, and discussed their mission: offering a "window on the scientific process" by which scientific articles are criticized, retracted, or modified.
Last week Retraction Watch reported that one of Dr. Fernandez' publications — “Subfunctionalization reduces the fitness cost of gene duplication in humans by buffering dosage imbalances" — had been the subject of an "expression of concern." In the community of scientific journals, an "expression of concern" is viewed as an alternative to a retraction when there are doubts about an article a journal has published.
Retraction Watch titled its post "“Conflicting investigations” prompt expression of concern in BMC Genomics." The text of the post twice identifies the response in question as an expression of concern. The post links to the expression of concern, which is prominently labeled as an expression of concern. The post does not take a stand on whether the "expression of concern" is accurate, and notes that only one of Dr. Fernandez' three affiliated institutions expressed concern, and that another of the institutions investigated and found no basis for concern.
Nonetheless, Dr. Fernandez has threatened Retraction Watch with immediate civil and criminal action. His theory: an expression of concern is not a retraction, and therefore it is defamatory to feature on a blog called "Retraction Watch."
It was brought to my attention that the “Expression of Concern” to be published in BMC Genomics in relation to my contribution to BMC Genomics was published already by you as a retraction in “Retraction Watch”, BIOMED Central and numerous other places on the web. An Expression of Concern is not a retraction. I must ask you to please remove your libel from Retraction Watch and from all the other sites where you have posted your defamatory piece since it has damaging consequences to my reputation. If you fail to do this by tomorrow I will take legal action against you. I will sue you for damages in a Civil Court.I decided to write to Dr. Fernandez to give him a chance to articulate his theory better before I wrote about it. I thought, perhaps, it was not as breathtakingly frivolous as it sounded. Dr. Fernandez responded, proving me quite wrong: his theory is actually, explicitly, deliberately, exactly that stupid. You can read the entire correspondence at the end of this post. Some highlights:
An Expression of Concern is not a Retraction and hence it does not belong in a Retraction Watch blog. If you publish an Expression of Concern in a Retraction Watch site, everybody equates the Expression of Concern with a Retraction or is lead to believe that they amount to basically the same thing, or that both are equally serious misdemeanors. Even if the Retraction Watch piece portrays the Expression of Concern accurately, the mere fact that the latter is there tarnishes my reputation because it can be construed as something much more serious than what it really is. For that reason I will sue both in Civil and Criminal Court tomorrow unless all the defamatory posts are removed from the web by 10am. Dr. White! Please! You are a very well educated man. This is a no brainer. Imagine I am inconclusively charged in a confusing episode and end up appearing in FBI Most Wanted. My reputation will be tarnished for a very long time no matter how accurately I have been portrayed in FBI Most Wanted. The Expression of Concern refers to an inconclusive investigation with split vote, but placing it in Retraction Watch would lead an impartial observer to believe I have committed some crime equivalent to or as serious as one that would merit retraction. Otherwise, why would it be there? This action is misleading the general public to believe that there is something serious with the paper, when there is only a difference of opinion on certain results. Apparently, Retraction Watch is not removing their defamation, instead it keeps inflamming the issue and is now harassing me through their lawyer. How can people find time to engage in such activities?[Note: As you can see from the full correspondence below, I never suggested I am Retraction Watch's lawyer -- to the contrary, I explicitly told Dr. Fernandez that I was a writer seeking comment. Moreover, I did not represent that I am "Dr. White." It is true that some people with law degrees refer to themselves as "doctor." The correct term for these persons is "insufferable gits."]
Dr. Fernandez' theory is utterly frivolous. Retraction Watch has reported that an "expression of concern" has been published about Dr. Fernandez' article. Dr. Fernandez concedes this is true. Retraction Watch explicitly and repeatedly calls it an "expression of concern" and links to it, allowing the reader to evaluate it. Retraction Watch reports "expressions of concern" — which are part of the array of responses to questioned scientific articles — all the time. Dr. Fernandez' theory — that a blog called "Retraction Watch" can only write about retractions, and not about the broader array of responses to questioned scientific articles, even when it correctly describes those responses and links to them, finds no support in law or logic. Among the doctrines that defeat Dr. Fernandez' theory are these: truth is an absolute defense to defamation. A purportedly defamatory statement is examined by courts for its reasonable interpretation, not the interpretation some hypothetical dim person would give it. Both of these rules annihilate Fernandez' very foolish argument.
If Dr. Fernandez attempts to "sue in criminal court," he will learn that Wisconsin — where he is apparently located — does not seem to allow citizens to file criminal complaints, as some states do. Though Wisconsin has a criminal defamation misdemeanor on its books, no prosecutor will file criminal charges based on Dr. Fernandez' ridiculous theory, especially because the acts were not committed in Wisconsin. If Dr. Fernandez files a civil action for defamation, he can expect the following: the Streisand Effect, the Popehat Signal, widespread pro bono support for Retraction Watch from the First Amendment community, widespread scorn for Fernandez from the scientific community, a thorough cockroach-stomping in court, sanctions, and the possibility of being a defendant in a malicious prosecution action.
