1 Linda, Rosenstock & Lore, Jackson Lee, Attacks on Science: The Risks to Evidence-Based Policy, 92 AM. J. PUB. HEALTH 14, 14 (2002)Google Scholar.

2 Brian Martin, Suppression of Dissent in Science, in 7 RESEARCH IN SOCIAL PROBLEMS AND PUBLIC POLICY 105, 107 (William R. Freudenburg & Ted I.K. Youn eds.1999).

3 Elihu Richter et al., Efforts to Stop Repression Bias by Protecting Whistleblowers, 7 INTL. J. OCCUPATIONAL & ENVTL. HEALTH 68, 68 (Jan./Mar. 2001); see also infra notes 68-70 and accompanying text.

4 A., Dan Tarlock, Who Owns Science?, 10 PA. ST. ENVTL. L. REV. 135, 136 (2002)Google Scholar; see also Brian Martin, The Scientific Straightjacket: The Power Structure of Science and the Suppression of Environmental Scholarship, ECOLOGIST, Jan.-Feb. 1981, at 33, 35 (arguing that environmental scholarship is a prime area for suppression because it often threatens vested interests).

5 Richter et al., supra note 3, at 68.

6 See, e.g., ROBERT K. MERTON, SOCIAL THEORY AND SOCIAL STRUCTURE 557 (1963) (arguing that shared knowledge and full and open communication of methods and findings is one of the four imperatives of the ethos of modern science); EVE PELL, THE BIG CHILL: HOW THE REAGAN ADMINISTRATION, CORPORATE AMERICAN, AND RELIGIOUS CONSERVATIVES ARE SUBVERTING FREE SPEECH AND THE PUBLIC's RIGHT TO KNOW 77 (1984) (noting the argument of William D. Carey of the American Association for the Advancement of Science that good science depends as much on the free exchange of information as on the empirical process); John, T. Edsall, Scientific Freedom and Responsibility, 188 SCIENCE 687, 688-89 (1975)Google Scholar (arguing that secrecy harms science because free dissemination of information and open discussion are essential parts of the scientific process).

7 See John, T. Edsall, Two Aspects of Scientific Responsibility, 212 SCIENCE 11, 12 (1981)Google Scholar (observing that scientific facts and value judgments in controversial issues such as environmental protection are so closely interwoven they are exceedingly difficulty to disentangle); Robert R. Kuehn, The Environmental Justice Implications of Quantitative Risk Assessment, 1996 U. ILL. L. REV. 103, 133-39 (noting the ability of risk assessors to shape the results of environmental risk assessments).

8 Brian Martin explains the difference between commonly accepted means of disagreeing with a scientist's work and suppression:

Martin, supra note 2, at 110.

9 See AMERICAN ASSOCIATION FOR ADVANCEMENT OF SCIENCE, ABOUT THE SCIENCE AND HUMAN RIGHTS PROGRAM, at http://shr.aaas.org/about.htm (last visited July 1, 2004) (To flourish, [science] requires freedom of thought, expression and movement, and the freedom to pursue professional activities without interference.).

10 See Edsall, supra note 6, at 690; Richter et al., supra note 3, at 68; Steven, A. Rosenberg, Secrecy in Medical Research, 334 NEW ENG. J. MED. 392, 393 (1996)Google Scholar; David Shenk, Money Science = Ethics Problems on Campus, NATION, Mar. 22, 1999, at 11, 14.

11 INTERNATIONAL SOCIETY OF ENVIRONMENTAL EPIDEMIOLOGISTS, PROPOSED DEFINITIONS: RESEARCH SUPPRESSION & RESEARCH REPRESSION, at http://www.iseepi.org/ethguide.htmbias_definitions (last visited July 1, 2004).

12 BRIAN MARTIN, SUPPRESSION STORIES 52 (1997).

13 Brian, Martin, Suppressing Research Data: Methods, Context, Accountability, and Responses, 6 ACCOUNTABILITY IN RESEARCH 333, 346-47 (1999)Google Scholar [hereinafter Suppressing Research Data]; Brian Martin, Critics of Pesticides: Whistleblowing or Suppression of Dissent?, 22 PHIL. & SOC. ACTION 33, 44-45 (No. 3, 1996) [hereinafter Critics of Pesticides]; Richter et al., supra note 3, at 68.

14 For a discussion of other ways that environmental science may be distorted or suppressed, see COMMITTEE ON GOVT REFORM, POLITICS AND SCIENCE IN THE BUSH ADMINISTRATION (Minority Staff, Special Investigations Division 2003); UNION OF CONCERNED SCIENTISTS, SCIENTIFIC INTEGRITY IN POLICYMAKING (2004), available at http://www.ucsusa.org/publications/report.cfm?publicationID=730; Linda Greer & Rena Steinzor, Bad Science, ENVTL. FORUM 28 (Jan./Feb. 2002); Carolyn Raffensperger, Bush Brings Sounds of Silence, Not Science, ENVTL. FORUM 12 (Jan./Feb. 2003).

15 Martin, supra note 2, at 107. When physical violence is used against opponents including beatings, imprisonment, torture, and murderthis can be called repression, restricting the term suppression to restraint or inhibition without physical force. Id.

16 David, G. Kern, The Unexpected Result of an Investigation of an Outbreak of Occupational Lung Disease, 4 INTL J. OCCUPATIONAL & ENVTL. HEALTH 19, 19-20 (1998)Google Scholar.

17 Id. at 20, 25; Miriam, Shuchman, Secrecy in Science: The Flock Worker's Lung Investigation, 129 ANNALS INTERNAL MED. 341, 341-42 (1998)Google Scholar.

18 Kern, supra note 16, at 25, 29.

19 Id. at 25-26.

20 Id. at 27, 29; Joseph, LaDou, The Rise and Fall of Occupational Medicine in the United States, 22 AM. J. PREVENTATIVE MED. 285, 292 (2002)Google Scholar; Wade, Roush, Secrecy Dispute Pits Brown Researcher Against Company, 276 SCIENCE 523, 523-24 (1997)Google Scholar.

21 Jan Hollingsworth, Warnings Cut from Malathion Report, TAMPA TRIB., Jan. 17, 1999, at 1.

22 Id. Shafey, as head of the state's pesticide poisoning surveillance program, documented more than a hundred cases of illness associated with the state's 1998 malathion spraying campaign to eradicate the Mediterranean fruit fly. Jan Hollingsworth, CDC Agrees Malathion Caused Illness, TAMPA TRIB., Nov. 11, 1999, at 1.

23 Jan Hollingsworth, Shafey Firing Raises Issue of Autonomy, TAMPA TRIB., Apr. 5, 2000, at 1; see also Karen Charman, Collateral Damage in the Pesticide Wars, at http://www.tompaine.com/feature2.cfm/ID/4691 (Jan. 7, 2002). The Centers for Disease Control and Prevention official praised Shafey for his email. Hollingsworth, supra.

24 Jan Hollingsworth, Health Office Fires Critic, TAMPA TRIB., Mar. 18, 2000, at 1. Martin notes that the rhetoric of accountability, through audits or surveillance, is sometimes used to harass a scientist. Suppressing Research Data, supra note 13, at 355. MARTIN, supra note 12, at 30 (suggesting a double standard test to determine if the problematic scientist is being treated the same as other employees or instead discriminated against because of unwelcome research or recommendations).

25 Mehlman v. Mobil Oil Corp., 707 A.2d 1000, 1002-03 (N.J. 1998).

26 Id. at 1003.

27 Id. at 1003-04. The jury found that Mobil's purported grounds for Mehlman's termination were pretextual. Id. at 1005.

28 Id. at 1008, 1017. The jury awarded Mehlman over 2.56 million for his financial losses and 875,000 for emotional distress. Id. at 1008. In addition, the jury awarded 3.5 million in punitive damages based upon Mobil's attempted smear campaign and as a necessary deterrent to prevent Mobil and other companies from silencing their employees when they object to the type of harmful, dangerous conduct by their employers claimed here. Mehlman v. Mobil Oil Corp., 676 A.2d 1143, 1162, 1164-65 (N.J. App. 1996). Mehlman described his efforts to restore his reputation and to battle against the smear campaign as nine years of hell. Tony Cantu, Whistleblower Says Win Over Mobil is Global Warning, PRINCETON PACKET (Princeton, N.J.), Mar. 31, 1998, at 1A, available at http://www.pacpubserver.com/new/news/3-31-98/whistle.html.

29 Perry Beeman, Ag Scientists Feel the Heat, DES MOINES REGISTER, Dec. 1, 2002, at 1A.

30 Id.

31 E.g. PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY, GRIZZLY SCIENCE: GRIZZLY BEAR BIOLOGY IN THE GREATER YELLOWSTONE 11-12, 16-19 (1997).

32 Laurie Flynn & Michael Sean Gillard, Pro-GM Food Scientist Threatened Editor, GUARDIAN (London), Nov. 1, 1999, at 1 (reporting threat against Dr. Richard Horton). The scientist accused of making the threat denied doing so. Id.

33 GERALD MARKOWITZ & DAVID ROSNER, DECEIT AND DENIAL: THE DEADLY POLITICS OF INDUSTRIAL POLLUTION 58-59 (2002); Herbert, L. Needleman, Salem Comes to the National Institutes of Health: Notes from Inside the Crucible of Scientific Integrity, 90 PEDIATRICS 977, 977 (1992)Google Scholar.

34 William Booth, Utah Faculty Joins Cold Fusion Controversy, WASH. POST, June 10, 1990, at A4; Robert, Pool, Cold Fusion Follies, 250 SCIENCE 755 (1990)Google Scholar. After a storm of protests from other scientists, the lawyer dropped the threat. Booth, supra.

35 Bill Gaffey's Work, RACHEL's ENV't & HEALTH NEWS, May 16, 1996, at 1, available at http://www.monitor.net/rachel/r494.html. A number of prominent newspapers, including the Atlanta Constitution and the Austin (Tex.) American-Statesman, also reported the allegations in the Environmental Protection Agency (EPA) memo but were not sued, evidencing the selective nature of the harassment efforts. Id. On the eve of trial, the plaintiff died. Id.

