Freedom of Speech For Scientists?
I would like to consider what constrains, if any, scientists have in announcing “new” findings. In particular, what constraints are there when the public pronouncements are on issues that could have important regulatory or political impacts?
I am not referring to the normal avenue of scientific endeavor. I am concerned about when science provides new and seemingly conclusive determination of the “reason” for the occurrence of an episode. This seems to be miraculously broadcast across the UK Daily Mail and lead to millions of people to change their buying habits and all too often these days for a politician to call for the banning of the substance in question.
Simply put, is there a limit on the freedom of speech that a scientist has before they pronounce to the Daily Mail that something should be banned immediately?
After having spent a few years of my life as a researcher at university, although in the softer discipline of law, I would contend that there a standard of ethics that needs to maintained in the journey of discovering “truth”.
Richard Feynman – An Ideal
An ideal of course is to live up to the standards and integrity of Richard Feynman. He described that scientific standard as:
“It’s a kind of scientific integrity, a principle of scientific thought that corresponds to a kind of utter honesty—a kind of leaning over backwards. For example, if you’re doing an experiment, you should report everything that you think might make it invalid—not only what you think is right about it; other causes that could possibly explain your results; and things you’ve thought of that you’ve eliminated by some other experiment, and how they worked—to make sure the other fellow can tell they’ve been eliminated.”
This ideal would be excellent if it were easy to follow. It is not. I have discovered that there are several books on the violation of the “scientific method”. I remember coming across it when the press ran with the news of the discovery of cold fusion in 1993. I remember it well as a good friends dad used to head CERN and the news was bad for his blood pressure. The discovery was a hoax.
Why is Science Important for Regulators and Politicians?
I have encountered the importance of science in my work in law making – working for politicians and for regulators.
You may be surprised to hear that science has an important role in the work of politicians and regulators. Scientific evidence is not, as a general rule, conjured out of thin air, to support a position, whatever impression some politicians may give you!
That said, I do not discount the possibility, that sometimes evidence is not what it may seem to be, and if anyone looked at the original research supporting the claims, you’ll find nothing to support a position.
Sound Science Postponed
I first came across the issue in 1997. I was working on the issue of air pollution and the use of lead. I was working on the first EU wide clean air law. It covered several substances including lead.
Now, what surprised me at the time, and to this day, is that incidences of harmful affects of lead in the air had been rapidly reducing throughout what was then the EU of 15 countries.
Indeed, the particular problem seemed to be focused on a few places in Europe where lead plants operated. There seemed to be children could ingest a chance that lead in the soil. When I asked who these children where, I learnt that there appeared to be a group of children who were eating large amounts of soil that were polluted with lead.
That these places were all in relatively hard to get to industrial zones did not disturb anyone and no evidence of any children being sighted eating soil did not stop restrictions being introduced.
Now, the Lead Industry did not dispute the claims about the health effects of lead. They pointed out that the levels at which any harm could arise were in reality very unlikely to occur unless of course you eat a full handful of polluted soil each day for a year. But, when I moved to the European Commission, I was surprised to find senior officials using the air pollution restrictions on lead in air as the basis for banning lead in about almost anything product that existed. By a twist of irony, I faced the issue a few years later, dealing with the RoHS Directive.
In the case of the clean air act, regulators took the science, and the hazard determination science came up with, and then acting as risk regulators came to a risk assessment that backed the phase out of lead. I may surprise some scientists that we really do take this “evidence” and use it to ban substances. And, as a regulator/politician, it is important that there is no doubt that the case against a substance is clear.
Precautionary Principle Effect
And, to this day, it always concerns me if a regulator bans a substance despite the science. The best one can hope for is a call from the official that “science is not the reason”, and often instead, an onslaught from the Daily Mail and political pressure. It is for this reason, one should be careful about how science is used, or in hands of the Daily Mail, abused.
