Adam Marcus, Anonymous Commenter, Character Assassination, Civil Death, Clare Francis, Defamation, Defamation lawsuit, Fake Peer Review, Fazlul Sarkar, First Amendment to US Constitution, Ivan Oransky, Michigan Court of Appeals, Post publication peer review, PubPeer, PubPeer lawsuit, Reporting Retractions, Reporting Science Retractions, Reputation Damage, Research Integrity, Research misconduct, Retraction Watch, Retractions, Science Transparency, Scientific Misconduct, Wayne State University

First Amendment Abuse: Time to Sue Post Publication Reviewers for False Accusations

On Tuesday October 4 at 10AM, a Michigan Court in Detroit conducted a hearing on case 326691 “Fazlul Sarkar vs John Doe”. As you may recall from our coverage at Science Transparency, Prof. Sarkar is a scientist anonymously accused of misconduct through a blog named PubPeer. Whether his data is valid or invalid is something we are not in a position to evaluate or debate. The focus here is the modus operandi of his accusers. The accusations had adverse consequences for his career and so Dr. Sarkar sued PubPeer in Court. The Court requested that the identity of only one of the anonymous accusers be revealed. This has not yet happened. All we know is that the accuser or accusers whose identity is sought by the Court hid under the pseudonym Clare Francis to launch the attacks on Fazlul Sarkar in what constitutes a flagrant abuse of First Amendment rights. The lawyers for the defendants argued that the Constitutional rights bestowed by the First Amendment guarantee the impunity of their clients. That is wrong, very wrong. And whose peers are PubPeers anyway?

To discuss the venal Clare Francis, we need to briefly focus on the blog Retraction Watch (the two are intimately related). This blog is run by two journalists, Ivan Oransky and Adam Marcus. Odd as it sounds, these non-scientists and the anonymous contributors to the blog claim they seek “to increase the transparency of the retraction process in science” (sic), which is an oxymoron. Initially, the founders of Retraction Watch worried they would not get enough stories to cover. So, right around the time the blog came into existence in August 2010, anonymous whistleblowers, including Clare Francis, also surfaced and relentlessly accused scientists of misconduct, allegedly in connivance with Retraction Watch.  The blog harassed, scorned and pilloried anyone immediately after the anonymous whistleblowers managed to elicit some reaction from the journals, be it an expression of concern or a retraction. Obviously, Clare Francis or the cowards that hid in anonymity immediately informed Retraction Watch (or… yes, you are right). The attack then escalated as other journals were contacted once the accusers gained their short-lived credibility with the help of Retraction Watch, and their attacks then spiraled into full defamation cycles.

This seemed like quite an effective strategy to boost the blog, particularly since Clare Francis and other nobodies have been aggressively accusing scientists of fraud and plagiarism. If the anonymous accusers were successful in eliciting damning reactions from the journal editors, Retraction Watch would get a juicy story and a chance to pillory the incriminated scientists. On the other hand, if the cowards were not successful or the accusation proved to be false, there would be no consequence for them or for Retraction Watch since the journals typically do not inform the public or institutions that they have received a false accusation.

The ungainly posts at Retraction Watch elicited by Clare Francis actions contributed to build up a poisonous atmosphere best reflected in Ivan Oransky’s retort to a Nature editorial on retractions. Nature’s cautious reflections contrast starkly with Oransky’s views on the need for immediate condemnation illustrated by the following passage:

“We would argue that journals like Nature actually have a tremendous amount of power. If Nature thinks that they “have neither the authority nor the means to police authors or their institutions,” the editors should sit down with Anesthesia & Analgesia editor in chief Steven Shafer, who gathered a consortium of journal editors that held institutions’ feet to the fire and led to retractions in the Joachim Boldt and Yoshitaka Fujii cases. One can only imagine how quickly a dean would return a call from Nature.”

After this rant, Oransky charged again:

“And why not issue an expression of concern about papers during those years while it’s being investigated? How does Nature justify, for example, leaving the dance symmetry paper in the literature for for five years after authors requested a retraction? Unless, of course, you’re worried about losing those citations, the first two years of which will count toward your impact factor.”

Motivated by recent reports on harassment to scientists and by these troubling views, Science Transparency decided to investigate the matter further. We sought to find out what proportion of accusations by Clare Francis or the cowards operating anonymously allegedly on behalf of the Clare Francis/ Retraction Watch machine had any merit to the point that they would eventually result in retraction. Although editors had not been diligent in collecting statistics, they all pointed to a figure slightly lower than 10%.

In regards to those enduring false accusations of misconduct by Retraction Watch, Paul S. Thaler, one of the most successful lawyer in the field, had this to say:

The first thing to remember is that the federal regulations, as well as the internal policies of most institutions, protect the confidentiality of respondents in research misconduct matters.  Thus, as a matter of federal law, institutions are prohibited from disclosing the identity of an accused scientist, except on a “need to know” basis, for example, to a member of the investigation committee, unless and until a finding of research misconduct is made.  These proceedings are not public as court is in criminal and civil disputes.  It is more comparable to proceedings against other professionals, such as lawyers, who are governed by their licensing organization.  Privacy in these matters is critically important as there is no public need to, or right to know, about professionals simply accused of wrongdoing.  What the public has a right to know about is a professional who has been found responsible for wrongdoing.  At that point, the public is alerted.  But because a professional’s reputation is so important to his or her career, the specter of an accusation can permanently stain that reputation and frequently the accusation is not well founded.  So the confidentiality of the process allows a full examination before the public is made aware.  We certainly do want to know about those scientists who have actually done something wrong that impacts science, but we do not, and should not, be concerned with those who are good scientists but caught up in a sometimes very political, internal dispute.

These remarks by attorney Paul S. Thaler are very much in line with the law (42 C.F.R. § 93.108(b) (2005)), as noted by Nicholas Roumel, the lawyer of plaintiff Dr. Sarkar:

“Because the consequences of a research misconduct proceeding can be dire, the [federal] regulations impose conditions of strict confidentiality on allegations of research misconduct. As section 93.108 of the regulations states: “Disclosure of the identity of respondents and complainants in research misconduct proceedings is limited, to the extent possible, to those who need to know, consistent with a thorough, competent, objective and fair research misconduct proceeding, and as allowed by law.” 42 C.F.R. § 93.108(a) (2005). Disclosure of records or other evidence from which research subjects might be identified is also limited to “those who have a need to know to carry out a research misconduct proceeding.” 42 C.F.R. § 93.108(b) (2005).” [Mauvais-Jarvis v. Wong, 2013 IL App (1st) 120070 (Ill. App. Ct. 1st Dist. 2013)]

It is our expectation that the scientists that have been wrongly accused of wrongdoing and pilloried by Retraction Watch, or by the cowards hiding behind pseudonyms, will now sue those responsible in Court. The writer of this piece may be contacted (weishilaurameng@gmail.com) to help coordinate some of the effort.

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