36 Frank Clifford, Lawsuit Threat Halts Dump Site Tests Environment, L.A. TIMES, Nov. 22, 1996, at A3.

37 Id.; Peter Montague, 552-Political Science, RACHEL's ENV't & HEALTH NEWS, Nov. 28, 1996, at 1, available at http://www.monitor.net/rachel/r522.html ; see also Philippine Activists Sued for Libel, 12 GLOBAL PESTICIDE CAMPAIGNER at 14 (2002), available at http://www.panna.org/resources/gpc/gpc_200208.12.2.dv.html (reporting on repeated libel lawsuits by pesticide manufacturers against Dr. Romy Quijano over his research on pesticide poisonings in the Philippines).

Critics also have used lawsuits, or the threat of lawsuits, to suppress the work of medical scientists. See, e.g., Douglas M. Birch & Gary Cohn, Standing Up to Industry As Corporations Increasingly Hold Their Purse Strings: Many Researchers Feel Pressured to Deliver Favorable Results, BALT. SUN, June 26, 2001, at 1A (reporting on a 10 million demand by a drug manufacturer against university researchers who published results that the company's AIDS drug was ineffective); Robert, Finn, Landmark Case, 10 SCIENTIST 15 (1996)Google Scholar (reporting on Immuno AG.'s libel suit based on a letter published in a medical journal that objected to the company's proposed experiments on chimpanzees); David, J. Hess, Suppression, Bias, and Selection in Science: The Case of Cancer Research, 6 ACCOUNTABILITY IN RES. 245 (1999)Google Scholar (reporting on the suppression of research on the role of bacteria in cancer etiology); Drummond, Rennie, Thyroid Storm, 277 JAMA 1238 (Apr. 16, 1997)Google Scholar (reporting on a pharmaceutical corporation's threats of legal action against a medical researcher and her university to prevent publication of research on the thyroid drug Synthroid); Miriam, Shuchman, Legal Issues Surrounding Privately Funded Research Cause Furor in Toronto, 159 CAN. MED. ASSN J. 983 (1998)Google Scholar (reporting on threats of a lawsuit by Apotex against a university researcher over her desire to inform clinical trial patients that an experimental iron chelator might put the patients at risk of early death).

38 Keith Schneider, Hard Times, AMICUS J., Fall 1982, at 22.

39 Reuber v. Food Chemical News, Inc., 925 F.2d 703, 707-08 (4th Cir. 1991) (holding that there was insufficient evidence to support the jury's verdict that an article containing one or more false statements about Reuber had been published with actual malice).

40 Schneider, supra note 38, at 29-30.

41 Letter from David L. Lewis, Research Microbiologist, to James Sensenbrenner, Chair, Judiciary Committee, U.S. House of Representatives (May 3, 2001) (on file with author); Muting the Whistleblowers, SARASOTA HERALD TRIB., Aug. 23, 2003, at A18; see also http://members.aol.com/lewisdavel/ (last visited July 1, 2004) (containing Dr. Lewis explanation for his May 28, 2003 termination by EPA).

42 Caroline Snyder, EPA Wants Scientist Out for Publishing Papers Critical of Sludge Rule, INSIDE THE FISHBOWL, July 2002 (Chapter 280 of the National Treasure Employees Union, Washington, D.C.), available at http://www.nteu280.org/fishbowl/julyfishbowl.htm.

43 Id.; Lee Shearer, Whistleblower Bows Out at EPA, ATHENS BANNER-HERALD (Athens, Ga.), May 28, 2003, at A3; see also Bonner R. Cohen, EPA Flayed Over Sludge Policy, Bullying of Citizens, ENV't NEWS, May 1, 2000, available at http://www.heartland.org/article.cfm?artId=9784.

44 DEVRA DAVIS, WHEN SMOKE RAN LIKE WATER 126-27 (2002).

45 Stephen Burd, Scientists See Big Business on the Offensive: Researchers Say Industry Uses Federal Rules on Misconduct to Attack Findings It Doesn't Like, CHRON. HIGHER EDUC., Dec. 14, 1994, at A26; Needleman, supra note 33, at 979-80. But see Claire, B. Ernhart et al., On Being a Whistleblower: The Needleman Case, 3 ETHICS & BEHAV. 73 (1993)Google Scholar (defending the allegations made against Needleman).

46 Burd, supra note 45, at A27; Needleman, supra note 33, at 980. Needleman argues that his experience shows that the federal investigative process can be rather easily exploited by commercial interests to cloud the regulatory consensus about a toxicant's dangers, can slow the regulatory pace, can damage an investigator's credibility, and can keep him tied up almost to the exclusion of any scientific output for long stretches of time, while defending himself. Id.

47 David Quist & Ignacio H. Chapela, Transgenic DNA Introgressed into Traditional Maize Landraces in Oaxaca, Mexico, 414 NATURE 541 (2001).

48 NOW WITH BILL MOYERS, SEEDS OF CONFLICT: NATURE ARTICLE DEBATE, at http://www.pbs.org/now/science/genenature.html (Oct. 4, 2002).

49 Id.; Peter Aldhous, More Heat Than Light, 420 NATURE 730 (Dec. 19/26, 2002); Jonathan Matthews, Amaizing Disgrace, ECOLOGIST, May 2002, at 30; George Monbiot, Corporate Phantoms, GUARDIAN (London), May 29, 2002, at 17; Kara Platoni, Kernels of Truth, EAST BAY EXPRESS (Cal.), May 29, 2002, available at http://www.eastbayexpress.com/issues/2002-05-29/feature.html.

50 Justin Berton et al., What Ever Happened To : Another Look at Stories That Appeared in the Express in 2002, EAST BAY EXPRESS (Cal.), Dec. 25, 2002, available at http://www.eastbayexpress.com/issues/2002-12-25/news8.html/1/index.html; Marc Kaufman, Battlelines Drawn in Mexico Over Genetically Modified Corn, GUARDIAN WKLY. (London), Apr. 4, 2002, at 33, available at http://education.guardian.co.uk/higher/biologicalscience/story/0,9834,678935,00.html; see also Edward, Groth III, The Debate Over Food Biotechnology in the United States: Is a Societal Consensus Achievable?, 7 SCI. & ENGINEERING ETHICS 327 (2001)Google Scholar (detailing the vituperative ad hominem attacks by proponents of water fluoridation, nuclear power, and pesticides against leading opponents of those technologies); David Helvarg, The Greenhouse Spin, NATION, Nov. 16, 1996, at 21 (reporting on efforts to undermine the Intergovernmental Panel on Climate Change's 1995 report on global climate change by alleging misconduct by the chief scientists who prepared the report).

51 WESLEY COHEN ET AL., UNIVERSITY-INDUSTRY RESEARCH CENTERS IN THE UNITED STATES (1994). The centers conduct research and development in basic science, applied science, and engineering. Id. at 13-14.

52 Id. at 27. The survey did not indicate what kinds of information companies can ask to have deleted. Id.

53 David Blumenthal et al., Withholding Research Results in Academic Life Science, 277 JAMA 1224, 1226 (Apr. 16, 1997). The National Institutes of Health generally considers a thirty to sixty-day research delay to be reasonably necessary for commercialization purposes. Developing Sponsored Research Agreements: Considerations for Recipients of NIH Research Grants and Contracts, 59 Fed. Reg. 55,673, 55,676 (Nov. 8, 1994).

54 Blumenthal et al., supra note 53, at 1226. Forty-six percent reported delaying publication for more than six months to allow time for patent application; 33% reported delaying to protect the proprietary value of the research by means other than patent application. Id.

55 Id.

56 Id. at 1227.

57 David, Blumenthal et al., Relationships Between Academic Institutions and Industry in the Life Sciences An Industry Survey, 334 NEW ENG. J. MED. 368 (1996)Google Scholar.

58 Id. at 371.

59 Id. at 372.

60 One in Three Asked to Tailor Research Findings, IPMS BULL., Feb. 2000, at 8; see also Liz Lightfoot, Scientists Asked to Fix Results for Backer, DAILY TELEGRAPH (London), Feb. 14, 2000, at 9.

61 Richter et al., supra note 3, at 70 (reporting the responses of ten individuals who completed the questionnaire at the 1999 Annual Conference of the International Society of Environmental Epidemiologists).

62 Susan Wilson & Ian Barnes, Scientists Participation in Environmental Policy, 26 SEARCH 270, 273 (Oct. 1995).

63 Id.

64 Id. at 271.

65 Jennifer, L. Wilkins et al., Moving from Debate to Dialogue About Genetically Engineered Foods and Crops: Insights from a Land Grant University, 18 J. SUSTAINABLE AGRIC. 167, 185, 194 (2001)Google Scholar.

66 Id. at 196; see also Karen Charman, Spinning Science into Gold, SIERRA MAG., July/Aug. 2001, at 40 (reporting on the backlash against academics who openly criticize biotechnology).

67 Katherine S. Mangan, Drug Company Seeks 10-Million from Scientist and University, CHRON. HIGHER EDUC., Nov. 17, 2000, at A48 (reporting observation of Marcia Angell, former editor of the New England Journal of Medicine).

68 Martin, supra note 4, at 33; see also Howard, M. Bahr, Violations of Academic Freedom: Official Statistics and Personal Reports, 14 SOC. PROBS. 310, 319 (1967)Google Scholar (There are approximately one hundred personally perceived violations of academic freedom for every officially reported violation.).

69 See, e.g., SAMUEL S. EPSTEIN, POLITICS OF CANCER 300, 308 (1979) (characterizing industry suppression and destruction of data by scientists on the dangers of cancer from exposure to pollution as commonplace and legion); Frederick, R. Anderson, Science Advocacy and Scientific Due Process, 16 ISSUES SCI. & TECH. 71, 74 (Summer 2000)Google Scholar (Well-organized campaigns against certain types of research and the researchers who conduct them do appear to be on the rise .); Critics of Pesticides, supra note 13, at 46 (arguing that suppression is much more common than generally realised); Richard, A. Deyo et al., The Messenger Under AttackIntimidation of Researchers by Special-Interest Groups, 336 NEW ENG. J. MED. 1176, 1176 (1997)Google Scholar (arguing that increased financial and public interest in health hazards invite more frequent and acrimonious attacks on health research); Richter et al., supra note 3, at 68 (characterizing pressure on environmental scientists to discourage a particular line of research or publication of unwelcome research findings as increasingly common).

70 Beeman, supra note 29 (reporting the opinion of economist Neil Harl of Iowa State University).

71 Martin, supra note 4, at 47.

72 RESTATEMENT (SECOND) OF TORTS 559 (1977); see also RODNEY A. SMOLLA, LAW OF DEFAMATION 1:8 (2d ed. 2003). For product disparagement, or trade libel, a plaintiff must prove that the defendant published a knowingly false statement harmful to the interests of another and intended the publication to harm the plaintiff's pecuniary interest. RESTATEMENT (SECOND) OF TORTS 526.

