Lawyers call libel suit against journal and critic “lawless” but “well written”

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Mark Jacobson

A $10 million defamation suit filed by a Stanford University professor against a critic and a journal may be an assault on free speech, according to one lawyer, but at least it’s “well written.”

Kenneth White, a lawyer at Southern California firm Brown White & Osborn who frequently blogs about legal issues related to free speech at Popehat, told us:

It’s not incompetently drafted, but it’s clearly vexatious and intended to silence dissent about an alleged scientist’s peer-reviewed article.

Scientists have publicly bemoaned the suit’s existence, as reported by several outlets, including Mashable and Nature. Mark Jacobson, an engineering professor at Stanford, has alleged that he was defamed in a June article published in the Proceedings of the National Academy of Sciences (PNAS), which was critical of a 2015 paper co-authored by Jacobson in the same journal. In a complaint filed Sept. 29 in the Superior Court of the District of Columbia, Jacobson accused the journal’s publisher, the National Academy of Sciences, and the paper’s first author, Christopher Clack, an executive at a renewable energy analysis firm, of libel.

White told us that there are several pitfalls that could trip up the lawsuit, including a DC law that allows defendants an early opportunity to ask the court to dismiss cases muzzling free speech and recover attorneys’ fees. But another attorney said the complaint should at least clear the lowest hurdle in the way of getting to trial.

Callan Stein, an attorney at Donoghue Barrett & Singal who has represented researchers in misconduct cases, said defamation cases often lack details about the time, place, and even which statements are allegedly defamatory. Not so here:

Not commenting on the validity of any allegations, it’s a very detailed and well written complaint. In my opinion, they’ve checked all of those boxes.

Jacobson is far from the first scientist to turn to the courts to address issues that have arisen from scientific publishing — and the suit suggests that past failures to get courts to intervene in these types of disputes aren’t a deterrent.

In the allegedly defamatory article, authors led by Clack — a former data modeller at the University of Colorado at Boulder — criticized an earlier paper by Jacobson which said the US energy grid could be powered entirely by renewable sources.

According to Clack and his co-authors, Jacobson’s paper contained modeling errors. In his complaint, Jacobson alleged that this statement, among others, was “baseless” and “factually false and misleading.” Specifically, Jacobson says that the critics falsely characterized a data table “to invent non-existent additional problems with the Jacobson article.”

Jacobson is being represented by Paul Thaler, of Cohen Seglias, who has frequently represented researchers accused of misconduct. We asked Thaler if he’s ever represented a scientist who was the plaintiff in a defamation lawsuit, Thaler told us:

I’ve been representing scientists for 20 years and I’ve litigated for 30. My gut feeling is that, sure I have, but I’d have to think about it.

He added:

I consider this to be defending a scientist as well.

In addition to asking for monetary damages and attorney’s fees, Jacobson has asked the court to order NAS to retract the article. The complaint also alleges a breach of contract by NAS, which Stein called “dubious.”

Asking for the entire article to be taken down was both “unserious” and “lawless,” White said. He told us the legal concept of “prior restraint” should prevent that from happening:

A court can award a money judgment against you for defamation but, in general, can’t order you not to say things or to take statements down.

If this case went to trial and a jury found specific statements were defamatory, then you could conceivably have specific statements taken down, but only at the end of the process and not, by any stretch of the imagination, the entire article.

In 2015, diabetes researcher Mario Saad sued the American Diabetes Association in an attempt to prevent it from publishing expressions of concern about four of his papers. The judge dismissed that lawsuit, saying the request was:

a classic prior restraint that is presumptively invalid under the First Amendment.

Jacobson’s suit brings to mind several other cases we’ve covered in recent years. In 2014, former Brigham & Women’s Hospital researcher Piero Anversa sued Harvard University over a misconduct investigation that he said damaged his reputation. That suit was also dismissed.

Also in 2014, retired Wayne State University researcher Fazlul Sarkar sued anonymous PubPeer commenters for defamation.

And in 2015, Mitch Potterf, a gym owner in Ohio, sued The Ohio State University in state court alleging defamation related to data in a study conducted at his gym that has now been retracted (he also sued the university in federal court for grant fraud.) Ohio State settled that suit last year for $145,000, but did not admit wrongdoing. A related defamation suit, in which Potterf is suing the study’s publisher, is ongoing.

Jacobon’s article, “Low-cost solution to the grid reliability problem with 100% penetration of intermittent wind, water, and solar for all purposes,” has been cited 27 times, according to Clarivate Analytics’ Web of Science.

The critic’s article, “Evaluation of a proposal for reliable low-cost grid power with 100% wind, water, and solar,” has been cited three times.

Both articles received coverage in the popular press when they came out: Jacobson’s paper received mention in The Guardian and, as the lawsuit notes, The New York Times and Scientific American ran stories about Clack’s rebuttal, as did The Washington Post.

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