Academic Freedom v. Legal Threats

Legal threats to suppress publication of research could impede scientific progress, say USF professors.

 

By Mary Beth Erskine

USF.edu News Writer

 

TAMPA, Fla. (July 13, 2010) – As USF professors Norman Poythress and John Petrila see it, using legal threats to prevent controversial research from being published “constitutes a serious threat to academic freedom and potentially to scientific progress.”

And while they admit that “real” threats are indeed few, they point to a recent case centered on a research paper critical of a rating scale frequently used in criminal courts to support expert testimony about risk for future offending. Publication of the paper was delayed for three years when legal action was threatened against the publication.

The case received little attention as it was playing out until this spring when Poythress and Petrila, from the University of South Florida’s Department of Mental Health Law and Policy in the College of Behavioral and Community Sciences, brought it into the international spotlight.

The Psychopathy Checklist–Revised (PCL-R) is a widely accepted assessment tool for diagnosing psychopathy and a person’s projected future risk for violence. Used worldwide in countless, high-stakes legal proceedings, including death penalty cases, indeterminate confinement and sexual offender hearings, it was the subject of a controversial paper written by two leading psychology and law researchers. The paper was peer-reviewed, accepted and slated for publication in 2007 by the American Psychological Association (APA).

Before it was published, however, the forensic psychologist who developed the PCL-R tool, Robert Hare of the University of British Columbia, Vancouver, saw a draft of the article and threatened legal action against the researchers, Jennifer Skeem and David Cooke. In response, the APA withdrew the article from publication in its journal, Psychological Assessment, and convened an extraordinary review process to re-examine the submission.

Combining their expertise and complementary perspectives, Poythress, a forensic psychologist, and Petrila, an attorney, collaborated on a commentary that appeared in the May 2010 issue of International Journal of Forensic Mental Health. Their paper describes the sequence of events and focuses on the potential consequences, concluding that, “The use of threats of litigation to suppress the publication of articles accepted for publication in scientific journals strike at the heart of the peer review process, may have a chilling effect on the values at the core of academic freedom, and may potentially impede the scientific testing of various theories, models and products.”

Media, including Science and Scientific American, acknowledged the USF researchers for bringing the critical issue to the forefront. Their commentary was also featured in The Chronicle of Higher Education, and prompted a story about the threat to sue in The New York Times.

"The threat of civil litigation against researchers is a relevant concern for the broader scientific community,” said Roger Peters, professor and chair of USF’s Department of Mental Health Law and Policy. “Through analysis of the recent threats against psychological scholars, Petrila and Poythress' article highlights several important consequences of such litigation on the peer review and heuristic process."

 

Colleagues for more than 25 years, Poythress and Petrila believed that a commentary on the case was best written from the joint perspective of a forensic psychologist and an attorney because the topic demanded both areas of expertise. “It was important to get the tone of this paper right,” said Petrila, “and this was more easily achieved through a collaboration.”

Petrila and Poythress said that in addition to the issues surrounding academic freedom, they were concerned about raising awareness of the threats to sue among two specific groups involved with the psychopathy assessment tool, itself.

“First, other researchers who might be doing work with or about the PCL-R would want to know that critical comment by other investigators had resulted in a threat to sue and the associated costs of dealing with prospective litigation,” said Poythress. “And second, forensic clinicians who use the PCL-R as a basis for expert opinions in court would likely be interested knowing that the threat to sue opens new lines of cross-examination that challenge the use of the instrument in court.

“Our commentary alerted both groups to potential risk of continuing to do certain types of work involving the PCL-R.”

Poythress has used the PCL-R, himself, both clinically and in research. A clinical psychologist and expert in forensic assessment and psychopathy, he said clinical and research tools, no matter how widely accepted, are never perfect. “New conceptualization of clinical constructs and new research findings often provide the impetus for questioning the status quo and considering revisions to the tools and measures that we use.”

In their commentary, Poythress and Petrila wrote that, “Academic freedom rests on the premise that advances in science can only occur if scholars are permitted to pursue free competition among ideas. This assumes that scholars have the liberty to do their work free from limitations imposed by political or religious pressure or by economic reprisals."

In other words, to carry out the fundamental mission of a university.

The initial article was published in the June issue of Psychological Assessment.

Mary Beth Erskine can be reached at 813-974-6993.