Criticism of and actions directed at substances and products in Europe are now based on the precautionary principle. As Cass Sunstein see it:
The Precautionary Principle takes many forms. But in all of them, the animating idea is that regulators should take steps to protect against potential harms, even if causal chains are unclear and even if we do know that those harms will come to fruition.
Now, the science has a more important role. It solves problems of causation, and can even answer the unknown. Importantly, regulators and politicians are ill equipped to scrutinize the science, and often they are very differential to it. In large part that deference is due to ignorance, as most politicians have little background in the science. So, this leads to politicians deferring to science on evidential questions, exercising little scrutiny, and only seeing their role as limited to determining what actions are needed to deal with any risk.
What is the Scientific Method for Lawyers?
It is useful to look at how lawyers look at science. Many politicians and regulators are lawyers, and are likely to share a similar outlook to the Courts. Second, lawyers, by their training, are often ill equipped to decide whether science is valid or not. If science is meant to be the “truth”, there can only be one “truth”, and law reaches truth by a process of rigorous cross-examination.
The US Supreme Court considered the issue of the “scientific method” in Daubert v. Merrell Dow Pharmaceuticals, Inc. US Supreme Court, 1993.
The Supreme Court considered that:
“Science is not an encyclopedic body of knowledge about the universe. Instead, it represents a process for proposing and refining theoretical explanations about the world that are subject to further testing and refinement.”
Daubert v. Merrell Dow Pharmaceuticals, Inc. US Supreme Court, 1993.
This judgment provides guidance on what scientific expert evidence should be:
1. The theoretical underpinnings of the methods must yield testable predictions by means of which the theory could be falsified.
2.The methods should preferably be published in a peer-reviewed journal.
3.There should be a known rate of error that can be used in evaluating the
4.The methods should be generally accepted within the relevant scientific
Meanwhile, in Europe, our own European Court is more reluctant to intervene in matters of science. The European Court is very reluctant to intervene in the deliberations of the EU’s institutions and their experts in reviewing scientific issues.
In Case T, 95/10, concerning the designation of anthracite oil as a substance of very which concern, the decision of ECHA and the Commission were challenged by a group of producer companies
The Court repeated it often used reasoning:
105 As a preliminary point, it should be pointed out that, in accordance with settled case-law, where the European Union authorities have a broad discretion, in particular as to the assessment of highly complex scientific and technical facts in order to determine the nature and scope of the measures which they adopt, review by the European Union judicature is limited to verifying whether there has been a manifest error of assessment or a misuse of powers, or whether those authorities have manifestly exceeded the limits of their discretion. In such a context, the European Union judicature cannot substitute its assessment of scientific and technical facts for that of the institutions on which alone the FEU Treaty has placed that task (Case C‑15/10 Etimine  ECR I-0000, paragraph 60).
106 Nevertheless, it must be stated that the broad discretion of the authorities of the European Union, which implies limited judicial review of its exercise, applies not only to the nature and scope of the measures to be taken but also, to some extent, to the finding of the basic facts. However, even though such judicial review is of limited scope, it requires that the European Union institutions which have adopted the act in question must be able to show before the Union judicature that in adopting the act they actually exercised their discretion, which presupposes the taking into consideration of all the relevant factors and circumstances of the situation the act was intended to regulate (Case C-343/09 Afton Chemical  ECR I-7023, paragraphs 33 and 34).
Here, the European Court, shows itself reluctant in the extreme to intervene, and considers that the weighing up of evidence is a role for the legislature and regulator.
However, the Court does put some limits on the legislature and regulator, and requires that they take into account ‘all relevant factors’. One could conclude that a ban on a substance based on no evidence at all could be challenged and succeed; but that a ban on a substance based unscientific evidence that is disputed would be permissiable.