Even if Dr. Fernandez steps back from the precipice — even if he gets minimally competent legal advice — he's already damaged his reputation, perhaps irreparably. He's acted like an angry blustering oaf who is pathologically intolerant of criticism. Ask yourself — how much do you trust the work of a scientist who threatens to sue for true reports of peer review of his work? Would you feel comfortable ingesting a drug developed by a chemist who threatens criminal charges against someone who reports — truly and accurately — that other scientists have raised questions about his conclusions? Would you hire a consultant who makes foolish public legal threats without first acquiring any grasp whatsoever of the applicable law? Would you invest in a pharmaceutical company whose Chief Scientific Officer utters civil and criminal threats against reports of scientific dissent?
In the past, thuggish and vexatious legal threats have been common because they've been risk-free. In the Information Age they aren't. When you act like a bully, you can become famous as a bully immediately, and reap the consequences.
Dr. Fernandez, meet the consequences.
Appendix: My Correspondence With Dr. Fernandez
Dear Dr. Fernandez, I am an attorney in Los Angeles, a member of the First Amendment Lawyers Association, and a blogger. I write about subjects including free speech, legal threats against bloggers, and the use of the legal system to chill speech. I have a question about your legal threats to Retraction Watch, reported here: http://retractionwatch.wordpress.com/2013/04/22/retraction-watch-threatened-with-legal-action-again/ I note that the Retraction Watch piece of which you complain appears to state that the issue is, in fact, an Expression of Concern and not a retraction: http://retractionwatch.wordpress.com/2013/04/19/conflicting-investigations-prompt-expression-of-concern-in-bmc-genomics/ Are you willing to comment? If so, can you identify what specific statement Retraction Watch has published that you believe to be false and defamatory? If it's not a matter of a false statement of fact, what in the article do you believe is actionable? Furthermore, before making your threats, did you consider the natural and probable consequence of making them, in terms of the level of scrutiny the Retraction Watch post would draw? Are you familiar with the term "the Streisand Effect"? Any comment about the matter is appreciated. I am contemplating writing about your threats. Some of my prior pieces about such legal threats include http://www.popehat.com/2013/04/11/dr-bharat-aggarwals-attorneys-make-bumptious-legal-threats-against-retraction-watch-blog/ http://www.popehat.com/2013/04/04/bring-me-the-head-of-that-threatening-lawyer/ http://www.popehat.com/2013/03/13/barbara-barbara-streisand-never-heard-of-her-now-back-to-my-threat/ Thank you, Ken White www.popehat.com Ken White Attorney at Law I am in receipt of your message pasted below. An Expression of Concern is not a Retraction and hence it does not belong in a Retraction Watch blog. If you publish an Expression of Concern in a Retraction Watch site, everybody equates the Expression of Concern with a Retraction or is lead to believe that they amount to basically the same thing, or that both are equally serious misdemeanors. Even if the Retraction Watch piece portrays the Expression of Concern accurately, the mere fact that the latter is there tarnishes my reputation because it can be construed as something much more serious than what it really is. For that reason I will sue both in Civil and Criminal Court tomorrow unless all the defamatory posts are removed from the web by 10am. Ariel Fernandez Dr. Fernandez: Thank you for your response. I have a couple of follow-up questions. As I understand it, it is your position that a blog called Retraction Watch may not write about Expressions of Concern, even if it expressly identifies them as an Expression of Concern, and links to the Expression of Concern so readers can see it for themselves. Are you represented by an attorney? Has anyone with any familiarity with defamation law or the First Amendment to the United States Constitution suggested to you that your theory has any legal merit whatsoever? Have you contemplated the possibility that any lawsuit will result in sanctions against you? Are you familiar with the term "The Streisand Effect"? Thanks for commenting. Ken White Dr. Ken White, Attorney at Law Dr. Catherine Rice, Senior Editor BMC Genomics Dr. White, Dr. Rice, Dr. White! Please! You are a very well educated man. This is a no brainer. Imagine I am inconclusively charged in a confusing episode and end up appearing in FBI Most Wanted. My reputation will be tarnished for a very long time no matter how accurately I have been portrayed in FBI Most Wanted. The Expression of Concern refers to an inconclusive investigation with split vote, but placing it in Retraction Watch would lead an impartial observer to believe I have committed some crime equivalent to or as serious as one that would merit retraction. Otherwise, why would it be there? Dr. Rice, would you please intervene and request removal of the libels? The Expression of Concern issued by your journal has been misconstrued into several defamatory pieces. Thanks much. Ariel Fernandez _______________ Dr, Fernandez: Thank you for your response. I will be writing about your threats, as will, I suspect, other bloggers concerned with the First Amendment and frivolous and censorious legal threats. Ken White Catherine Rice Senior Editore, BMC Genomics Thanks for talking with me this morning. I am still waiting the Expression of Concern to be published in my paper and the Editor's Note to be removed. Three months have already passed. As I have indicated, an Expression of Concerm is not a Retraction. Yet, Retraction Watch, a blog that reports retractions of scientific papers, mistakingly included your Expression of Concern in their reporting. Of course by including the Expression of Concern in their blog that tracks retractions, they are implicitly indicating it is a retraction or something of comparable seriousness. This action is misleading the general public to believe that there is something serious with the paper, when there is only a difference of opinion on certain results. Apparently, Retraction Watch is not removing their defamation, instead it keeps inflamming the issue and is now harassing me through their lawyer. How can people find time to engage in such activities? Since BMC Genomics is also being affected, it would be great if we can join forces to bring these people to justice or somehow impair their capacity to inflict damage. Thanks for your cooperation. Ariel Fernandez