Friday, September 18, 2009
Ghostbusting and the First Amendment
Congress is showing increasing concern over the practice of pharmaco-funded ghostwriting of medical articles, on which doctors and others rely in assessing the costs and benefits of various treatments. Given the constitutional protection of anonymous/pseudonymous speech, does congressional involvement in "ghostbusting," or ferreting out ghostwritten articles, raise free speech issues? If you want to allow Congress to act, is it because the interest in disclosure is substantial, or because this is really commercial speech in disguise?
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4 comments:
Primarily because the disclosure interest is substantial, I think, but it is really commercial speech in disguise. I'm wondering what effect the Hillary movie case will have on this sort of stuff, particularly if the Court gives full First Amendment rights to corporations.
You could argue that the problem isn't lack of disclosure of an anonymous author, but the false disclosure of other authors. There's no "This is written by an anonymous person!" disclosure. So maybe it's a falsity issue.
I'm employed in the industry that does the ghostwriting, and this has been a controversy for several years now. Most journals in the STM market have stringent disclosure and conflict-of-interest rules, but from the NYT article, it seems that author groups are getting around it by simply not listing as an author a writer/editor/ghostwriter who does have a conflict of interest.
I'd argue that medical editors play an important role in ensuring clarity of data, but the line between editing and authorship is growing increasingly hard to define. At issue is the fact that many of these coauthors (authors in the sense that they help design the study and then interpret the data) are not trained in the discipline they're working in—they may have a PhD in English or statistics instead of pharmacology or medicine. Sometimes a busy lead investigator will hand an editor a data set, and the editor, whose name appears nowhere on the paper, will craft the info into a publishable document that the lead investigator signs off on. Often the editor's services are paid for by a line in the grant that funds the research.
I'd argue that such contributions are important, but I do wish the busy lead investigator weren't quite so busy and could do his own darn writing. Editors who do this kind of work ought to get authorship credit, but I doubt that will start happening anytime soon, even if journals like PLoS or NEJM suddenly start policing and ghostbusting.
I look at this more from the Ex rel. Madigan viewpoint: As the Court noted, speech in furtherance of a scheme to defraud is not speech protected by the First Amendment. Admittedly, that just shifts the question to whether this constitutes a scheme to defraud... which is a fact-intensive, not policy/principle intensive, inquiry.
It also raises some interesting issues concerning false designation of origin. There's a huge difference between anonymous/pseudonymous speech and misattributed speech; this is only made more complex if one considers the researchers to be merely "ratifying" the anonymous/pseudonymous speech. I don't pretend that it's an easy question, and ultimately I think that's the point: Everyone appears to be looking for an easy, bright-line answer.
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