73 PROSSER AND KEETON ON THE LAW OF TORTS 779 (W. Page Keeton et al. eds., 5th ed. 1984) [hereinafter PROSSER AND KEETON]; SMOLLA, supra note 72, 4:75; see also Vincent, Brannigan & Bruce, Ensor, Did Bose Speak Too Softly?: Product Critiques and the First Amendment, 14 HOFSTRA L. REV. 571, 573 (1986)Google Scholar.

74 First Amendment rules apply to claims of damage from false speech even if the plaintiff's claim is cast as product disparagement or some other tort. See, e.g., Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 513 (1984) (accepting the application of the New York Times v. Sullivan actual malice standard to cases involving product disparagement); Auvil v. CBS 60 Minutes, 67 F.3d 816, 820 (9th Cir. 1995) (relying on defamation cases to determine a claim of product disparagement because as a tort whose actionability depends on the existence of disparaging speech, the tort is substantially similar to defamation); Blatty v. N.Y. Times Co., 728 P.2d 1177, 1182 (Cal. 1986) (holding that First Amendment protection applies to all claims whose gravamen is the injurious falsehood of a statement).

75 Public officials include those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs. Rosenblatt v. Baer, 383 U.S. 75, 85 (1966). The employee's position must be one which would invite public scrutiny and discussion of the person holding it, entirely apart from the scrutiny and discussion occasioned by the particular charges in controversy. Id. at 86 n.13. In close cases, courts have begun to emphasize the degree of policy-making authority wielded by the plaintiff in his or her official position, as well as the plaintiff's level of access to the media, as factors to be weighed in making the public official determination. SMOLLA, supra note 72, 2:108.

76 Gertz v. Robert Welch, Inc., 418 U.S. 323, 351 (1974).

77 Id. The Court has stated that the media cannot bootstrap a person into a public figure by pointing to media coverage by the defendant of the plaintiff as evidence that the plaintiff is a public figure. Hutchinson v. Proxmire, 443 U.S. 111, 135 (1979). The public controversy that gives rise to public figure status must preexist the statement that gives rise to the defamation suit, not be created by the media itself. SMOLLA, supra note 72, 2:25.

78 Gertz, 418 U.S. at 345.

79 The U.S. Fourth Circuit Court of Appeals uses a five-part test to determine limited purpose public figure status: 1) plaintiff had access to channels of effective communication; 2) plaintiff voluntarily assumed a role of special prominence in a public controversy; 3) plaintiff sought to influence the resolution or outcome of the controversy; 4) the controversy existed prior to publication of the defamatory statements; and 5) plaintiff retained public figure status at the time of the alleged defamation. Fitzgerald v. Penthouse Intl, Ltd., 691 F.2d 666, 668 (4th Cir. 1982).

80 See, e.g., McBride v. Merrell Dow & Pharmaceuticals, Inc., 800 F.2d 1208, 1211 (D.C. Cir. 1986). But see Wolston v. Reader's Digest Assn, Inc., 443 U.S. 157, 166-69 (1979) (holding that dragging a person unwillingly into a controversy, by requiring them to testify at a proceeding or charging them with a crime, does not make the person a limited public figure); Franklin v. Benevolent & Protective Order of Elks, 159 Cal. Rptr. 131, 137-41 (Cal. Ct. App. 1979) (holding that teacher was not a limited public figure in a controversy inspired by her choice of a textbook where she spoke at a public hearing and otherwise participated only to the extent required by school regulations or made necessary by inquires of the media).

81 See, e.g., Reuber v. Food Chem. News, Inc., 925 F.2d 703, 708 (4th Cir. 1991); Renner v. Donsbach, 749 F. Supp. 987, 991 (W.D. Mo. 1990); Park v. Capital Cities Communications, Inc., 585 N.Y.S.2d 902, 905 (N.Y. App. Div. 1992).

82 See, e.g., Faltas v. State Newspaper, 928 F. Supp. 637, 645 (D.S.C. 1996), affd., 155 F.3d 557 (4th Cir. 1998). But see Madsen v. Buie, 454 So. 2d 727, 730 (Fla. Dist. Ct. App. 1984) (holding that a single published letter to a newspaper did not make a university professor of psychology a limited public figure).

83 Hutchinson v. Proxmire, 443 U.S. 111 (1979).

84 Id. at 134-35. Neither his applications for federal grants nor his publications in professional journals can be said to have invited that degree of public attention and comment on his receipt of federal grants essential to meet the public figure level. Id. at 135. Thus, publication of scientific research in journals, without more, should not make a scientist a limited public figure. See Greenberg v. CBS, Inc., 419 N.Y.S.2d 988, 993-94 (N.Y. App. Div. 1979) (noting that a scientist's journal articles were intended for a scholarly audience, not for a mass market).

The Court did not address whether the professor was a public official but did note that the category cannot be though to include all public employees. Hutchinson, 443 U.S. at 119 n.8; see Staheli v. Smith, 548 So.2d 1299, 1304 (Miss. 1989) (holding that public university professor involved in geology research and grants was not in that class of higher level, decision-making public employees that are deemed public officials); see generally Brian, Markovitz, Note, Public School Teachers as Plaintiffs in Defamation Suits: Do They Deserve Actual Malice?, 88 GEO. L.J. 1953, 1981-83 (2000)Google Scholar (noting the split in state courts on whether public school teachers are public officials but arguing that it is inappropriate to treat public school teachers as public officials).

85 Reuber, 925 F.2d at 709-10.

86 See generally Bruno & Stillman, Inc. v. Globe Newspaper Co., 633 F.2d 583, 590-91 (1st Cir. 1980) (using a three-part test to determine if a corporation is a limited purpose public figure: 1) whether the controversy giving rise to the defamation was a public, or merely private, matter; 2) whether the controversy pre-existed the defamatory statements at issue; and 3) the nature and extent of the plaintiff's participation in the controversy). When a corporation sues in defamation, a majority of courts apply the same public-private figure and public concern standards to determine the burden of proof to place on the business. See SMOLLA, supra note 72, 2:96, 2:98.

87 N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964).

88 Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 667 (1989).

89 Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 513 (1984).

90 Harte-Hanks Communications, Inc., 491 U.S. at 666-67; Old Dominion Branch No. 496, Nat'l Ass'n of Letter Carriers v. Austin, 418 U.S. 264, 281 (1974).

91 Edwards v. Natl Audubon Socy, 556 F.2d 113, 120-21 (2d Cir. 1977).

92 Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 777 (1986). State fault standards include negligence, actual malice, and gross negligence, although the vast majority of states have adopted the negligence standard in defamation actions brought by private figure plaintiffs. SMOLLA, supra note 72, 3:28, 3:30.

93 Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 761 (1985).

94 See id. at 762 (focusing on whether or not the statement was solely in the interest of the speaker and on the scope of the dissemination of the statement); Farnsworth v. Tribune Co., 253 N.E.2d 408, 411 (Ill. 1969).

95 In Reuber, the court characterized the debate over the carcinogenic hazards of pesticide spraying as a controversy of immense public concern, observing that the implications of scientific research are more far reaching today than ever before and noting the enhanced importance of the public's understanding of a scientist's credentials and conclusions. Reuber v. Food Chemical News, 925 F.2d 703, 718, 720 (4th Cir. 1991).

96 Milkovich v. Lorain Journal Co., 497 U.S. 1, 19 (1990).

97 Id. at 20 (holding a statement of opinion relating to matters of public concern which does not contain a provably false factual connotation will receive full constitutional protection); In re Palmisano, 70 F.3d 483, 487 (7th Cir. 1995) (Even a statement cast in the form of an opinion (I think that Judge X is dishonest) implies a factual basis, and the lack of support for that implied factual assertion may be a proper basis for a penalty.).

98 See, e.g., Peter Scalamandre & Sons, Inc. v. Kaufman, 113 F.3d 556, 562 (5th Cir. 1997) (His figurative reference to poison is hyperbolic, but exaggeration does not equal defamation.).

To be defamatory, the statement also must be of or concerning the plaintiff. Rosenblatt v. Baer, 383 U.S. 75, 81 (1966); SMOLLA, supra note 72, 4:39. Where a scientist's research pertains to a group or class and is not reasonably susceptible of application to any given persons, a claim for defamation is not actionable. See, e.g., Texas Beef Group v. Winfrey, 11 F. Supp. 2d 858, 863-64 (N.D. Tex. 1998) (holding that cattlemen plaintiffs had failed to show that statements about risks of Mad Cow Disease were of and concerning them), affd on other grounds, 201 F.3d 680 (5th Cir. 2000); Gintert v. Howard Publns, Inc. 565 F. Supp. 829, 833 (N.D. Ind. 1983) (holding that statements about environmental and public health conditions in a community were not reasonably susceptible of application to any given individual); Natl Nutritional Foods Assn v. Whelan, 492 F. Supp. 374, 380-81 (S.D.N.Y. 1980) (holding that statements in book and article critical of the health food industry were not actionable by individuals in that industry).

99 Auvil v. CBS 60 Minutes, 67 F.3d 816, 821 (9th Cir. 1995).

100 Id. at 821-22.

101 Immuno AG. v. Moor-Jankowski, 567 N.E.2d 1270 (N.Y. 1991).

102 Id. at 1275.

103 Compare id. at 1276, with Texas Beef Group v. Winfrey, 201 F.3d 680, 688 (holding that statements on the Oprah Winfrey Show depicting American beef as unsafe from Mad Cow Disease were not actionable as product or business disparagement because they did not contain a provably false factual connotation).

104 See Baker v. L.A. Herald Examiner, 721 P.2d 87, 90-91 (Cal. 1986) (Where the language of the statement is cautiously phrased in terms of apparency, the statement is less likely to be reasonably understood as a statement of fact rather than opinion.); Dong v. Bd. of Trs. Leland Stanford Junior Univ., 236 Cal. Rptr. 912, 920 (Cal. Ct. App. 1987) (holding that where the underlying facts supporting a belief are disclosed, courts have found such statements not to be actionable in defamation).

105 Reuber v, Food Chemical News, Inc., 925 F.2d 703, 714 (1991).

106 Id. at 716-17. The court noted that the fair report privilege, which shields news organizations from defamation claims when publishing information originally based on government reports or actions, makes it more difficult for a reviewing court to conclude that a news report on government functions was published in reckless disregard of the truth. Id. at 714; see also SMOLLA, supra note 72, 4:100 (noting the increased acceptance of a neutral reportage privilege that protects the reporting of serious charges against a public figure or public official).

