This argument has been upheld in several cases. For example, in 1994 the U.S. Court of Appeals for the Third Circuit ordered a trial court to dismiss allegations that a manufacturer of a product containing asbestos "conspired" with a trade association to, among other things, hide the industry’s alleged prior knowledge of the dangers of asbestos.¹

The Third Circuit relied on a 1982 case from the U.S. Supreme Court, which ruled that for liability to be imposed solely because a defendant was part of a particular association, it must be shown that the group held unlawful goals and that the defendant held a specific intent to further those illegal aims.²

In the asbestos case, the Third Circuit observed that at least some of the activities of the manufacturer’s association were constitutionally protected. Those activities included providing congressional testimony; sending information to and meeting with members of Congress; participating in rule-making by the Environmental Protection Agency, or EPA; attending EPA meetings; submitting papers to and serving on advisory committees appointed by the EPA; and participating in legislative and regulatory proceedings in approximately 20 states.

The Third Circuit reasoned that the manufacturer could not be held civilly liable for any wrongful conduct by the trade association unless it could be shown that the manufacturer’s actions taken in relation to the association were specifically intended to further such wrongful conduct. In this case, said the Third Circuit, there was no such evidence.

The Court of Appeals noted that if the trial court’s ruling on this issue were to be upheld, joining organizations that participate in public debate and other activities protected by the First Amendment would become unjustifiably risky, and such activities likely would be inhibited.

Similarly, defendants who were accused in tort lawsuits of harming others through their communications have been protected by the First Amendment. This principle has been upheld in a federal appellate case pertaining to Internet bulletin board operators who were sued by people allegedly harmed by information posted online,³ as well as in a number of state courts. In the instances in which a First Amendment defense was unsuccessful, the subject matter of the speech generally was illegal, as in a case involving facilitation of murder for hire.^4,5

Since a tort lawsuit alleging that scientific communications are false is an attack on the content of these communications, the First Amendment could offer a strong defense in such a case. In fact, the Supreme Court has held that a statute is presumptively inconsistent with the First Amendment if it imposes a financial burden on speakers because of the content of their speech.⁶ This suggests that a tort statute cannot constitutionally be used to extract damages from a defendant as a result of the defendant’s speech.

However, if the scientific communications at issue were found to be "commercial speech," they might not enjoy as broad a protection. Commercial speech generally is defined as expression involving the economic interests of the speaker and the audience, frequently in the form of advertising or marketing goods or services.

At this point, the Supreme Court recognizes a "commonsense distinction between speech proposing a commercial transaction, which occurs in an area traditionally subject to government regulation, and other varieties of speech."⁷ Consequently, commercial speech receives less First Amendment protection than other types of speech.

To illustrate, the Constitution does not prohibit the government from restricting false or misleading commercial messages, which means parties may be found to have violated state tort laws by making false or misleading commercial statements. In addition, the First Amendment does not protect commercial speech about illegal activities.

In the instances in which a First Amendment defense was unsuccessful, the subject matter of the speech generally was illegal.

However, truthful commercial speech can be limited only through a narrowly targeted restriction that directly advances a substantial governmental interest.⁸ For example, in 1996, the Supreme Court invalidated a state regulation prohibiting all advertising of retail liquor prices.⁹ In that case, the Supreme Court observed that across-the-board prohibitions on truthful commercial speech "are particularly dangerous because they all but foreclose alternative means of disseminating certain information."

Further, the Court concluded that "a state legislature does not have the broad discretion to suppress truthful, nonmisleading information for paternalistic purposes." Hence, it follows that tort laws enacted by a state legislature may not be used to suppress truthful communications.

Moreover, the Supreme Court has held that if commercial and noncommercial elements are combined in a particular communication, the speech will receive the full protection of the First Amendment as a noncommercial communication.¹⁰ A series of Supreme Court cases has established that aspects of speech secondary to a speaker’s main communication will not change the character of primarily noncommercial speech to commercial, or vice versa.

One such case dealt with a prohibition against utilities including material addressing "controversial issues of public policy" with customer bills.¹¹ Even though the messages were included with bills, and the company had a financial interest in the communications, the court concluded that the speech was not commercial.

Thus, the communication of scientific information by a dentist to a patient should receive the full protection of the First Amendment, even if fees were discussed at the same time.

However, the Supreme Court reached the opposite conclusion in a case involving a prohibition on traditional promotional advertising encouraging customers to buy more of the advertiser’s product.⁸ The court reasoned that even if advertisements were connected to a current public debate, they would remain commercial speech because the communication would relate only to the economic interests of the speaker and audience.

Two federal trial courts examined the degree of First Amendment protection given to scientific communications. In these cases, the plaintiffs alleged that the defendants’ publication of certain scientific communications violated the federal Lanham Act, which prohibits false or misleading statements in advertising, or in connection with any goods or services.

In one case, a federal district court in California heard a lawsuit filed by a vitamin manufacturer against the author and publisher of a book that claimed the manufacturer’s vitamins caused cancer.¹² The court noted that the provisions of the Lanham Act were subject to the First Amendment, and determined that the main purpose of the book at issue was not to propose a commercial transaction, and that its contents were not solely related to the economic interests of the speaker and its audience. The court observed that it would be inappropriate for it to inquire into the validity of the scientific theories contained in the book, and found that the author’s First Amendment rights could be impermissibly restricted if she had to worry about liability for every statement in the book.

The other case, filed in a federal trial court in New York, involved commercial publishers of scientific journals who sued nonprofit scientific societies for false advertising under the Lanham Act for publishing comparative surveys of scientific journals that rated the nonprofit organizations’ journals as superior.¹³ The commercial publishers maintained that the articles containing the surveys were promotional materials disguised as neutral academic inquiry, and thus constituted misleading advertising under the Lanham Act.

The defendants argued that the lawsuit should be dismissed because the articles did not constitute commercial advertising or promotion under the Lanham Act. The plaintiffs argued that, although the articles did not appear on their face to be advertising, they were "advertising in effect" because they were used by the defendants to promote their journals. This required the court to consider whether the articles fell under the definitions of commercial advertising under the Lanham Act and commercial speech under the First Amendment.

The court found that the central issue was whether the articles in question were commercial speech under the First Amendment, and agreed with the defendants’ argument that the articles were noncommercial speech entitled to the full protection of the First Amendment. The court noted that the defendants were nonprofit entities that had noncommercial purposes, which implicated significant First Amendment concerns.

Moreover, the court reasoned, even if the articles were advertising, the product they advertised was a constitutionally protected one—academic journals. The court did not find the alleged advertising message to be the articles’ central message or intent. Furthermore, the fact that the nonprofit groups stood to benefit from publishing the survey results did not in itself turn the articles into commercial speech, the court held, finding that "non-profit organizations must be free to participate fully in the marketplace of ideas without fear of sanctions, even if such participation redounds to their financial benefit." Consequently, the court ruled that the articles were constitutionally protected speech beyond the reach of the Lanham Act.

The cases discussed in this article demonstrate that any dentist or association sued for expressing a scientific opinion may have a strong defense under the First Amendment. It’s a sign that our justice system is properly applying the First Amendment to protect scientific debate.

View larger version (132K): [in this window] [in a new window]   Mr. Sfikas is ADA chief counsel and an adjunct professor of law at Loyola University of Chicago School of Law. He has lectured and written on legal issues and is a fellow of the American College of Trial Lawyers. Address reprint requests to Mr. Sfikas at the ADA, 211 E. Chicago Ave., Chicago, Ill. 60611.