The Faculty Lounge

Taboo Trades Podcast: Truth Bounties with Mike Gilbert and Yonathan Arbel

My guests today are my UVA Law colleague, Mike Gilbert, and University of Alabama Professor, Yonathan Arbel. We’re discussing their paper, Truth Bounties: A Market Solution to Fake News, forthcoming in the University of North Carolina Law Review.

 

Mike Gilbert is the vice dean and a Professor of Law at the University of Virginia School of Law. He teaches courses on election law, legislation, and law and economics, and his current research focuses on misinformation, corruption, and the role of “prosocial” preferences such as empathy in law. 

 

Yonathan Arbel is an Associate Professor of Law at the University of Alabama School of Law. His work focuses on commercial, consumer, and private law; and his methodology combines doctrinal, economic, and socio-legal analysis. 

 

 

Further Reading:

Truth Bounties: A Market Solution to Fake News

Slicing Defamation by Contract by Yonathan Arbel

How Do You Stop Fake News? Guarantee the Truth

Carlill v Carbolic Smoke Ball Co

Michael Gilbert Bio, UVA Law

Yonathan Arbel Bio, University of Alabama Law

 

 

The Ethics of Punking the Diet-Research Media Complex (and Millions of Readers)

A remarkable new “sting” of the "diet research-media complex" was just revealed. It tells us little we didn’t already know and has potentially caused a fair amount of damage, spread across millions of people. It does, however, offer an opportunity to explore the importance of prospective group review of non-consensual human subjects research—and the limits of IRBs applying the Common Rule in serving that function in contexts like this.

Journalist John Bohannon, two German reporters, a doctor and a statistician recruited 16 German subjects through Facebook into a three-week randomized controlled trial of diet and weight loss. One-third were told to follow a low-carb diet, one-third were told to cut carbs but add 1.5 ounces of dark chocolate (about 230 calories) per day, and one-third served as control subjects and were told to make no changes to their current diet. They were all given questionnaires and blood tests in advance to ensure they didn't have diabetes, eating disorders, or other conditions that would make the study dangerous for them, and these tests were repeated after the study. They were each paid 150 Euros (~$163) for their trouble.

But it turns out that Bohannon, the good doctor (who had written a book about dietary pseudoscience), and their colleagues were not at all interested in studying diet. Instead, they wanted to show how easy it is for bad science to be published and reported by the media. The design of the diet trial was deliberately poor. It involved only a handful of subjects, had a poor balance of age and of men and women, and so on. But, through the magic of p-hacking, they managed several statistically significant results: eating chocolate accelerates weight loss and leads to healthier cholesterol levels and increased well-being.

They wrote up the results, submitted the manuscript to twenty predatory journals known to publish basically anything for a price, picked one of the “multiple” ones that accepted it, and wrote a check. (The journal that published the paper now says it did so “by mistake” and has removed it from its website, but you can read it here.) Then they cooked up a press release, sent it out to numerous journalists and media outlets, and waited. Several (of various quality, focus, and circulation) took the bait and passed on to their readers the good news that adding chocolate to a "strict" low-carb diet would "accelerate weight loss." As Bohannon brags:

It made the front page of Bild, Europe’s largest daily newspaper, just beneath their update about the Germanwings crash. From there, it ricocheted around the internet and beyond, making news in more than 20 countries and half a dozen languages. It was discussed on television news shows. It appeared in glossy print, most recently in the June issue of Shape magazine (“Why You Must Eat Chocolate Daily”, page 128).

Then, yesterday, Bohannon exposed his own “con” in io9, an online science and technology magazine, under a headline that blared: I Fooled Millions Into Thinking Chocolate Helps Weight Loss.

Was the sting ethical?

Ranking the Mettle of Olympic Teams

Dan has kindly invited me to step back into the lounge for a bit.

What's on my mind is the Winter Olympics, and rankings.

As a part of Olympic coverage, we see the medal count rankings.  NBC always uses total medal counts. Last night’s NBC ranking had the U.S. at No. 1 with 23 medals. But total medal count treats all medals as equal; if Ecuador had had 24 Bronze medals, it would have led the rankings.

But the mettle of a team is measured by metal, not just counts; Gold medals are better than Silver medals, which are better than Bronze medals. The rankings on the official Sochi website last night ranked Norway No. 1, even though it had only 20 medals.

Ginger Rogers, Having It All, the Times and the Twitterati

Updated below

My Twitter feed is filled with outrage over a New York Times obituary. Science writer extraordinaire Ed Yong (whose excellent National Geographic blog happens to be called Not Exactly Rocket Science) started it off by tweeting:

Rocket scientist dies. NYT obit leads with her cooking skills, husband and kids. Oh just [f@!*] off.

That tweet has, as of this writing, earned 732 retweets (and an additional 140 favorites). In case Yong’s objection wasn’t clear from his tweet (or from the obit itself), here’s another version, from someone else responding to Yong:

Lesson to women scientists: even when you’re totally badass, you will be remembered for "following your husband from job to job"

Later, co-science writer extraordinaire Steve Silberman (who tipped Yong off to the obit in question) tweeted to Yong:

Notice we’re in the middle of a social science experiment? People enraged about [Yong’s tweet critiquing the obit]: male. People who got it: female.