107 Reuber, 925 F.2d at 718. The Immuno AG. and Reuber cases support Professor Diane Zimmerman's argument that scientific speech should be afforded the same claim to constitutional protection as a daily newspaper:

Diane, Leenheer Zimmerman, Scientific Speech in the 1990s, 2 N.Y.U. ENVTL. L.J. 254, 263 (1993)Google Scholar.

108 Karaduman v. Newsday, Inc., 416 N.E.2d 557, 563 (N.Y. 1980).

109 DEBORAH BLUM, THE MONKEY WARS 173-74 (1994).

110 Id. at 173. For example, the insurance company for the author of the letter settled the case over her objections and without a retraction of the statements made in the letter for 100,000, having spent 250,000 defending against the lawsuit. ANTHONY LEWIS, MAKE NO LAW: THE SULLIVAN CASE AND THE FIRST AMENDMENT 212 (1991).

111 Jon Wiener, The Cigarette Papers, NATION, Jan. 1, 1996, at 11, 14.

112 Id.

113 Immuno AG., 567 N.E.2d at 1282.

114 Michael, Kent Curtis, Monkey Trials: Science, Defamation, and the Suppression of Dissent, 4 WM. & MARY BILL RTS. J. 507, 537 (1995)Google Scholar.

115 Id. As the rules play out, certain viewpoints are favored over others . Indeed, by permitting long and expensive proceedings--whatever the outcome--the law deters one viewpoint while promoting another. Id.

116 See, e.g., Scientific Fraud: Hearings Before the Subcomm. on Oversight and Investigations of the House Comm. on Energy and Commerce, 101st Cong. (1989); David, P. Hamilton, Can OSI Withstand a Scientific Backlash?, 253 SCIENCE 1084 (1991)Google Scholar (reporting that the National Institutes of Health established the Office of Scientific Integrity in response to Congressional pressure).

117 See, e.g., Responsibility of PHS Awardee and Applicant Institutions for Dealing With and Reporting Possible Misconduct in Science, 42 C.F.R. pt. 50, subpt. A (2003) (containing the Public Health Service's research misconduct regulations); Research Misconduct, 45 C.F.R. pt. 689 (2003) (containing the National Science Foundation's research misconduct regulations); Federal Policy on Research Misconduct, 65 Fed. Reg. 76,260 (Dec. 6, 2000) (containing the Office of Science and Technology Policy's research misconduct policy).

The regulations define misconduct as fabrication, falsification, or plagiarism in proposing, conducting, or reviewing research, or in reporting research results. 42 C.F.R. 50.102 (2003); 45 C.F.R. 689.1(a) (2003); 65 Fed. Reg. 76,262 (Dec. 6, 2000). Misconduct does not include honest error or differences in interpretations or judgments of data. 42 C.F.R. 50.102 (2003); 45 C.F.R. 689.1(b) (2003); 65 Fed. Reg. 76,262 (Dec. 6, 2000). A finding of research misconduct requires that there be a significant departure from accepted research practices, that the misconduct be committed intentionally, knowingly, or recklessly, and that the allegation be proven by a preponderance of the evidence. 45 C.F.R. 689.2(c) (2003); 65 Fed. Reg. 76,262 (Dec. 6, 2000).

118 See, e.g., COMMISSION ON RESEARCH INTEGRITY, INTEGRITY AND MISCONDUCT IN RESEARCH: REPORT OF THE COMMISSION ON RESEARCH INTEGRITY 28 (U.S. Dep't of Health & Human Servs. 1995) (Members of the scientific community with knowledge of research misconduct have an ethical responsibility to come forward.); COMMITTEE ON THE CONDUCT OF SCIENCE, ON BEING A SCIENTIST 18 (Natl Acad. of Sciences 1989) (arguing that researchers have a professional and ethical obligation to take action when they witness scientific misconduct by a colleague); Paul, J. Friedman, Advice to Individuals Involved in Misconduct Accusations, 71 ACADEMIC MED. 716, 718 (1996)Google Scholar.

119 See, e.g., 42 U.S.C.A. 289b(e) (2003) (requiring the Department of Health and Human Services to develop regulations that require institutions that receive financial assistance for biomedical or behavioral research to establish standards to prevent and respond to retaliation against an employee alleging research misconduct).

120 See, e.g., 42 C.F.R. 50.103(d)(13) (2003); 45 C.F.R. 689.4(a)(4) (2003); Notification of Final Policy, 65 Fed. Reg. 76,260, 76,263 (Dec. 6, 2000).

121 Professor Ellen Silbergeld explained the lead industry's efforts to silence Dr. Herbert Needleman:

Ellen, K. Silbergeld, Annotation: Protection of the Public Interest, Allegations of Scientific Misconduct, and the Needleman Case, 85 AM. J. PUB. HEALTH 165, 166 (1995)Google Scholar.

122 DAVIS, supra note 44, at 129. William Daniell argues that the Needleman matter was elevated to the level of a misconduct hearing even though the challenged research had been affirmed in previous independent data reanalyses, replicated in other studies, and essentially consisted of differences in opinion on how data should have been analyzed or interpreted. William Edward Daniell, Science, Integrity, and Investigators Rights: Current Challenges, 24 REG. TOXICOLOGY & PHARMACOLOGY S152, S157-58 (1996).

123 Needleman, supra note 33, at 979-80. One of the accusers admitted that the accusers legal fees were paid through a trust fund but declined to identify the source of funds, saying she had been asked to keep the matter confidential. Burd, supra note 45, at A30. Silbergeld characterizes this particular abuse of the scientific misconduct investigative process as intended to hobble a highly accomplished researcher and terrorize those who might be inspired to emulate him. Silbergeld, supra note 121, at 165.

124 Dong v. Bd. of Trustees, 236 Cal. Rptr. 912, 915 (1987).

125 Id. at 915-17; see RESEARCH TRIANGLE INSTITUTE, CONSEQUENCES OF WHISTLEBLOWING FOR THE WHISTLEBLOWER IN MISCONDUCT IN SCIENCE CASES 16 (1995) (reporting that 40% of complainants in scientific misconduct cases reported being subjected to counter allegations) [hereinafter RTI, CONSEQUENCES].

126 Dong, 236 Cal. Rptr. at 915. Dong alleged that he suffered decreased salary, denial of promotions, and emotional distress as a result of the unfounded allegations. Id. at 918. The court dismissed Dong's defamation suit against his accuser and university officials on the ground that the misconduct allegations were mere statements of opinion rather than fact. Id. at 920-21; see also Needleman v. Healy, Civil Action No. 92-749, 749, 1996 U.S. Dist. LEXIS 21614 (W.D. Pa. 1996) (dismissing claims by exonerated scientist for relief against university and government officials over alleged mishandling of misconduct allegations).

127 Deyo et al., supra note 69, at 1176-77.

128 Id. at 1177; Daniell, supra note 122, at S158. But see Albert, Donnay, Intimidation of Researchers by Special-Interest Groups, 337 NEW ENG. J. MED. 1314 (1997)Google Scholar (alleging errors of fact and misrepresentations in the article by Deyo et al., and denying that patients were encouraged to attack the researcher's credibility).

129 Deyo et al., supra note 69, at 1177. Because of the large numbers of complaints, the inquiries lasted more than 13 months, despite institutional policies requiring resolution of the inquiry phase within 30 days. Id.

130 Dan, L. Burk, Research Misconduct: Deviance, Due Process, and the Disestablishment of Science, 3 GEO. MASON INDEP. L. REV. 305, 332 (1995)Google Scholar; see also Press Release, Brown University News Bureau, Federal Agency Concurs with Brown Finding: No Basis for Scientific Misconduct (Mar. 8, 1996), available at http://www.brown.edu/Administration/News_Bureau/1995-96/95-104.html (reporting statements of exonerated university researcher that his integrity was tarnished by the misconduct investigation resulting from false accusations made by an anonymous accuser).

131 Harold, P. Green, Scientific Responsibility and the Law, 20 U. MICH. J.L. REFORM 1009, 1021 (1987)Google Scholar; see also Victoria Slind-Flor, Scientific Fraud and the Law, NATL L.J., Oct. 25, 1993, at 1 (reporting attorney Barbara Mishkin's view that much of the increase in scientific misconduct charges is due to flawed interpersonal relationships among scientists).

132 Burd, supra note 45, at A27.

133 Deyo et al., supra note 69, at 1177.

134 RESEARCH TRIANGLE INSTITUTE, SURVEY OF ACCUSED BUT EXONERATED INDIVIDUALS IN RESEARCH MISCONDUCT CASES 17 (June 30, 1996) [hereinafter RTI SURVEY]. Negative outcomes included additional allegations beyond those of scientific misconduct, threats of lawsuits, ostracization by colleagues, reductions in research support, delays in processing grant applications, delays in obtaining clearance of manuscripts, denial of promotions, denial of salary increases, and termination. Id. at 81; cf. RTI, CONSEQUENCES, supra note 125, at 14 (reporting that 69% of scientific misconduct whistleblowers reported negative consequences from their whistleblowing).

135 RTI SURVEY, supra note 134, at 20.

136 See Ferrer v. Trs. Univ. of Pa., 825 A.2d 591 (Pa. 2002) (upholding an award of 2.9 million to a university researcher for damages caused by university-imposed sanctions despite a determination that the researcher was not guilty of scientific misconduct).

137 See Gina Kolata, Inquiry Lacking Due Process, N.Y. TIMES, June 25, 1996, at C3 (reporting on the adverse consequences not only to exonerated researcher Imanishi-Kari but also to her chief defender Baltimore).

138 See 42 C.F.R. 50.103(d)(1) (2003) (requiring each recipient institution's policies and procedures to provide for an immediate inquiry into an allegation or other evidence of possible misconduct); 45 C.F.R. 689.4(a)(1) (2003) (requiring awardee institutions promptly to initiate an inquiry into any suspected or alleged research misconduct).

The Office of Research Integrity (ORI) encourages institutions receiving federal research funds to adopt its Whistleblower Bill of Rights, which states that witnesses to possible research misconduct have a responsibility to raise their concerns honorably and with foundation. OFFICE OF RESEARCH INTEGRITY, RESPONSIBLE WHISTLEBLOWING: A WHISTLEBLOWER's BILL OF RIGHTS (Nov. 1995), available at http://ori.dhhs.gov/html/publications/guidelines_app_a.asp [hereinafter ORI, RESPONSIBLE WHISTLEBLOWING]. However, federal misconduct regulations do not require that an allegation of misconduct be made with any foundation.

