Dr. Mario J.A. Saad Tries, And Fails, To Censor American Diabetes Association

Dr. Saad is mad.

Dr. Saad is mad because of something bad — specifically, the American Diabetes Association, through its journal Diabetes, is publishing expressions of concern about some of his scholarly articles, and may formally withdraw them.

Expressions of concern — like formal withdrawal of past articles — are part of the peer review process. It's how scientific journals police themselves and call attention to questions raised about research they've published. Naturally they are a source of annoyance to the authors questioned, as I've written about in the cases of several legal threats against the blog Retraction Watch.

So when the ADA began questioning Dr. Saad's work, he and his lawyers at Deutsch Williams did not rely on the peer review process, or on advocacy or persuasion. Don't be ridiculous! This is America. So they sued.

Dr. Saad sued the ADA for defamation, claiming that they were harming his reputation by printing digital expressions of concern about his work, preparing a print run, and declining to publish him further until their concerns were assuaged. That much — the attempt to vindicate scientific propositions through litigation, rather than through . . . you know . . . science — is banal at this point. What makes Dr. Saad and his lawyers notable is the remedy they demand.

Dr. Saad demanded in his complaint, and sought through a motion, an injunction forcing the ADA to remove its expressions of concern, and prohibiting it from publishing them or withdrawing Dr. Saad's articles. This is aggressive, in the sense of patently ridiculous. Dr. Saad is demanding prior restraint of speech, something that is prohibited (at least as pre-trial relief) in almost all circumstances.

When you are asking a federal judge to do something patently unconstitutional, and you're not a federal prosecutor, you face a conundrum. Do you attempt to distinguish the decades of Supreme Court cases saying that the judge can't do what you want, explaining in creative fashion why they don't apply? Or do you just ignore the issue and hope it doesn't come up? Dr. Saad's lawyers went with the later strategy, which might be called Underpants Gnome lawyering. Their brief studiously ignores the First Amendment, the wall of prior restraint authority, and the equitable doctrine that defamation can't be enjoined.1 The ADA's brief in opposition is more or less "what the fuck, man?" with bluebooking and footnotes.

Lawyers employ Underpants Gnome lawyering because sometimes it works. It didn't this time. United States District Judge Timothy Hillman denied Dr. Saad's request for an injunction politely but firmly:

Whatever interest Dr. Saad has in preserving his professional reputation, it is not enough to overcome the heavy presumption against the proposed order’s validity. This is precisely the type of circumstance in which the law forbids courts from halting speech before it occurs. See Near v. Minnesota, 283 U.S. 697, 716, 51 S.Ct. 625 (1931) (declaring unconstitutional a court order preventing The Saturday Press from publishing a defamatory newspaper); Krebiozen, 334 Mass. 86 (affirming denial of injunction that would have prevented the publication of statements harmful to medical researchers’ professional reputations). The appropriate remedy in cases where a “publisher is to print a libelous, defamatory, or injurious story . . . lies not in an injunction against publication but in a damages or criminal action after publication.” In re Providence Journal Co., 820 F.2d 1342, 1345 (1st Cir. 1986).

This was not a close call.

Dr. Saad may still proceed seeking damages against the ADA, and might, hypothetically, get an injunction against specific statements found to be false after a full trial. But his effort to vindicate his scientific view through force of law has failed.

I offer no opinion on whether the ADA is right, or reasonable, in questioning Dr. Saad's research for scientific reasons. I got through my science/math/bio requirements in college through a Physics for Poets class in which I got a B+ by writing a speculative essay about antimatter derivative of 1950s Heinlein essays. But I do question the reliability of Dr. Saad's research on this basis: how can you trust the science of someone who tried to get a court order prohibiting public questioning of their conclusions? If a new therapy were based on a scientific theory that was defended not with peer review and the scientific method, but with litigation, would you trust it to be used on a loved one? I wouldn't. Dr. Saad may find that his litigiousness has harmed his credibility more than anything the ADA has ever said or done.

