William & Mary Bill of Rights Journal Volume 4 (1995-1996) Issue 2 Article 4 February 1995 Monkey Trials: Science, Defamation, and the Suppression of Dissent Michael Kent Curtis Follow this and additional works at: https://scholarship.law.wm.edu/wmborj Part of the Constitutional Law Commons Repository Citation Michael Kent Curtis, Monkey Trials: Science, Defamation, and the Suppression of Dissent, 4 Wm. & Mary Bill Rts. J. 507 (1995), https://scholarship.law.wm.edu/wmborj/vol4/iss2/4 Copyright c 1995 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/wmborj MONKEY TRIALS: SCIENCE, DEFAMATION, AND THE SUPPRESSION OF DISSENT Michael Kent Curtis* In 1992, Rolling Stone magazine published "The Origin of AIDS. ?" The article explored a controversial and unconfirmed theory that the AIDS epidemic had been an inadvertent result of a polio vaccine trial conducted in Africa in the late 1950s. The researcher who conducted the African trials discussed by Rolling Stone sued the magazine for libel. He alleged that the article should be interpreted as asserting that he had caused the epidemic, that the AIDS-polio vaccine theory was false, and that it defamed him. Monkey Trials explores the controversial theory of the origin of AIDS and considers whether discussion (or advocacy) of such a hypothesis should be protect- ed by guarantees of free speech and press. It concludes that such complex criticism should be entitled to heightened protection, at least in those cases where the criti- cism is alleged to defame people with extraordinarypower to shape the world in which we live. A broad, objective, and powerful rule is required to protect "com- plex criticism" because of its contribution to understanding (even when it is mistak- en), and because complex criticism is often of great importance in setting the polit- ical agenda. [I]n many areas which are at the center of public debate "truth" is not a readily identifiable concept, and putting to the pre-existing prejudices of a jury the determination of what is "true" may effectively institute a system of censor- ship. Any nation which counts the Scopes trial as part of its heritage cannot so readily expose ideas to sanctions on a jury finding of falsity. Time, Inc. v. Hill, 385 U.S. 374, 406 (1967) (Harlan, J., concurring). Professor of Law, Wake Forest University School of Law. I wish to thank David Anderson, William W. Van Alstyne, Dr. Cecil H. Fox, Alan Palmiter, Miles Foy, David Logan, Ronald Wright, Stephen Heyman, Tom Curtis, Edward J. Imwinkelried, Brian Martin, and my research assistants, Paul Goodson, Mark Leach, and John Hughes, for their assistance and comments on an earlier draft of this Article. I wish to thank John Perkins for his help in locating sources. Views expressed here are merely my own and do not represent those of any other person or institution. Mistakes and misconceptions are entirely my own. WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 4:2 Change in any complex system ultimately depends on the ability of outsiders to challenge accepted views and the reigning institutions. American Booksellers Ass'n, Inc. v. Hudnut, 771 F.2d 323, 332 (7th Cir. 1985) (Easterbrook, J.). TABLE OF CONTENTS I. A SCIENTIFIC HYPOTHESIS MEETS DEFAMATION LAW ..... A. A Rolling Stone Article: "The Origin of AIDS ... ?". ....509 B. Scientific Reaction ................... .......... 515 C. To Test Or Not To Test ............... .......... 523 D. The Libel Suit ...................... .......... 526 E. Publication of the Elswood & Stricker Article ...... 530 .... F. The Science Defamation Conundrum ...... .......... 531 II. HYPOTHESIS AND SCIENTIFIC DISCUSSION AS DEFAMATION ......................... .......... 534 A. The Rolling Stone Article .............. .......... 534 B. The Alar Controversy ................. .......... 535 C. The Journal of Medical Primatology Article .......... 538 III. CONFLICTING VALUES: FREE SPEECH, SCIENCE, AND DEFAMATION ...................... A. Defamation and Free Speech: The Nature of the Interests Involved ............................... 539 B. Libel Versus Free Speech: Historic Battles ............ 545 C. Current Status of the Public Figure Test ............. 551 D. Problems Bred by the Public Figure Test ............. 557 1. Strategic Use of Libel Lawsuits to Chill Speech ...... 557 2. Continued Influence of the Chilling Effect .......... 563 3. Lack of Bright-Line Rules Breeds Litigation ........ 564 IV. PROPOSED REFORMS .............................. 565 A. ExtraordinaryPower or Influence Should Make a Person a Public Figure ................................ 565 B. Additional Protectionfor Hypotheses That Prove False and for Similar Complex Criticism .................. 