Distinguishing Fact from Opinion: The Second Circuit Rules on Scientific Articles

In a recent case before the Second Circuit, the Court of Appeals held that conclusions in scientific articles are akin to statements of opinion for defamation purposes and cannot give rise to actionable claims of false advertising under the Lanham Act or state statutory equivalents. In the Court's words, "the line between fact and opinion is not always a clear one" - and this recent decision has muddled that divide even more. Although the Court admirably applied opinion doctrine to scientific speech, its merit-based distinctions unnecessarily complicate this doctrine.

ONY, Inc. v. Cornerstone Therapeutics, Inc., No. 12-2414 (2d Cir. 2013), involves a 2011 article published in the leading journal in neonatology, the Journal of Perinatology, regarding surfactants, compounds whose name comes from "surface acting agents" and which can be produced naturally by the human body. The article detailed a study of "in-hospital mortality in preterm infants with respiratory distress syndrome," examining the relative effectiveness of three surfactants used to treat a condition in which the lungs of infants produce insufficient natural surfactants. The article ultimately suggested that use of the surfactants manufactured by defendant Chiesi led to a lower infant mortality rate than that manufactured by plaintiff ONY. ONY alleged that this article contained many factual errors and selectively included results that favored Chiesi's product in a way that deceived and misled readers.

In this case, ONY raised claims arising out of the article's publication and distribution. In particular, ONY sued under the Lanham Act and New York General Business Law § 349 for false advertising, and for injurious falsehood and tortious interference with prospective economic advantage in accordance with New York common law. In its discussion of the false advertising claims and defamation-based free speech concerns, the Second Circuit noted the difficulty in applying the traditional fact-opinion distinction in First Amendment jurisprudence to new scientific discourse. Although we are generally inclined to say that scientific speech is closer to the fact end of that spectrum - it can be empirically proven or disproven - analysis of data and the role of hypotheses in the scientific method complicate this notion.

As a matter of policy, we want to promote scientific innovation and experimentation and should avoid chilling this discourse by placing researchers in fear that announcing tentative conclusions will subject them to defamation-based lawsuits. Scientific research builds precisely because these conclusions are published, allowing peers in the field to review the studies and challenge or build upon the existing work. Even though we instinctively consider science "fact," we cannot forget that these articles are part of an often-multifaceted international debate. As such, the Court of Appeals recognized that for First Amendment purposes, such as cases involving defamation and fair competition, "statements about contested and contestable scientific hypotheses . . . are more closely akin to matters of opinion [than fact]."

The Second Circuit also acknowledged the complexity of these scientific developments, noting that "courts are ill-equipped to undertake to referee such controversies. Instead, the trial of ideas plays out in the pages of peer-reviewed journals, and the scientific public sits as the jury." By insisting on judicial deference to the academic community, the Court adopted broad speech protections. Ultimately, the Court held that the First Amendment protects scientific speech when the author draws "conclusions from non-fraudulent data, based on accurate descriptions of the data and methodology underlying those conclusions, on subjects about which there is legitimate ongoing scientific disagreement."

In this opinion, the Court's language echoes a Holmesian theory of the marketplace of ideas, encouraging the free trade of thoughts. As Robert Balin, an attorney for one of the defending parties said, "We want maximum discussion and disagreement sometimes, which can be heated. We want that kind of back and forth, give and take in science. That is the very essence of science." This debate allows the "truth" to emerge and prevail, as the marketplace theory intends.

Despite this language and ideal, the Court's decision is less egalitarian and pro-discussion tha