139 42 C.F.R. 50.103(d)(7) (2003) (requiring that an investigation be undertaken if findings from the inquiry provide sufficient basis for conducting an investigation); 45 C.F.R. 689.2(b) (2003) (requiring a determination during an inquiry that an allegation has substance before moving to the investigation stage); see also 65 Fed. Reg. 76,263 (Dec. 6, 2000) (containing the requirement in the Federal Policy on Research Misconduct that an inquiry include an assessment of whether the allegation has substance).

140 ORI, ANALYSIS OF INSTITUTIONAL POLICIES FOR RESPONDING TO ALLEGATIONS OF SCIENTIFIC MISCONDUCT (2000) (referring to Table 3-2), available at http://ori.dhhs.gov/html/polanal3.htm [hereinafter ORI, ANALYSIS].

141 See supra note 123 and accompanying text; see also Deyo et al., supra note 69, at 1179 (noting that no evidence is necessary to bring charges of scientific misconduct).

142 ORI, THE WHISTLEBLOWER's CONDITIONAL PRIVILEGE TO REPORT ALLEGATIONS OF SCIENTIFIC MISCONDUCT (Dec. 1993), available at http://ori.dhhs.gov/html/misconduct/whistle_conditional_priv_report.asp [hereinafter ORI, PRIVILEGE].

143 Public Health Service Standards for the Protection of Research Misconduct Whistleblowers, 65 Fed. Reg. 70,830, 70,840 (Nov. 28, 2000) (to be codified at 42 C.F.R. 94.630(a)); ORI, RESPONSIBLE WHISTLEBLOWING, supra note 138; ORI, WHISTLEBLOWERS, at http://ori.dhhs.gov/html/misconduct/whistleblowers.asp (last updated Feb. 21, 2003). An allegation is in bad faith if made with, in essence, reckless disregard for or willful ignorance of facts that would disprove the allegation. ORI, RESPONSIBLE WHISTLEBLOWING, supra note 138; Public Health Service Standards for the Protection of Research Misconduct Whistleblowers, 65 Fed. Reg. 70,830, 70,840 (Nov. 28, 2000) (to be codified at 42 C.F.R. 94.630(b)). ORI argues that the burden of showing bad faith, and overcoming the presumption of good faith, rests with the plaintiff in a defamation lawsuit. ORI PRIVILEGE, supra note 142.

144 Nisan, A. Steinberg, Regulation of Scientific Misconduct in Federally Funded Research, 10 S. CAL. INTERDISC. L.J. 39, 102 (2000)Google Scholar.

145 Id. at 102 n.377. [I]t appears that the [common law] privilege is lost if the publication is not made primarily for the purpose of furthering the interest which is entitled to protection. If the [accuser] acts chiefly from motives of ill will, he will certainly be liable . [The privilege may also be lost if the accuser does not act] as a reasonable person under the circumstances, with due regard to the strength of his belief, the ground that he has to support it, and the importance of conveying the information. PROSSER AND KEETON, supra note 73, at 834-35.

146 See supra notes 87-91 and accompanying text.

147 65 Fed. Reg. 72,260, 72,262 (Dec. 6, 2000).

148 ORI, ANALYSIS, supra note 140, at App. D. ORI's Model Policy for Responding to Allegations of Scientific Misconduct likewise does not warn against bad faith allegations or specify what action will be taken against such bad faith accusers. ORI, MODEL POLICY FOR RESPONDING TO ALLEGATIONS OF SCIENTIFIC MISCONDUCT (Feb. 1997), available at http://ori.dhhs.gov/multimedia/acrobat/mod_pol.pdf. Instead, the Model Policy simply states that the institutional official who makes the final determination on allegations of scientific misconduct will determine whether any administrative action should be taken against the bad faith whistleblower. Id. at 18.

149 COMMISSION ON RESEARCH INTEGRITY, supra note 118, at 17.

150 E.g., Ferrer v. Trs. Univ. of Pa., 825 A.2d 591 (Pa. 2002); Kolata, supra note 137.

151 I PANEL ON SCIENTIFIC RESPONSIBILITY AND THE CONDUCT OF RESEARCH, RESPONSIBLE SCIENCE: ENSURING THE INTEGRITY OF THE RESEARCH PROCESS 29-30 (1992).

152 Id. at 121.

153 Burd, supra note 45, at A26.

154 COMMISSION ON RESEARCH INTEGRITY, supra note 118, at 17. The Commission's A Whistleblower's Bill of Rights does note that whistleblowers have a responsibility to raise their concerns honorably and with foundation. Id. at 32. Nevertheless, the concluding statement in the Whistleblower's Bill of Rights, in reminding whistleblowers that every right carries with it corresponding responsibility, only warns of the obligation to avoid false statements and unlawful behavior. Id. at 33.

155 Implementation Proposals on Recommendations by the Commission on Research Integrity (Dep't of Health and Human Servs. June 14, 1996), available at http://www.faseb.org/opar/raub.html. The group proposed that ORI refine its regulations on whistleblower protection to ensure adequate protections for accused scientists.

156 Letter from Ralph A. Bradshaw, President, Federation of American Societies for Experimental Biology (FASEB), to Donna Shalala, Secretary, Department of Health and Human Services (HHS) (July 2, 1996), available at http://www.faseb.org/opar/hhslet2.html; Letter from Ralph A. Bradshaw, President, FASEB, to William F. Raub, Science Advisor, Office of Science Policy, HHS (May 13, 1996), available at http://faseb.org/opa/cristat.html.

157 Letter from Ralph A. Bradshaw to Donna Shalala, supra note 156; Letter from Ralph A. Bradshaw to William F. Raub, supra note 156.

158 See Public Health Service Standards for the Protection of Research Misconduct Whistleblowers, 65 Fed. Reg. 70,830, 70,830 (Nov. 28, 2000).

159 Pub. L. No. 95-454, 92 Stat. 1111 (1978).

160 Pub. L. No. 101-12, 103 Stat. 16 (1989) (codified as amended in scattered sections of 5 U.S.C. (2000)).

161 Pub. L. No. 101-12, 2 (1989); 5 U.S.C. 2301(b)(9) (2000).

162 5 U.S.C. 2302(b)(8) (2000).

163 5 U.S.C. 1214(b)(4)(B)(i), 1221(e)(1) (2000).

164 5 U.S.C. 1214(b)(4)(B)(ii), 1221(e)(2) (2000).

165 S. REP. NO. 95-969, at 21 (1978), reprinted in 1978 U.S.C.C.A.N. 2723, 2743.

166 Sazinski v. Dep't of Hous. & Urban Dev., 73 M.S.P.R. 682, 686 (1997) (addressing an engineer's letter and memorandum that expressed concern about the impact of abolishing certain agency positions on the operation of a federal program). Cf. Gady v. Dep't of Navy, 38 M.S.P.R. 118, 121 (1988) (holding that a memorandum complaining that an agency's smoking policy threatened the health of the staff and constituted a fire hazard was a protected disclosure).

167 STEPHEN M. KOHN, CONCEPTS AND PROCEDURES IN WHISTLEBLOWER LAW 101-04 (2001); Thomas, M. Devine, The Whistleblower Protection Act of 1989: Foundation for the Modern Law of Employment Dissent, 51 ADMIN. L. REV. 531, 575-79 (1999)Google Scholar; Editorial, Helping Whistleblowers Survive, N.Y. TIMES, May 1, 1999, at A14; Eric Boehlert, The Betrayal of the Whistle-Blowers, at http://www.salon.com/news/feature/2003/10/21/whistleblower (Oct. 21, 2003) (noting that the appeals court handling Whistleblower Protection Act cases has ruled against whistleblowers eighty-three out of eighty-four times and created a presumption, which can only be overcome with irrefragable proof to the contrary by the whistleblower, that public officers perform their duties correctly, fairly, in good-faith, and in accordance with the law).

168 See, e.g., Toxic Substances Control Act, 15 U.S.C. 2622 (2000); Surface Mining Control and Reclamation Act, 30 U.S.C. 1293 (2000); Water Pollution Control Act, 33 U.S.C. 1367 (2000); Safe Drinking Water Act, 42 U.S.C. 300j-9(i) (2000); Energy Reorganization Act, 42 U.S.C. 5851 (2000); Solid Waste Disposal Act, 42 U.S.C. 6971 (2000); Clean Air Act, 42 U.S.C. 7622 (2000); Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. 9610 (2000) (Superfund).

169 See, e.g., Passaic Valley Sewerage Commrs v. United States Dep't of Labor, 992 F.2d 474, 480-81 (3d Cir. 1993); see also 29 C.F.R. 24.2 (2003) (listing acts prohibited by federal employee protection statutes). To obtain relief, the employee must file a written complaint within thirty days of the alleged discriminatory act (or 180 days in the case of the nuclear whistleblower act) with the U.S. Department of Labor. KOHN, supra note 167, at 145. Once an employee shows that the protected activity played a role in the employer's action, the burden shifts to the employer to show that it would have discharged the employee even if the protected activity had not occurred. See, e.g., Stone & Webster Engg Corp. v. Herman, 115 F.3d 1568, 1572 (11th Cir. 1997); Mackowiak v. Univ. Nuclear Sys., Inc., 735 F.2d 1159, 1163-64 (9th Cir. 1984).

Whistleblower provisions are not intended to be used by employees to shield themselves from the consequences of their own misconduct or failures. Trimmer v. United States Dep't of Labor, 174 F.3d 1098, 1104 (10th Cir. 1999); see also Am. Nuclear Res., Inc. v. United States Dep't of Labor, 134 F.3d 1292, 1295 (6th Cir. 1998) (Moreover, an employer may terminate an employee who behaves inappropriately, even if that behavior relates to a legitimate safety concern.) (citation omitted); Dunham v. Brock, 794 F.2d 1037, 1041 (5th Cir. 1986) (holding that, despite the employee's participation in a protected activity, abusive or profane language coupled with defiant conduct or demeanor justify an employee's discharge on the ground of insubordination). But see Pogue v. United States Dep't of Labor, 940 F.2d 1287, 1290-91 (9th Cir. 1991) (holding that the employer had failed to prove that it would have discharged the employee even if he had not engaged in protected conduct where much of the evidence of the employee's purported disrespectful and insubordinate behavior could reasonably be attributed to the employer's retaliation and where there was no evidence that other employees had received similar disciplinary action based on similar violations).

