Scientific Speech

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

I. Introduction

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

-Hippocrates1

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

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

II. Propositions: Scientific, Historical, And Political

"Science is organized knowledge."

-Herbert Spencer4

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

-Robert Heinlein5

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

-Albert Einstein6

We can distinguish three types of philosophically (and potentially legally) relevant propositions: (1) scientific propositions, (2) historical propositions, and (3) politi...

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