Hat tip to the folks at Retraction Watch.

  1. I am giving Dr. Saad's attorneys the benefit of the doubt and assuming this was "strategy," not ignorance.  

Last 5 posts by Ken White

Comments

  1. Alan says

    Frankly, given how clear the case law is, perhaps Judge Hillman should ask the fine attorneys to show cause as to why they shouldn't be sanctioned for the frivolous filing of the motion seeking the injunction.

  2. Aaron says

    "I got through my science/math/bio requirements in college through a Physics for Poets class in which I got a B+ by writing a speculative essay about antimatter derivative of 1950s Heinlein essays."

    Any chance you could publish that? It sounds rather interesting actually :)

  3. says

    Unless I'm missing something in the attachments, the ADA's concerns were about the wonky handling of some images, but concluded that wonky handling didn't impact the reliability of the paper's findings. The ADA's concerns seemed to have boiled down to "Research was solid but image handling didn't meet our guidelines."

    As a result of the lawsuit however, I suspect most people are going to think Dr. Saad was caught in something deliberately deceptive and sued in a desperate or incredibly stupid attempt to cover up something shameful. Without the lawsuit, this incident would have left Dr. Mario J.A. Saad with the reputation of a solid researcher who needs to be a bit more careful in formatting papers he submits for publication. In my opinion, if there's anyone who now questions the overall validity of his work or the reliability of his findings, it's going to be because he felt the need to sue to censor criticism. He's displayed a level of disdain for and fear of peer review that I'd normally associate with quack medicine, homeopathy and perpetual engine inventors.

  4. says

    @Matthew

    I think the allegations against Dr. Saad are a little bit more serious than a little mistake. When a journal suspects academic misconduct, it is the duty of the author's institution to investigate the allegation. The journal can accept or not accept the results of the investigation.

    The author's institution found inappropriate behavior, but falls back to a position that essentially it did not matter because the paper is still valid. The journal clearly disagrees as it is proceeding to an expression of concern or a retraction..

    It is also important, at least for me as an academic, to differentiate a retraction or an expression of concern from a correction. You can always write to the editor and say "I'm sorry, I thought we were measuring in pounds but it was really kilograms, the data we published is worthless." The journal publishes a correction so future researchers will not be mislead. Publishing a correction is embarassing but its not the end of the world. An expression of concern or a retraction, on the other hand, has a definite implication of misconduct. It can be a career limiting event.

  5. TimL says

    I am not a lawyer, but I am scientist.

    Most of these statements of concern are because the researchers fail to follow rules are have nothing to do with nefarious activity.

    For example, "The University also found that the scientific results presented in the articles were not compromised by those mistakes, and found no evidence of dishonesty on plaintiff’s part."

    Basically, the journal said that the guy is honest but can't follow rules. Let it lie, dude.

  6. Chris says

    Ken,
    I read religiously but don't follow all links.
    I had read that post before but found your support less than 100%.
    I think steyn's position is "the process is the punishment" and that's also not right.

  7. EGPF says

    Should be also mentioned that there are about 20 papers by Saad being questioned at PubPeer for exactly the same kind of… "mistakes" which have appalled ADA and readers. To think of it, the attempt was even more absurd — then why not try suing PubPeer commentators like someone else has done in the recent past? My main concern is that younger scientists and department colleagues are able to discern reality from manipulation in these conflicts, thus improving scientific reports henceforth.

  8. Smut Clyde says

    For example, "The University also found that the scientific results presented in the articles were not compromised by those mistakes, and found no evidence of dishonesty on plaintiff’s part."
    Basically, the journal said that the guy is honest but can't follow rules.

    Nope, a panel at Saad's university, consisting of his colleagues and co-authors, said he's honest. Not the journal.

    an injunction forcing the ADA to remove its expressions of concern, and prohibiting it from publishing them or withdrawing Dr. Saad's articles

    Dr Saad has signed transfer-of-copyright forms, granting the journal rights over his papers to print or unprint or qualify according to editorial whim. Is that legally relevant?