170 29 C.F.R. 24.8(c), 24.8(d) (2003). Claims by aggrieved employees for monetary damages or other retrospective relief against a state or state officers in their official capacities may be barred by the Eleventh Amendment. See Fed. Maritime Commn v. S.C. State Ports Auth., 535 U.S. 743 (2002) (extending immunity to administrative adjudications); R.I. Dep't of Envtl. Mgmt. v. United States, 304 F.3d 31 (1st Cir. 2002); Conn. Dep't of Envtl. Prot. v. Occupational Safety and Health Admin., 138 F. Supp. 2d 285 (D. Conn. 2001); Florida v. United States, 133 F. Supp. 2d 1280 (N.D. Fla. 2001); Ohio Envtl. Prot. Agency v. United States Dep't of Labor, 121 F. Supp. 2d 1155 (S.D. Ohio 2000); Stephen, M. Kohn et al., Environmental Whistleblowers and the Eleventh Amendment: Employee Protection or State Immunity?, 15 TUL. ENVTL. L.J. 43 (2001)Google Scholar.

171 See KOHN, supra note 167, at 141; see also Marcus v. United States Envtl. Prot. Agency, 92-TSC-5, at 3-4 (Dept. of Labor Feb. 7, 1994) (finding that environmental whistleblower statutes apply to federal government employees and rejecting argument that the Civil Service Reform Act provides a federal whistleblower's exclusive remedy), available at http://oalj.dol.gov/public/wblower/decsn/92tsc05c.htm.

An employee also has a legal remedy under the Occupational Safety and Health Act (OSHA) if the employee is discharged or otherwise discriminated against for filing a complaint or instituting or causing to be instituted any proceeding relating to conditions of employment. 29 U.S.C. 660(c) (2000); 29 C.F.R. pt. 1977 (2003). OSHA whistleblower provisions are limited to complaints that relate to conditions at the workplace, as distinguished from complaints touching only upon general public safety and health. 29 C.F.R. 1977.9(b) (2003).

172 Elletta, Sangrey Callahan & Terry, Morehead Dworkin, The State of State Whistleblower Protection, 38 AM. BUS. L.J. 99, 111-14, tab. I (2000)Google Scholar; see also Stefan, Rutzel, Snitching for the Common Good: In Search of a Response to the Legal Problems Posed by Environmental Whistleblowing, 14 TEMP. ENVTL. L. & TECH. J. 1, 16-23 (1995)Google Scholar (discussing state whistleblower statutes); Laura Simoff, Comment, Confusion and Deterrence: The Problems That Arise from a Deficiency in Uniform Laws and Procedures for Environmental Whistleblowers, 8 DICK. J. ENVTL. L & POLY 325, 333-36 (1999) (same).

In addition to remedies provided under federal or state whistleblower statutes, a majority of states recognize a cause of action for wrongful employment discharge pursuant to the public policy exception to the at-will employment doctrine. KOHN, supra note 167, at 21; Callahan & Dworkin, supra, at 106; Chad, A. Atkins, Note, The Whistleblower Exception to the At-Will Employment Doctrine: An Economic Analysis of Environmental Policy Enforcement, 70 DENV. U. L. REV. 537, 542 (1993)Google Scholar; John, Jacob Kobus Jr., Note, Establishing Corporate Counsel's Right to Sue for Retaliatory Discharge, 29 VAL. U. L. REV. 1343, 1345 (1995)Google Scholar. For a discussion of the use of the public policy exception to protect workers who make complaints relating to health or safety, see KOHN, supra note 167, at 25-56; Rutzel, supra, at 12-16; Gregory, G. Sarno, Annotation, Liability for Retaliation Against At-Will Employee for Public Complaints or Efforts Relating to Health or Safety, 75 A.L.R. 4th 13 (1989)Google Scholar.

173 Mackowiak, 735 F.2d at 1163.

174 See, e.g., 42 U.S.C. 7622(a) (2000) (prohibiting discrimination against any employee who commenced, caused to be commenced, or is about to commence or cause to be commenced a proceeding for the administration or enforcement of any requirement imposed by the Clean Air Act).

175 Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. 9610 (2000).

176 Crosby v. Hughes Aircraft Co., 85-TSC-2, at 14 (Dep't of Labor Aug. 17, 1993), available at http://oalj.dol.gov/public/wblower/decsn/85tsc02d.htm; see also Am. Nuclear Res., Inc. v. United States Dep't of Labor, 134 F.3d 1292, 1295-96 (6th Cir. 1998) (holding that protection only extends to employees who allege a definite and specific violation of safety laws or procedures); Bechtel Constr. Co. v. Secy of Labor, 50 F.3d 926, 931 (11th Cir. 1995) (holding that general inquiries regarding safety do not constitute protected activity); Erickson v. United States Envtl. Prot. Agency, 1999-CAA- 2, at 59 (Dep't of Labor Sept. 24, 2002) (holding that an employee should have more than a mere subjective belief that the environment might be affected), available at http://www.oalj.dol.gov/public/wblower/decsn/99caa02o.htm; Jayko v. Ohio Envtl. Prot. Agency, 1999-CAA-5, at 73 (Dep't of Labor Oct. 2, 2000) (holding that it is not sufficient merely to show that the environment may be negatively impacted by the employer's conduct), available at http://www.oalj.dol.gov/public/wblower/decsn/99caa05a.htm, adjudication enjoined on other grounds, Ohio Envtl. Prot. Agency v. United States Dep't of Labor, 121 F. Supp. 2d 1155 (S.D. Ohio 2000).

177 See, e.g., Passaic Valley Sewerage Commrs v. United States Dept. of Labor, 992 F.2d 474, 478-80 (3d Cir. 1993) (noting that its decision to construe environmental whistleblower statutes to cover internal complaints was consistent with decisions by the Second, Fourth, Sixth, Ninth, Tenth, and D.C. Circuit Courts of Appeals); KOHN, supra note 167, at 174 (noting that every court of appeals that has addressed the issue has held that the internal raising of concerns is a fully-protected activity).

178 See, e.g., Donovan v. R.D. Andersen Constr. Co., Inc., 552 F. Supp. 249, 253 (D. Kan. 1982); KOHN, supra note 167, at 257-58.

179 See, e.g., Ferguson v. Weststar, Inc., 1998-CAA-9, at 6-7 (Dept. of Labor Jan. 27, 2000) (relying on Scott v. Alyeska Pipeline Service Co., 92-TSC-2 (Dep't of Labor July 25, 1995), and Wedderspoon v. City of Cedar Rapids, 80-WPC-1 (Dep't of Labor July 11, 1980)), available at http://www.oalj.dol.gov/public/wblower/decsn/98caa09a.htm; KOHN, supra note 167, at 258 (relying on Simon v. Simmons Indus. Inc., 88-TSC-2 (Dep't of Labor Apr. 4, 1994), affd sub nom. Simon v. Simmons Foods, Inc. 49 F.3d 386 (8th Cir. 1995)). Communication with a member of the public would be a protected activity where there is a causal connection between the employee's communication with that person and any subsequent investigation of the concerns communicated by the employee. Ferguson, 1998-CAA-9 at 6-7.

180 See, e.g., Simon v. Simmons Foods, Inc., 49 F.3d 386, 388 n.1 (8th Cir. 1995); DeFord v. Secy of Labor, 700 F.2d 281, 286 (6th Cir. 1983).

181 Marcus v. United States Envtl. Prot. Agency, 92-TSC-5, at 3-4 (Dep't of Labor Feb. 7, 1994). Marcus preparation and dissemination of the memo was a protected activity because he was deemed to have assisted or participated in a proceeding to carry out the Safe Drinking Water Act and provided information that contributed to the identification of hazardous substances under Superfund. Id. at 5.

182 Marcus v. United States Envtl. Prot. Agency, 1996-CAA-3, at 52 (Dep't of Labor Dec. 15, 1998), available at http://www.oalj.dol.gov/public/wblower/decsn/96caa03a.htm; see also Bechtel Constr. Co., 50 F.3d at 931 (holding that questioning a supervisor's instructions on safety procedures is tantamount to a complaint and constitutes protected activity).

183 David L. Lewis, Background Information on EPA Whistleblowers, at http://www.whistleblowers.org/epawhistleblowers.htm (last visited July 19, 2004). EPA officials alleged that Lewis violated the agency's Standards of Ethical Conduct by not including an appropriate disclaimer on articles he authored that were critical of EPA.

184 Letter from George R. Holt, Wage and Hour Division, U.S. Department of Labor, to Henry L. Longest, II, Deputy Assistant Administrator for Management, U.S. Environmental Protection Agency (undated 1997 letter) (on file with author); Wage and Hour Division Compliance, U.S. Department of Labor, Dr. David L. Lewis v. EPA Investigation Report (Jan. 16, 1997) (on file with author).

185 Jenkins v. United States Environmental Protection Agency, 92-CAA-6 (Dep't of Labor Dec. 14, 1992), available at http://www.oalj.dol.gov/public/wblower/decsn/92caa06a.htm.

186 Abu-Hjeli v. Potomac Elec. Power Co., 89-WPC-1, at 5 (Dept.of Labor Sept. 24, 1993), available at http://www.oalj.dol.gov/public/wblower/DECSN/89WPC01B.htm.

187 Jayko v. Ohio Envtl. Prot. Agency, 1999-CAA-5, at 73, 75-77 (Dep't of Labor Oct. 2, 2000); see also Florida v. United States, 133 F. Supp. 2d 1280 (N.D. Fla. 2001) (addressing a whistleblower protection complaint filed by Dr. Omar Shafey alleging that he was discriminated against and ultimately fired from his state agency job in retaliation for communications he made regarding risks from pesticide exposure).

188 Jarvis v. Battelle Pacific NW Lab., 97-ERA-15, at 3-4 (Dep't of Labor June 2, 1997), available at http://www.oalj.dol.gov/public/wblower/DECSN/97ERA15A.HTM.

189 See Crosby v. Hughes Aircraft Co., 85-TSC-2, at 14 (Dep't of Labor Aug. 17, 1993) (holding that an employee's complaint must be grounded in conditions constituting reasonably perceived violations of the environmental acts). But cf. 42 U.S.C. 9610(a) (2000) (protecting employees who provide information to a State or to the Federal Government for use under Superfund).

