Scientists Provide a Civics Lesson for Politicians

In the spring of 1975, a United States Senator from Wisconsin began a public media campaign against what he judged to be wasteful government spending.  His monthly press release, entitled the “Golden Fleece Award,” was made up of informational snippets, caustic humor, and ad hominum attack in roughly equal measure.  He coupled this diatribe with a copy of the release for insertion into the Congressional Record.  His target in the second month was federal support of studies on the causes of aggression conducted by a Michigan scientist, who almost a year later sued the Senator and his assistant for defamation, interference in contract, and invasion of privacy.  The Senator answered this suit with a motion for summary judgment claiming his activities were a necessary feature of his responsibilities as an elected legislator and thus absolutely protected by the Speech and Debate clause in Article I of the U.S. Constitution.   He also claimed that research support with federal funds and the publication of scholarly articles each made the scientist a public figure and that legal action could follow only upon proof of “malice,” i.e. knowingly false speech.  A federal judge acting for the Wisconsin district granted the dismissal motion in the spring of 1977.  The scientist then filed a notice of appeal with the U.S. Court of Appeals for the 7th circuit. Approximately a year later, in the spring of 1978, the Appeals Court affirmed the summary judgment and dismissal of the court below.  The scientist next filed a petition for a writ of certiorari with the United States Supreme Court. which it granted. Then in the late spring of 1979, following briefs and oral argument, the Supreme Court, reversing the lower courts, decided in the scientist’s favor.  In the spring of 1980, the Senator announced that an out-of-court settlement had been reached.

I was that Michigan scientist. What follows is offered as a supplement to the reminiscences by my colleagues (Observer, Vol 19, No. 6, June 2006), as an acknowledgement of the significant contribution to the public welfare made by numerous individuals and agencies, and as a public expression of my personal gratitude to all who helped.

This major episode in my life began immediately following the Senator’s original press release, when I was contacted by several members of the media.   Alarmed, I sat down and wrote a brief defense of our research (the Senator’s attack encompassed seven years of work). I concluded that such public, uninformed criticism damages the public trust and the progress of science and asserted that his actions were irresponsible.  Needless to say I hoped that things would then blow over.   How naïve!  My children were harassed at school for having a crook for a father, my fire insurance was cancelled as the company sought distance from an unsavory character, and anonymous death threats came in the mail.  Some friendships withered, others flourished.  My wife and family were my good fortune.
Over the next nine months, on almost a weekly basis, I was contacted by some federal agency official reporting that the Senator and his aides were pursuing their attack on my research and its continued funding.  Officials characterized this harassment as angry, confrontational, and involving implicit threats of further media attacks.  For officials at the National Science Foundation (NSF) and the National Institute on Drug Abuse (NIDA) there was the realization that the Senator was chairman of the Appropriations Subcommittee that passed their annual funding.  In short order our research grant and contract support was terminated.  Since all of our laboratory work, including my institutional salary, had always been tied to the receipt of federal funding, the net result was a progressive layoff of all staff, including myself, and the cessation of our research.  Especially difficult was the loss of a National Institutes of Health (NIH) Senior Scientist Award from NIDA, which included salary support.  Our proposal had received high marks and was in the pool of to-be-funded awards. Yet, soon after the Senator’s aide met personally with the head of NIDA to discuss this matter — and note that NIDA had so far been spared a Fleece Award — my grant was yanked from the group.  Multiple reports from agency personnel made clear that the Senator’s displeasure had won out.

With this prolonged experience of threat and misfortune, finding myself backed toward the wall, I decided I needed legal help.  Hearing of a young, talented, socially concerned attorney in our state capitol, I met with Michael Cavanaugh and laid out my year-long tale of woe.  He and his colleagues examined the Senator and his staff’s actions and became convinced they were libelous.  Of equal importance was Mr. Cavanaugh’s review of the Senator’s possible defenses. Though his press releases were distributed to over 250 newspapers, magazines, and radio stations and had been reiterated on several television talk shows and radio stations, we suspected the Senator might nevertheless attempt to hide behind the speech and debate shield.  Mr. Cavanaugh concluded, however, that these actions were not covered by that shield. Relying on a good body of case law, he further concluded that neither my publications nor funding made me (or any of my colleagues) public figures.  Though I had no training in the law, his scholarship, careful and patient explication of various points, and his provision of relevant case law materials gave me confidence that the case would be addressed based on the merit of its claims. The Senator was then sent a demand for retraction and apology, which could have formed the basis for a quick settlement. The request went unanswered, however, and we filed suit.