567 1. The Court Currently Grants No Separate Constitutional Protectionfor Opinion ....................... 567 2. Additional Protection Is Needed for Some Ideas that May Prove False In Discussion of Complex Questions . 568 3. The Value of the Hypothesis that Proves False ...... 571 4. Dangers of the Judicially Decreed Falsity of Hypotheses ............................. 576 19951 MONKEY TRIALS 5. A Rational Basis Test Proposed ................. 578 6. Application of the Rational Basis Test ............ 585 7. The Ideal Meets the Real World ................. 589 C. Should We Protect Science from Discussion of Unorthodox Ideas in the Lay Press? ......................... 590 V. CONCLUSION .................................... 593 I. A SCIENTIFIC HYPOTHESIS MEETS DEFAMATION LAW A. A Rolling Stone Article: The Origin of AIDS... ? In March 1992, Rolling Stone magazine published an article entitled The Origin of AIDS: A Startling New Theory Attempts to Answer the Question 'Was It an Act of God or an Act of Man?" In the article, free-lance jour- nalist Tom Curtis (who is my brother) reported on a little-known "theory" that suggests a possible link between the AIDS epidemic and early polio vaccines. The theory reported by Tom Curtis had initially been developed by Blaine Elswood' and, unbeknown to Tom Curtis, had been developed independently by Louis Pascal.' Elswood was an AIDS activist with a lib- eral arts background who had published several scientific papers related to the disease. Pascal is also an independent researcher outside the scientific establishment. Neither, apparently, was a scientist by profession. Taken literally neither Elswood nor the Rolling Stone article claimed that the AIDS/polio vaccine link was proved. Instead they insisted that the theory raised serious questions, that attempted refutations were not convincing, and that the theory might well be true. Prior to the publication of the Rolling Stone article, a possible link between AIDS and polio vaccines had been Tom Curtis, The Origin of AIDS: A Startling New Theory Attempts to Answer the Question 'Was It an Act of God or an Act of Man?', ROLLING STONE, Mar. 19, 1992, at 54. Prior to the Rolling Stone article, scientists had raised, more or less directly, and sometimes discounted, the possibility of an AIDS-polio vaccine link. See, e.g., Sergio Giunta, The Primate Trade and the Origin of AIDS Viruses, 329 NATURE 22 (1991); G. Lectasas, Origin of AIDS, 351 NATURE 262 (1991); Herbert Ratner, Monkey Viruses, AIDS, and the Salk Vaccine, 20 CHILD & FAM. 134-38 (1988); J. Seale, Crossing the Species Barrier-Virusesand the Origins of AIDS in Perspective, 82 J. ROYAL SOC. OF MED. 519 (1989); Arie J. Zuckerman, AIDS in Primates,292 BRIT. MED. J. 158 (1986). For a related theory, see Charles Gilks, AIDS, Monkeys and Malaria, 354 NATURE 262 (1991). See Curtis, supra note 1, at 54, 56. See Louis PASCAL, WHAT HAPPENS WHEN SCIENCE GOES BAD: THE CORRUP- TION OF SCIENCE AND THE ORIGIN OF AIDS: A STUDY IN SPONTANEOUS GENERATION 5-11 (University of Wollongong Science and Technology Analysis Research Programme Working Paper No. 9, 1991). 510 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 4:2 briefly mentioned several times and sometimes discounted in the scientific literature.4 In a nutshell (which is where some critics implied the theory came from), the hypothesis suggested that a monkey virus had caused the AIDS epidemic by infecting people in central Africa. The hypothesis suggested that the transmission occurred as a result of the administration of a polio vaccine that had been inadvertently contaminated by a monkey virus. The hypothesis suggested that contamination could have occurred because of the use of monkey kidneys to manufacture polio vaccine.' In the African inocu- lation hypothesized as a link to AIDS, the vaccine had been given to more than 300,000 people from 1957 to 1960.6 The theory suggested that a possi- ble medical calamity had accompanied the great public health triumph against polio.7 Most commentators in the scientific community reacted to the hypothe- sis with disdain. They dismissed both the hypothesis and any suggestion that it be empirically tested. The hypothesis encountered more than a scientific snub, however. The researcher 8 who had conducted the polio vaccine trials sued Rolling Stone and Tom Curtis for defamation.9 Although the suit was settled, it continues to cast a pall over scientific discussion of the topic. The legal logic that encourages such actions threatens to undermine the tolerance and open debate that are essential both to science and to political freedom. 4 See supra note 1; infra note 31. The African polio vaccine was administered orally by means of "squirting the vaccine.., into the mouths of recipients." REPORT FROM THE