190 Pickering v. Bd. of Educ., 391 U.S. 563, 574 (1968).

191 Bd. of Educ. v. Doyle, 429 U.S. 274, 283-84 (1977).

192 Connick v. Myers, 461 U.S. 138, 146 (1983).

193 Doyle, 429 U.S. at 287. Government scientists also may be protected against retaliation by federal and state due process guarantees. To state a due process claim, the scientist would have to show: 1) as a result of some state action in punishing the scientist for his research activities, the scientist was deprived of a liberty or property interest; and 2) the deprivation of that interest was done without adequate notice and a fair opportunity to be heard. See, e.g., Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538-47 (1985); Llano v. Berglund, 282 F.3d 1031, 1034-35 (8th Cir. 2002). But cf. Paul v. Davis, 424 U.S. 693, 711-12 (1976) (holding that an employee must suffer some alteration of a right or status, in addition to an injury to reputation, before a liberty interest will be recognized); Bd. of Regents v. Roth, 408 U.S. 564, 576 (1972) (holding that procedural due process does not apply to an interest or benefit absent a legitimate claim of entitlement rather than simply an abstract need or desire or unilateral expectation of receipt of an interest or benefit). Where the public employee has a protected interest that is deprived by the employer's action, the employee is entitled to oral or written notice of the charges against her, an explanation of the employer's evidence, and an opportunity to present her side of the story. Cleveland Bd. of Educ., 470 U.S. at 546. For environmental scientists who are members of university faculties, notions of academic freedom may provide additional protection of research and publication activities. See WILLIAM A. KAPLIN & BARBARA A. LEE, THE LAW OF HIGHER EDUCATION 312 (3d ed. 1995).

194 Connick, 461 U.S. at 147-48.

195 Id. at 146.

196 Id. at 154.

197 United States v. Natl Treasury Employees Union, 513 U.S. 454, 466 (1995).

198 Rankin v. McPherson, 483 U.S. 378, 386 n.11 (1987).

199 Quintessentially, employees speak on matters of public concern when they report dereliction of public duties, corruption, or threats to public health or safety. Cynthia, L. Estlund, Free Speech and Due Process in the Workplace, 71 IND. L.J. 101, 114 (1995)Google Scholar; see also Sanjour v. EPA, 56 F.3d 85, 91 (D.C. Cir. 1995) (characterizing speech by two EPA employees on current government environmental policies as perhaps the paradigmatic matter of public concern); Reuber v. Food Chemical News, Inc., 925 F.2d 703, 720 (4th Cir. 1991) (characterizing the issue of the carcinogenic effects of pesticides as a matter of immense public concern).

200 Rankin, 483 U.S. at 388; Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968). The state bears the burden of justifying the discharge on legitimate grounds. Rankin, 483 U.S. at 388.

201 See Natl Treasury Employees Union, 513 U.S. at 465-66, 468-70; Sanjour, 56 F.3d at 94.

202 Rankin, 483 U.S. at 388 (citing Pickering, 391 U.S. at 570-73). A public employer may also prevail by showing that it would have reached the same employment decision even in the absence of the protected speech. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977).

203 Natl Treasury Employees Union, 513 U.S. at 483 (OConner, J., concurring); Connick v. Myers, 461 U.S. 138, 152 (1983). For constitutional purposes, it does not matter if the employee's statement was true or false, although the veracity of the statement may affect the degree to which it interferes with the efficient operation of the employer's enterprise. Pickering, 391 U.S. at 570 n.3. Before disciplining an employee, the public employer must undertake a reasonable investigation into what the speech actually was and must in good faith believe the facts on which the employer purports to act. Waters v. Churchill, 511 U.S. 661, 677-78 (1994).

204 See Waters, 511 U.S. at 674; Pickering, 391 U.S. at 572; Sanjour, 56 F.3d at 94 (holding that depriving the public of EPA employees novel and valuable perspective would require a serious and carefully considered justification). The court in Sanjour held that where the regulatory scheme vests essentially unbridled discretion in the agency to make the determination of whether particular employee speech is permissible or not, there is a real and substantial threat of censorship that justifies further weighing the balancing in favor of the employee. Sanjour, 56 F.3d at 96-97.

205 Natl Treasury Employees Union, 513 U.S. at 468. The Government must show that the interests of both potential audiences and a vast group of present and future employees in a broad range of present and future expression are outweighed by that expression's necessary impact on the actual operation of the Government. Id. (quoting Pickering, 391 U.S. at 571); see also Hoover v. Morales, 164 F.3d 221, 227 (5th Cir. 1998) (holding that a university policy prohibiting professors from acting as consultants or expert witnesses on behalf of parties opposing the state was unconstitutional because it drew an impermissible distinction based on the content of the employee's speech).

206 See Doyle, 429 U.S. at 283-84; Pickering, 391 U.S. at 583-84. The First Amendment applies to actions by federal, state, and local government employers. See Near v. Minnesota ex rel. Olson, 283 U.S. 697, 707 (1931).

207 Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 937 (1982).

208 Blum v. Yaretsky, 457 U.S. 991, 1004 (1982).

209 Rendell-Baker v. Kohn, 457 U.S. 830, 840-41 (1982). Acts of such private contractors [whose business depends on contracts with the government] do not become acts of the government by reason of their significant or even total engagement in performing public contracts. Id. at 841.

210 Besides financial dependence, in determining if a decision of a private entity is fairly attributable to the state, the Court has considered the degree of state regulation of the private entity, whether the private entity performs a public function, and the symbiotic relationship between the entity and the government. Rendell-Baker, 457 U.S. at 841-43. These additional factors are not likely to be present in the relationship between non-governmental scientific research institutions and the government agencies that fund or otherwise oversee such research.

211 See, e.g., Kinney v. Weaver, 367 F.3d 337, 357-58 (5th Cir. 2004) (en banc); Worrell v. Henry, 219 F.3d 1197, 1209-13 (10th Cir. 2000); Helvey v. City of Maplewood, 154 F.3d 841, 844 (8th Cir. 1998); Korb v. Lehman, 919 F.2d 243, 248 (4th Cir. 1990).

212 Gertz v. Robert Welch, Inc., 418 U.S. 323, 345, 351 (1974). In addition to defamation allegations, scientists have repeatedly encountered threats relating to the enforcement of overly restrictive confidentiality clauses in sponsored research. See, e.g., supra notes 16-20 and accompanying text; Shuchman, supra note 17, at 343 (characterizing disputes over confidentiality agreements as relatively common). Where the research relates to risks to public health or the environment, institutions should review all research contracts and not allow confidentiality clauses that prohibit publication or other public disclosure of the data, except where there are legitimate intellectual property reasons. Karen, Young Kreeger & Paula, Park, When Corporations Pay for Research, 15 SCIENTIST 29 (2001)Google Scholar; Rennie, supra note 37, at 1241; Margaret, A. Somerville, A Postmodern Moral Tale: The Ethics of Research Relationships, 1 NATURE REVIEWS 316, 318 (2002)Google Scholar.

213 See, e.g., Reuber v. Food Chemical News, Inc., 925 F.2d 703, 709-10 (4th Cir. 1991); Faltas v. State Newspaper, 928 F. Supp. 637, 645-46 (D.S.C. 1996), affd., 155 F.3d 557 (4th Cir. 1998).

214 See, e.g., Steven Greenhouse, Cornell Professor Fights a Slander Suit, N.Y. TIMES, Apr. 1, 1998, at A14 (reporting that Cornell University Professor Kate Bronfenbrenner was very frightened and outraged by the defamation suit brought against her for testifying at a public hearing about her research).

215 For the same reasons, courts should be wary of finding that government researchers are public officials for defamation purposes. See supra notes 75, 84.

216 Professors George Pring and Penelope Canan define strategic lawsuits against public participation (SLAPP) as involv[ing] communications made to influence a governmental action or outcome, which, secondarily, resulted in (a) a civil complaint or counterclaim (b) filed against nongovernment individuals or organizations (NGOs) on (c) a substantive issue of some public interest or social significance. GEORGE W. PRING & PENELOPE CANAN, SLAPPS: GETTING SUED FOR SPEAKING OUT 8-9 (1996). A SLAPP suit typically develops when citizens communicate (to a government decision-maker) their views opposing someone else's plans and the opponent or target of those views seeks to silence or punish the citizens by filing suit. Id. at 10. In essence, SLAPP seeks to punish citizens for exercising their First Amendment rights to freedom of speech and to petition the government for redress of grievances. Id. at 10.

217 Id. at 143-87. SLAPPs, as lawsuits go, are losers. The vast majority are ultimately dismissed by the courts. The remainder are chiefly cases where targets (or their insurance companies) gave up and entered into dismissal settlements. George (Rock) Pring & Penelope A. Canan, SLAPPs: An Overview of the Practice, A.L.I.-A.B.A. CONTINUING LEGAL EDUC., Aug. 19, 1994, at 1, 12.

218 See, e.g., Robert A. Phillips & John Hoey, Constraints of Interest: Lessons at the Hospital for Sick Children, 159 CANADIAN MED. ASSN J. 955, 955 (Oct. 20, 1998) (noting the failure of Dr. Nancy Oliveri's employers to provide legal assistance when she was threatened by a research funder with legal action); Cathy Sears, Supreme Court Ruling Could Inhibit Debate in Journals, 4 SCIENTIST 1 (Oct. 1, 1990) (reporting that Professor Michael Salamon was originally told by the University of Utah that it would not defend him when another scientist at the University threatened him with legal action over a published study).

219 See, e.g., CAL. GOV't CODE 825 (West 2003); 5 ILL. COMP. STAT. 350/2 (2003).

220 AMERICAN ASSOCIATION OF UNIVERSITY PROFESSORS, Institutional Responsibility for Legal Demands on Faculty (1998), reprinted in AMERICAN ASSOCIATION OF UNIVERSITY PROFESSORS, POLICY DOCUMENTS & REPORTS 130 (9th ed. 2001).

221 See, e.g., JOHNS HOPKINS BLOOMBERG SCHOOL OF PUBLIC HEALTH, FACULTY RESEARCH BY TOPIC, at http://faculty.jhsph.edu/researchguide.cfm (last visited July 1, 2004); MASSACHUSETTS INSTITUTE OF TECHNOLOGY, MIT NEWS, at http://web.mit.edu/newsoffice/www/newsoffstaff.html (last visited July 1, 2004); see also Kevin, Oates, Professor Defend Thyself: The Failure of Universities to Defend and Indemnify Their Faculty, 39 WILLAMETTE L. REV. 1063 (2003)Google Scholar (arguing for the need for a presumption in favor of providing a defense and indemnity to professors who are sued for activities the professors believe are within the scope of their employment).