I had been warned that the District Federal Court and even the Appellate Court might well be skittish about addressing a U.S. Senator’s actions or covering new ground in constitutional interpretation.   Still, the speed and legal analysis given by the District Court and later by the Appellate Court seemed superficial relative to our own background research.  The Senator, on the other hand, gained confidence from these court judgments and continued repeating his original statements regarding my work and that of other Fleeced scientists. In consequence, we amended our suit to include his continuing indiscretions.

Prior to suit, we had assumed that my being chosen by the Senator followed from some ordinary aspect of his funding oversight and review process.  Instead the Senator’s staff testified that our work was actually suggested as a Fleece candidate by Daniel Greenberg, then editor and publisher of Science and Government Report and The Grant Swinger Papers. Shades of McCarthy — Science truly was in harm’s way!

From the start, we knew of the Senator’s private resources, but following suit we really came to appreciate his knack for personal appropriation of the public wealth for political benefit, including record-setting use of the franking privilege (the privilege to mail without requirement of postage). The Senator likewise held the record for world-wide media distributions. When, following suit, he quickly arranged taxpayer subsidy of his legal fees, we knew we were up against a true professional.  As the case moved to the Supreme Court, the Senator also convinced the Senate leadership to support an amicus brief urging that defamatory political action should enjoy the same absolute privilege accorded legislative activity.  The House of Representatives’ leadership, hoping for the same sporting license, also joined with its own amicus brief.  Filling out this chorus was the brief of the American Society of Newspaper Editors and National Newspaper Association, arguing the benefits of greater gore upon the body politic.

As you can imagine, this effort involved substantial time and commitment and I was facing a large, rapidly growing legal bill.  Though urged early on to seek help from colleagues, I was reluctant, thinking most would take a dim view of any successful outcome when the opposing legal judgments kept piling up.  But when the Supreme Court granted certiorari, I immediately authorized a fundraising committee and contact with fellow scientists who would be impacted by the court’s decision.  A committee of Western Michigan University psychology professors — Neil Kent, Fred Gault, and Art Snapper — established the Fund to Protect Scholars from Defamation, filed necessary legal papers, and contacted several professional organizations for mailing lists.  All cooperated and the committee began a sequence of solicitations from APA and then AAAS members. 5,766 scientists and 43 organizations in a balanced representation of all the major disciplines responded to our requests, sending $92,846.   The APA gave two separate donations to the Fund totaling almost $15,000.  After printing, postage, mailing, etc., $47,350 went to defray a substantial portion of our legal costs.

A number of colleagues had contacted me and offered support at various times after the suit was filed. Professor Fred Skinner, Harvard University, and professor Neal Miller, Yale University, asked my permission to go to the APA and their actions soon produced support.  The APA approached AAAS and both joined in filing amicus briefs with the Supreme Court.  Many people helped at various points in this final effort.  Professor Robert Barron, Purdue University, and professors William and Elaine Wallster, University of Wisconsin, early targets of the Senator for their NSF-sponsored research, provided strong affidavits describing the parallel indiscretions and demagoguery they had experienced.  Professor Skinner, professor Joe Brady, Johns Hopkins University,  and others provided affidavits in support of our work for our Supreme Court brief.

The Supreme Court decision made emphatic law (8-l) regarding the latitude of privilege for speech of representation and its distinction from political speech.  The decision additionally provided assurance that neither scientific/scholarly publication nor research support with public funds cause any loss of the right of privacy.
Shortly after this decision and against the recommendation of both my attorney and some colleagues, I wrote to the Senator personally, again offering the same general terms of settlement I had offered in my original contact.  Now I received a prompt reply and negotiations thereafter led to settlement. The agreement required the Senator to personally deliver a Senate speech of retraction as approved in advance by myself, and to issue a copy of this speech as a companion public press release and distribute it to the same 250-plus media outlets originally contacted.  Equally important were the required individual letters, some two dozen in number, personally signed by the Senator, to each of the federal agencies wherein he promised not to interfere in the executive deliberation of grant proposals nor attempt to intercede in opposition to them.   Finally the Senator agreed to pay all court costs and $10,000 to me.

Now, tutored in the necessary courtesies of pugnacious politics and the risks of bedding with the media, ridiculed in the press, and given a Fleece by his Senate colleagues, our antagonist agreed to repay the U.S. Treasury for legal fees and went off in search of another quarry.

As for science, there could be satisfaction.  Cleverly disguised in sheep’s clothing, an old, discredited theory had re-emerged.  It stated that the laws of nature and nation should be governed by the law of the loudspeaker.  Scientists, proceeding in character, arranged an orderly and impartial test of this proposition.  When the theory was judged to be without merit, future science and its beneficiaries were spared a serious burden.

References
Benson, E.  (2006). All that’s gold does not glitter: How the Golden Fleece tarnished psychological science. Observer, 19 (6), 13-17.
Hutchinson v. Proxmire, United States Supreme Court (l980).