Hey readers,
A few weeks ago I wrote about the consequences of Harvard Business School professor Francesca Gino's lawsuit against the three researchers — Leif Nelson, Joe Simmons, and Uri Simonsohn — who uncovered enormous discrepancies in the data backing four papers on human behavior which Gino co-authored. A forensic investigation commissioned by Harvard found the same discrepancies that the independent researchers did, and Harvard has sought a retraction of the papers, conducted an investigation, and suspended Gino.
Gino has sued the three researchers who uncovered the manipulated data for "not less than $25 million," alleging that she was defamed by the series of blog posts in which they laid out the discrepancies.
Telling the truth is an absolute defense in a defamation case. When Harvard commissioned an independent forensic investigation of the data that the Data Colada team had called into question, the independent investigation found "an apparent series of manipulations to a dataset prior to its publication" — backing up what the Data Colada team had identified.
But the way the law works is that it'll take years — and be terrifyingly expensive — for the case to reach the stage where the defendants can even raise that defense. "The system is so broken ... that a case like this will cost hundreds of thousands of dollars and go on for years," defamation lawyer Ken White told me earlier this month. "Realistically, you could wind up going to trial, and even if you're going to win at trial eventually you're going to be ruined doing it."
With defamation lawsuits, White said, "The process is the punishment." Even assuming that Gino's claims are dismissed at trial, the suit will still have bullied researchers who pointed out problems with her work — and may make other researchers more reluctant to follow in their footsteps by speaking out when they notice signs of data manipulation.
Facing that alarming state of affairs, defenders of Nelson, Simmons, and Simonsohn have put together a GoFundMe to help the researchers raise the conceivably hundreds of thousands of dollars that will be needed to defend themselves in court.
Crowdfunding a defense for scientific research
Lawyers have reportedly told the three researchers that they could be looking at up to $600,000 in legal fees, the GoFundMe states. "Their employers have so far only agreed to pay part of the legal fees," the page says. "Defending science requires defending legitimate scientific criticism against legal bullying. That is why we are asking (with the permission of Leif, Joe, and Uri) for contributions to cover Data Colada's legal defense."
Since then, thousands of contributions have poured in, and the GoFundMe's target of $250,000 has been met in less than a week. In a sense, this is a heartwarming story of the academic community coming together to defend the people who conducted this critical research.
But in another sense, it's just depressing. It's great that the academic community can rally behind researchers when they're sued for publishing evidence of data manipulation, and raise the hundreds of thousands of dollars that they may need for their legal defense. But it doesn't wholly mitigate the chilling effects of being sued for scientific research in the first place.
"I am very happy that the Datacolada team got funding for their lawsuit," data scientist Jonatan Pallesen wrote on Twitter. "However, researchers can't be secure that they will receive the same support in the future." He alleged that he'd found some "interesting" results from hours looking at research conducted by another researcher, Dan Ariely, who has also been accused of research misconduct. "However, it is not worth it for me to do this in the future, or to share my findings publicly," Pallesen wrote. "This would give me a non-zero risk of financial ruin, and no real personal upside. Probably many researchers are making this same calculation at this moment."
A recent piece in the Chronicle of Higher Education surveys the landscape of academics filing lawsuits against their critics and found that while such lawsuits are rarely successful, they can still leave a scar on those who are targeted. Their proposed solution is that scientists come forward anonymously on websites such as PubPeer, which allow scientists to leave comments on published papers, or that they partner with existing organizations that can weather the defamation lawsuit risk, rather than publishing their findings themselves.
It's good for such options to exist — but it's maddening to find ourselves in a situation where scientists who find evidence of serious malpractice and data manipulation have to share their findings in secret lest their own livelihoods be ruined.
Combating a culture of lawsuit retaliation for scientific criticism
When I talked to White about how we could do a better job of building a culture in which investigations like this one weren't punished with expensive defamation lawsuits, he had a few suggestions. The first and most important is that Massachusetts could do what other states have done, and implement an expansive so-called anti-SLAPP law that protects against such suits. SLAPP stands for "strategic lawsuit against public participation"; anti-SLAPP laws make such suits easier to dismiss.
"An anti-SLAPP statute creates a special mechanism to get out of a suit early if it attacks your protected speech," White told me. "It's a good way to knock out claims where they're suing you based on your opinion or your rhetoric."
In California, Stanford researcher Mark Jacobson sued two researchers who criticized his work — and the journal that published their criticism — for $10 million. But California has strong anti-SLAPP laws, and after Jacobson dropped his lawsuit, he was ordered to pay $428,000 in legal fees that the defendants had incurred defending against his lawsuit.
Massachusetts, where Gino works, has much weaker anti-SLAPP laws, which will make it harder for the defendants to get the lawsuit summarily dismissed or recover their court costs even if they are entirely vindicated in the legal process. Strengthening Massachusetts's laws, or passing a federal anti-SLAPP law (Gino is suing in a federal district court, because there's also a Title IX element to her complaint) could make it easier for defendants in the future to recover legal fees when they're the target of a lawsuit that attacks their protected speech.
But legal mechanisms and fundraisers can only make up one element of a defense against the use of lawsuits to target critics. The other element, White told me, is "more cultural pushback. You need to make it unacceptable to use litigation as a means of suppressing speech." Gino presumably cares about her reputation as a scientist and academic. It should be widely understood that the correct response to a scientific disagreement is a clear, public counterargument. If there's some innocent explanation for the apparent data manipulation Data Colada identified, Gino should give it.
If it's broadly considered laughable to defend your scientific reputation with a lawsuit instead of a counterargument, then people who want academic credibility and respect won't do it.
Given our current, broken system, I'm deeply grateful for the GoFundMe that has raised money for the Data Colada team to mount a legal defense. But looking ahead, we need a better system — one where you can't end up owing hundreds of thousands of dollars for a scientific criticism, particularly if it turns out to be completely true and justified.
—Kelsey Piper, senior writer
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