222 See Daniell, supra note 122 (arguing it is improper for an institution to fail to provide legal or advisory support when an employee is accused of misconduct while in good faith performing job duties); Glenn, Harlan Reynolds, Thank God for the Lawyers: Some Thoughts on the (Mis)Regulation of Scientific Misconduct, 66 TENN. L. REV. 801 (1999)Google Scholar (reviewing misconduct proceedings and concluding that lawyers were essential to ensure a fair proceeding); Slind-Flor, supra note 131, at 44 (reporting the conclusion of attorneys that, without legal counsel, an academic can suffer an erroneous scientific misconduct decision).

223 See Jock Friedly, ORI's Self Assessment: A Batting Average of .920?, 275 SCI. 1255, 1255 (Feb. 28, 1997) (reporting on a study by ORI finding that fewer than 5% of allegations of misconduct forwarded to ORI result in a final finding of scientific misconduct); see also Daniell, supra note 122, at S154 (It appears, therefore, that reported and confirmed incidents of misconduct in science are relatively rare.).

224 Sigma Xi, The Scientific Research Society, advises those entering careers in scientific research to make best efforts to discover the truth prior to whistleblowing and to not blow a whistle without very good grounds for doing so. SIGMA XI, THE SCIENTIFIC RESEARCH SOCIETY, HONOR IN SCIENCE 31-32 (1991).

225 As noted above, ORI's Whistleblower's Bill of Rights states that [w]histleblowers and other witnesses to possible research misconduct have a responsibility to raise their concerns honorably and with foundation. See supra note 138. However, federal regulations do not mandate any evidentiary support for an allegation. Some state whistleblower statutes do require an accuser to make a reasonable attempt to determine the accuracy of any information reported. Rutzel, supra note 172, at 20, 20 n.177 (citing IND. CODE ANN. 22-5-3-(3)(c) (1994) and OHIO REV. CODE ANN. 4113.51 (1994)).

226 UNIVERSITY OF ARIZONA, POLICY AND PROCEDURES FOR INVESTIGATIONS OF MISCONDUCT IN SCHOLARLY, CREATIVE, AND RESEARCH ACTIVITIES I.B.4, II.D (Apr. 4, 2003), available at http://fp.arizona.edu/senate/research_integrity_policy.htm.

227 UNIVERSITY OF SOUTH ALABAMA, FACULTY HANDBOOK 7.8 (Sept. 2003), available at http://www.southalabama.edu/academicaffairs/handbook.pdf.

228 UNIVERSITY OF MASSACHUSETTS MEDICAL CENTER, UNIVERSITY OF MASSACHUSETTS MEDICAL CENTER POLICY FOR RESPONDING TO ALLEGATIONS OF SCIENTIFIC MISCONDUCT IV.E (Mar. 19, 1998), available at http://www.umassp.edu/policy/scmisconductpol.html.

229 ORI PRIVILEGE, supra note 142.

230 Id.

231 Steinberg, supra note 144, at 102.

232 Id. at 102 n.377 (citing PROSSER AND KEETON, supra note 73, at 834-35).

233 RESTATEMENT (SECOND) OF TORTS, supra note 72, 603 cmt. a. The Restatement further explains: [I]f the publication is made for the purpose of protecting the interest in question, the fact that the publication is inspired in part by resentment or indignation at the supposed misconduct of the person defamed does not constitute an abuse of the privilege. Id.

234 Steinberg, supra note 144, at 101-03.

235 See 65 Fed. Reg. 76,260, 76,262 (Dec. 6, 2000) (explaining the failure of the federal policy on research misconduct to punish informants who act in bad faith). The Office of Science and Technology Policy explained that, although the federal policy would not punish bad faith whistleblowers, non-Federal institutions may adopt policies to address the consequences of false, malicious, or capricious allegations and to respond to retaliation against informants. Agencies may also address this issue in their implementation of this policy. Id.

236 ORI, ANALYSIS, supra note 140, at App. D. The University of Arizona's misconduct policy does define the making of false allegations or bringing of bad faith or malicious charges as misconduct that will be addressed under existing policies. UNIVERSITY OF ARIZONA, supra note 226, at I.B.9. The University of Massachusetts Medical Center's policy states that if an allegation was not made in good faith, the accuser may be subject to the same institutional administrative actions faced by those who engage in scientific misconduct. UNIVERSITY OF MASSACHUSETTS, supra note 228, at XI.D.

237 The Department of Interior's new draft Code of Scientific Conduct states that scientists involved in activities conducted or funded by the Department shall not hinder the scientific and information gathering activities of others. Press Release, U.S. Department of the Interior (May 30, 2003). Whether this draft provision will be interpreted to apply to bad faith allegations of misconduct and whether such bad faith actions will result in discipline is uncertain.

238 See supra note 168.

239 See, e.g., PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY, supra note 31 (detailing threats to wildlife biologists because of their work on grizzly bear populations); Hal Bernton, Inside Revolt Leads to Logging Halt, OREGONIAN, Feb. 28, 2000, at A1 (reporting on alleged retaliation by the U.S. Bureau of Land Management against a biologist because he informed fisheries officials that proposed timber sales appeared to violate federal environmental regulations); Letter from Eric Wingerter, National Field Director, Public Employees for Environmental Responsibility, to Trudy Harlow, U.S. Dep't of Interior (Mar. 26, 2001) (protesting the termination of a U.S. Geological Survey researcher because he posted a map on the agency's website showing caribou migration patterns).

240 16 U.S.C. 1531-44 (2000).

241 42 U.S.C. 4321-70f (2000).

242 N.L.R.B. v. Scrivener, 405 U.S. 117, 122-23 (1972).

243 See, e.g., Am. Nuclear Res., Inc. v. United States Dep't of Labor, 134 F.3d 1292, 1295 (6th Cir. 1998); Passaic Valley Sewerage Commrs v. United States Dep't of Labor, 992 F.2d 474, 478-79 (3d Cir. 1993); DeFord v. Secy of Labor, 700 F.2d 281, 286 (6th Cir. 1983).

244 KOHN, supra note 167, at 143 (quoting Egenrieder v. Metro. Edison Co./G.P.U., 85-ERA- 23 (Dept. of Labor Apr. 20, 1987)).

245 33 U.S.C. 1367(a) (2000). After passage of the [Water Pollution Control Act] whistleblower protection law, Congress passed six other environmental and nuclear whistleblower laws all modeled after the WPCA provision. KOHN, supra note 167, at 142 (citing the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. 9601 (2000), Energy Reorganization Act, 42 U.S.C. 5801 (2000), Solid Waste Disposal Act, 42 U.S.C. 6901 (2000), Toxic Substances Control Act, 15 U.S.C. 2601 (2000), Safe Drinking Water Act, 42 U.S.C. 201 (2000), and Water Pollution Control Act, 42 U.S.C. 1367 (2000)).

246 42 U.S.C. 5851(a)(1)(F) (2000); see also Stone & Webster Engg Corp. v. Herman, 115 F.3d 1568, 1575 (11th Cir. 1997) (noting that purpose is an open-ended word that should be broadly interpreted to protect employees).

247 42 U.S.C. 9610(a) (2000).

248 KOHN, supra note 167, at 144 (citing Chase v. Buncombe County, 85-SWD-4 (Dept. of Labor Nov. 3, 1986)).

249 Nathaniel v. Westinghouse Hanford Co., 91-SWD-2 (Dep't of Labor Feb. 1, 1995) (holding that whistleblower provisions protected employee where her actions touched on subjects regulated under the pertinent statutes), available at http://www.oalj.dol.gov/public/wblower/decsn/91swd02b.htm; Dodd v. Polysar Latex, 88-SWD-4, at 5 (Dep't of Labor Sept. 22, 1994) (Concerns such as these that touch on the environment and statutory compliance are protected.), available at http://www.oalj.dol.gov/public/wblower/decsn/88swd04b.htm.

250 An example of a professional code that addresses suppression is the Ecological Society of America's principles that all ecologists certified by the Society will not practice or condone harassment in any form in any professional context nor attempt to injure the reputation or professional opportunities of another scientist by false, biased, or undocumented claims, by offers of gifts or favors, or by any other malicious action. ECOLOGICAL SOCIETY OF AMERICA, CODE OF ETHICS, available at http://www.esa.org/aboutesa/governance/codeofethics.php (last updated June 6, 2004).

251 See, e.g., BLUM, supra note 109, at 175 (reporting that not only did no big science or medical society intervene in the Immuno AG. case to support the free speech rights of scientists and academic journals, but the National Association for Biomedical Research filed an amicus brief in support of Immuno AG. and against one of its members); Muzza Eaton, Scientific Freedom and Responsibility Activities of Scientific Societies, 5 SCI. TECH. & HUM. VALUES 24, 26 (Fall 1979) (reporting that, of the scientific societies who were requested to assist on issues of scientific freedom and responsibility, only one-third had boards or committees to investigate such problems and only one-quarter intervened to assist); Karen Young Kreeger, Industry Support of Societies Under Fire, 11 SCIENTIST 1 (June 23, 1997) (reporting on criticism of the American Thyroid Association for not taking up the cause of academic freedom when Professor Betty Dong was struggling to publish her research and on suggestions that the dependence of professional associations on industry money may explain their reluctance to get involved).

252 The American Association for the Advancement of Science argued in 1975 that increased activity by professional societies was the most hopeful approach in the immediate future to the problems of interference in scientific freedom and suppression of scientific data. Edsall, supra note 6, at 691. Similarly, Brian Martin argues that of greatest value to scientists under attack are support organizations, sympathetic media coverage, alternative employment opportunities, and a culture of dissent in which criticisms and debate are welcomed as healthy. Critics of Pesticides, supra note 13, at 48.

253 Many societies choose not to engage in enforcement, using their codes primarily for educational purposes. AMERICAN ASSOCIATION FOR THE ADVANCEMENT OF SCIENCE & U.S. OFFICE OF RESEARCH INTEGRITY, THE ROLE AND ACTIVITIES OF SCIENTIFIC SOCIETIES IN PROMOTING RESEARCH INTEGRITY 5 (Sept. 2000).

254 Eager for industry alliances and wary of legal battles, universities sometimes fail to support researchers who come into conflict with a corporate sponsor. Birch & Cohn, supra note 37 (citing the case of David Kern and Brown University).