In an effort to distinguish myself from my soon-to-be-90-year-old father-in-law, I try to spend as little time reading NYT obits as possible. So I hadn’t seen it. But after reading these and many, many similar tweets in my feed, I pointed my browser on over there, prepared to be outraged, too. 

But you know what? I’m not.

For the fairest test of your own reaction, I was going to advise reading the obit first. But as I was writing this, the Times edited the lede (without indicating that it did so), presumably in response to the Twitter backlash. I provide the new lede and the link to the obit below. But first, let's focus on what, until a short time ago, the obit used to say and why people are so worked up about it.

Are You Ready for Some . . . Research? Uncertain Diagnoses, Research Data Privacy, & Preference Heterogeneity

As most readers are probably aware, the past few years have seen considerable media and clinical interest in chronic traumatic encephalopathy (CTE), a progressive, neurodegenerative condition linked to, and thought to result from, concussions, blasts, and other forms of brain injury (including, importantly, repeated but milder sub-concussion-level injuries) that can lead to a variety of mood and cognitive disorders, including depression, suicidality, memory loss, dementia, confusion, and aggression. Once thought mostly to afflict only boxers, CTE has more recently been acknowledged to affect a potentially much larger population, including professional and amateur contact sports players and military personnel.

CTE is diagnosed by the deterioration of brain tissue and tell-tale patterns of accumulation of the protein tau inside the brain. Currently, CTE can be diagnosed only posthumously, by staining the brain tissue to reveal its concentrations and distributions of tau.[1] According to Wikipedia, as of December of 2012, some thirty-three former NFL players have been found, posthumously, to have suffered from CTE. Non-professional football players are also at risk; in 2010, 17-year-old high school football player Nathan Styles became the youngest person to be posthumously diagnosed with CTE, followed closely by 21-year-old University of Pennsylvania junior lineman Owen Thomas. Hundreds of active and retired professional athletes have directed that their brains be donated to CTE research upon their deaths. More than one of these players died by their own hands, including Thomas, Atlanta Falcons safety Ray Easterling, Chicago Bears defensive back Dave Duerson, and, most recently, retired NFL linebacker Junior Seau. In February 2011, Duerson shot himself in the chest, shortly after he texted loved ones that he wanted his brain donated to CTE research. In May 2012, Seau, too, shot himself in the chest, but left no note. His family decided to donate his brain to CTE research in order “to help other individuals down the road.” Earlier this month, the pathology report revealed that Seau had indeed suffered from CTE. Many other athletes, both retired and active, have prospectively directed that their brains be donated to CTE research upon their death.[2] Some 4,000 former NFL players have reportedly joined numerous lawsuits against the NFL for failure to protect players from concussions. Seau’s family, following similar action by Duerson’s estate, recently filed a wrongful death suit against both the NFL and the maker of Seau’s helmet.

The fact that CTE cannot currently be diagnosed until after death makes predicting and managing symptoms and, hence, studying treatments for and preventions of CTE, extremely difficult. Earlier this month, retired NFL quarterback Bernie Kosar, who sustained numerous concussions during his twelve-year professional career — and was friends with both Duerson and Seau — revealed both that he, too, has suffered from various debilitating symptoms consistent with CTE (but also, importantly, with any number of other conditions) and also that he believes that many of these symptoms have been alleviated by experimental (and proprietary) treatment provided by a Florida physician involving IV therapies and supplements designed to improve blood flow to the brain. If we could diagnose CTE in living individuals, then they could use that information to make decisions about how to live their lives going forward (e.g., early retirement from contact sports to prevent further damage), and researchers could learn more about who is most at risk for CTE and whether there are treatments, such as the one Kosar attests to, that might (or might not) prevent or ameliorate it.

Last week, UCLA researchers reported that they may have discovered just such a method of in vivo diagnosis of CTE. In their very small study, five research participants — all retired NFL players — were recruited “through organizational contacts” “because of a history of cognitive or mood symptoms” consistent with mild cognitive impairment (MCI).[3] Participants were injected with a novel positron emission tomography (PET) imaging agent that, the investigators believe, uniquely binds to tau. All five participants revealed “significantly higher” concentrations of the agent compared to controls in several brain regions. If the agent really does bind to tau, and if the distributions of tau observed in these participants’ PET scans really are consistent with the distributions of tau seen in the brains of those who have been posthumously-diagnosed CTE, then these participants may also have CTE.[4]

That is, of course, a lot of “ifs.” The well-known pseudomymous neuroscience bloggerNeurocritic[5] recently asked me about the ethics of this study. He then followed up with his own posts laying out his concerns about both the ethics and the science of the study. Neurocritic has two primary concerns about the ethics. First, what are the ethics of telling a research participant that they may be showing signs of CTE based on preliminary findings that have not been replicated by other researchers, much less endorsed by any regulatory or professional bodies? Second, what are the ethics of publishing research results that very likely make participants identifiable? I’ll take these questions in order.

