We just ran across Bracco Diagnostics, Inc. v. Amersham Health, Inc., ___ F. Supp.2d ___, 2009 WL 1743699 (D.N.J. June 30, 2009). Yeah, we know, it’s over a month old — ancient by blawg standards. In our defense, all we can say is that it’s a Lanham Act case, and we pay more attention to the products area.
Anyway, the claim there was that the defendant violated the Lanham Act by causing the publication of supposedly untrue articles in the scientific literature, allegedly with the intent of improperly promoting its product to the detriment of the plaintiff competitor.
The court held that publication of scientific articles, even with the intent of making money as a result, is fully First Amendment protected speech, and not merely commercial speech carrying less protection.
Since we see plaintiffs make allegations about the publication of scientific articles fairly often in our line of work, we thought we’d pass along the best quotes:
The Court finds that there is an abundance of case law to support the proposition that a scientific article is protected noncommercial speech despite the potential for erroneous content.
2009 WL 1743699, at *47 (citations omitted) (these Lanham Act opinions are long).
[T]he Supreme Court’s broadest definition for commercial speech is an “expression related solely to the economic interests of the speaker and its audience.” In this case, none of the scientific articles in question meet that definition. The  article was published by the New England Journal of Medicine (“NEJM”), a widely renowned medical journal published for educational purposes and for the benefit of the medical field. This simply does not fit the definition of a representation that is solely related to economic interests.
Id. at *48 (citation omitted).
(1) the NEJM’s main focus is for an educational purpose, which falls far short of the “solely commercial” requirement; (2) [the article] was not published by a defendant in commercial competition. Despite the fact that Defendants sponsored the research for the article, they did not author it. . . . (3) its publication was not commercial because it did not advocate that the reader purchase a particular product over another, even though it did come to specific scientific conclusions about which products . . . were better suited for certain medical purposes; and (4) although it was widely disseminated in the NEJM’s distribution pool, it is a protected form of speech, distributed by an impartial educational journal in the field of medicine.
[T]he Court finds that it would be inappropriate to “inquire into the validity of scientific theories” which are not commercial speech and promulgated in scientific journals. Thus, it declines to do so today. . . . The conclusion we reach here is supported by a consideration of the chilling effect on speech in the academic and non-profit context that could be the result of allowing actions such as this to proceed.
Id. at *48-49 (citations and quotation marks omitted).
Now, to be clear, this speaks only to the initial publication of a scientific article in the scientific journal — not what the defendant might have done with an article after it was published.
Still, we’re sick and tired of plaintiffs alleging “you ghostwrote this” or “the article misrepresented the data.” We’re pleased to find a decision saying that the publication of scientific articles, per se, is protected by the right of free speech and can’t be the basis for a lawsuit. We don’t think courtrooms should be places where one side of a scientific debate seeks to sue the other side into silence.