The Duty of Care
The UK organization, Sense About Science, outlines the safeguards it believes that should be in science:
“Control groups and statistical analysis are used to show that apparent causes and effects are areal and not a matter of coincidence. Findings must be published openly, with full data and working; so that others can pick them apart. Research is accepted for publication only after it has been peer-reviewed, to guard against sloppy errors and misinterpretation of data, and it is not considered robust and well founded until it has been independently replicated. Through adherence to these stairs, scientists acquire the habit of questioning the evidence for their beliefs and taking note of contradictory data. They know that if they don’t, their rivals most assuredly will”.
A Special Duty of Care
However, is it right that there should be a special duty of care when science is active in heavily regulated arenas where scientists know that new evidence could have important impacts.
Science provides the important elements of the evidence to help to take a decision. It is key that the “science” is objective. It should have purity to it and only reflect that “purity of thought” that signs a light on some key scientific question. If the evidence is not objective, the system starts to fall down.
The Need for higher thresholds and how to do it – The Case Study of Air
Those questions I have asked scientists to answer are many.
In 1997 I wanted to know if Particulate Matter 2.5 caused damage our respiratory systems, in particular for vulnerable groups like the very old, young and asthmatics. At the time, I was not asthmatic.
At the time, scientists were working on answering just that question. At the time I was looking at the issue, way back in 1997, there was a suspicion that PM 2.5, ultra-fine particulate matter, often coming from road transport, was the “casual link” between elevated levels of air pollution and health impacts.
At the time we did not know. Just a few years, in 2009 later, research undertaken by the US based Health Effects Institute, published the results of a mammoth peer review of studies that indicated increased mortality and elevated levels of air pollution, in particular PM 2.5.
As an aside, it seemed speaking with research scientists fro, the US chemical warfare unit, that they did know about the particular qualities of PM 2.5 and had done so for some time.
The review of the original science did not happen by accident. The study had an important influence on the debate in the US on adopting new and tighter air pollution standards. The costs of adopting those standards on the basis of faulty evidence would concern all sides. Before spending tens of billions of dollars you need to be sure that what you are targeting is important.
Even environmentalists would be concerned that if decisions are adopted on inaccurate evidence, which is later, shown to be manifestly faulty, the likelihood is that the measure upon which it is adopted is repealed, and public support weakens for that cause. Of course, the direct costs for adopting tighter standards on the man made sources of air pollution, in particular, transport emissions, power generation, domestic heating units, are colossal, and likely to be in the billions of dollars to adopt.
The background of the case is important. As HEI state:
The American Cancer Society (ACS) Cancer Prevention Study II (CPS-II), a large ongoing prospective study of mortality in adults initiated in 1982, was one of two U.S. cohort studies central to the 1997 debate on the National Ambient Air Quality Standard (NAAQS) for fine particulate air pollution in the United States. Because of the high importance of the original ACS study in formulating regulations and the controversy generated by the limitations of that study, the U.S. Environmental Protection Agency (U.S. EPA), the Congress, and industry requested that the Health Effects Institute conduct the Particle Epidemiology Reanalysis Project with the objective of independently and rigorously assessing the original data and findings.
A great deal of concern was expressed that the original data for the study, a cohort study of over 500,000 people over decades, led to many questions being asked. H
However, the original authors saw the publication of their original report, without the raw data, as sufficient. They could not understand why others would want to scrutinize their actual hard data. But, the should not have been surprised that when tens of billions of dollars were at stake, regulators, politicians, industry and the public would want to be able to scrutinize and review the data.
HEI are independent of outside influence. The first Chairman, Archibald Cox, who started the impeachment of President Richard Nixon, helped ensure that no outside pressure could influence them. This is an organization established to undertake a “peer review from hell” of the science on key issues of public policy in the area of air pollution. Their review leads to better science. It helps policy makers make better decisions. I suppose ECHA is meant to do this process in Europe, and it would be interesting to know if it does.
Interestingly, the results of the findings have also been vindicated in other large-scale research projects. And, regulation has been alerted to target, measure and restrict the ultra-fine particulate matter 2.5.
Now, whilst many in Europe wanted the HEI to set up in the EU, there was opposition from some like the JRC. But, it is clear to me that in science deserves and needs to be subject to the rigorous review by experts on those matters that have important impacts.
Now, the history of the regulation provides of CFCs provides valuable lessons. In 1974 Sherry Rowland and Mario Molina from the University of Californian at Irvine, published research that the human-generated chlorofluorocarbons (CFCs) could cause serious harm to Earth’s protective ozone layer. IN 1995, The Nobel Prize in Chemistry 1995 was awarded jointly to Paul J. Crutzen, Mario J. Molina and F. Sherwood Rowland “for their work in atmospheric chemistry, particularly concerning the formation and decomposition of ozone”.
It took Europe and the world several years before they introduced restrictions against CFCs, in large part because the original research was attacked.
Conclusion – How To Ensure High Ethics – The Pursuit of Knowledge
Of course, the ideal is to emulate Richard Feynman, and have a generation of scientists who are as happy to admit that 20 years of their research is wrong when a graduate researcher is unable to repeat your findings, and be happy that “scientific truth” has developed.
It is interesting reading David Goodstein’s (Caltech), looked at so called cases of scientific fraud. At Caltech he taught a course on “scientific ethics”, and he prepared Caltech’s first policy on research misconduct, that pre-dates Federal government actions in the area.
Goodstein sees it clearly:
“Fraud sounds a tough word. It is a violation of the scientific method.”
It would be interesting to know of such cases in Europe.
In conclusion the best hope for the preservation of the scientific method is scientists belief in and practice of the scientific method.
That said the next means of oversight are readily available. They start at peer review.
The first barrier of defense of science remains peer review. I found peer review to be an excellent, if somewhat painful and exhausting, process. It tested the evidence, tightened it when needed, even sending me back to the drawing board. The result are a few publications on the finer, others would say obscurer, points of European Environmental Product Regulation, but better pieces of research none-the less.
It remains with the peer review panel to weed out the trash and return it back with, if possible, helpful comments.
But, I hear that even this gate cannot protect all journals from an onslaught of poor scripts. Some are likely to be accepted, and gain credence from publication.
Letters to the editor
Whilst some papers may be, how should this politely be said, “nonsense”, they will remain as undiscovered gems of ignorance masquerading as “new science” unless scientists who know better first write to the editor and point out the gaps, however glaring those gaps may be.
And, if the letter is not published, and the new research is too important, an open attempt to replicate the study and results can be found. If the results cannot be replicated, the scientific world deserves to know.
A Word of Caution
There may be a desire from some quarters to use “lawyers” to subdue publications. Scientists, like anyone, are subject to the same laws of a country, as are anyone else. Fraud, misrepresentation and libel are all blunt instruments that are available to challenge opponents.
I do not favour the use of going to law to resolve scientific debate.
I do so for two reasons. First, the scientific method is about open enquiry. If people want to publish nonsense, I think that they should be able to do so.
Second, the safeguards are there to preserve the scientific method. Those who seek to step outside the ethics of the scientific method, and who are discovered, the consequences have induced:
- Withdrawal of publication
Even as a lawyer, I do not commend the actions of fraud or libel. I believe that they leave a chilling impact on scientific debate and learning.
The existing tools of peer review are the most effective. Enhanced peer review, such as that provided by the US Health Effects Instituted, provides what has been described to me as “peer review from hell”.
The prospect of professional ridicule and obscurity should be enough to control excesses.
As Goodstein puts it:
Here lays strongest weapon. New and good research, however implausible, can and is replicated, such as the to high-temperature superconductivity, a phenomenon that the best theoretical work had seemingly ruled out, but that turned out nevertheless to be real. It’s living proof that nature likely has endless surprises for us and a cautionary reminder that we shouldn’t always pay too much attention to the received wisdom.