Too Sexy for This Job?

On Friday, the Iowa Supreme Court ruled that an employee could be lawfully terminated because her employer found her to be an "irresistible attraction."  The Court's decision (here) - which, in the words of a friend of mine, "reads a bit Mad Men-like" - is worth a quick read.  In this case, the employer, a dentist, developed an attraction to his dental assistant, Ms. Nelson.  Over the years, Dr. Knight made several comments about Nelson's clothing being "too tight" and warned that she might see his "pants bulging" if her clothing was "too revealing."  When Knight's wife became concerned about the nature of the relationship between the parties, she demanded that her husband terminate the assistant.  And he did.

The Court held that neither Title VII nor the state's Civil Rights Act forbade the adverse employment action, despite the plaintiff's argument on appeal that the doctor's behavior amounted to sexual harassment which would have, itself, been actionable even without termination.  The decision appears to turn on the fact that the relationship/fresh language/etc. was not "unwanted" - in other words, Ms. Nelson did not complain about Knight's language and maintained a friendship with him over the course of their working relationship.  According to the court, their workplace environment never assumed the level of "hostility" required for such claims.

A few media outlets have picked up the decision and are reporting it with surprise - reporters rarely get the law right in such blurbs, so here's the decision for you to draw your own conclusions.

Ranking the Amendments

Earlier today, sports blog Deadspin posted a list ranking the amendments to the Constitution. According to editor-in-chief Tommy Craggs’ algorithm – which is not explained in the blog post – the Fourteenth ranks first, followed by the Fifth and Fourth, respectively. The Second ranked dead last.

I’m sure we all have our favorite amendments (“favorite,” in terms of our scholarship and “favorite,” in terms of our personal constitutional politics); where would you rank the Second? Or any of the others? Given the choice, I’d probably rank the Fourteenth and the Second close together; both are ambiguous enough to remain subject to highly-contentious judicial construction. I’d probably rank the Third somewhere near the top, since the prospect of quartering a slew of soldiers in our NYC apartment seems particularly unsavory to me.

Are there others?

 

The Risk of Revictimization and the Ethics of Covering School Shootings: What Journalists Can Learn from IRBs

Updated below

Like most parents, after learning about the latest mass school shooting this morning, my thoughts immediately went to my own kindergartener. And of course, like most reading this blog, I thought about how poorly we handle guns and mental illness. Before too long, though, I couldn’t help but make a less direct connection between today’s events and my scholarly interests. I’m thinking of the way journalists cover school shootings as compared to how we regulate human subjects research.

As I write in The Heterogeneity Problem, 65 Admin. L. Rev. __ at 14-16 (forth. June 2013):

Studies on sexual abuse and assault, grief, war, terrorism, natural disasters and various other traumatic experiences are critical to better understanding and addressing these phenomena. But exposure to trauma — whether as a survivor or as a first rescuer or other third party — often causes substantial psychological morbidity. . . . Given their potentially fragile state, IRBs understandably worry that “questioning [or otherwise studying] individuals who have experienced distressing events or who have been victimized in any number of ways . . . . might rekindle disturbing memories, producing a form of re-victimization.”

IRBs — local licensing committees who operate according to federal statute and regulation and must approve most studies involving humans before researchers can even approach anyone about possibly participating — sometimes impose burdensome requirements on the way trauma research is conducted in order to protect adult subjects from the risk of revictimization. And they do so in addition to applying regulations that require that researchers disclose that risk (and others) to subjects.

Contrast this with the way journalists cover trauma.

"The Suicide Plan"

On Tuesday evening, November 13, PBS will be airing, "The Suicide Plan," an impressive look at underground aid in dying (or assisted suicide). Despite legal prohibitions on aid in dying, most recently reaffirmed last week by voters in Massachusetts, patients and their advocates may resort to the practice for relief of suffering. The show illuminates factors that drive people to defy the law, the costs to dying patients and their families when aid in dying is prohibited, and the concerns that observers express about the practice.

Election 2012

I thought I might open a thread for people's thoughts on last night's election.  I was tuning in and out throughout the night as I'm sure many others were, although the vote in Texas wasn't all that exciting.

I was interested in the record number of women elected into the senate - and Senator Elizabeth Warren from MA will be interesting to follow.

I heard that people were already tweeting about Hillary 2016, but now I'm wondering about Warren 2016.

Last night, I also heard one state legalized marijuana for the first time and the first openly gay senator was elected.

It was also the first "Twitter" election and apparently a tweet of the victory hug between Barack and Michelle Obama knocked Justin Beiber off the top tweet spot!

Any other interesting tidbits people picked up?

Lucy Dalglish Named Dean at Maryland College of Journalism

Academia is gaining a great advocate for speech and press freedom. Lucy Dalglish, Executive Director of the Reporters Committee for Freedom of the Press, has been named Dean of the University of Maryland's Phillip Merrill College of Journalism, effective August 1, 2012.

Here is an excerpt from the press release:

Dalglish comes to Maryland after serving for more than twelve years as Executive Director of the Reporters Committee for Freedom of the Press, a voluntary, unincorporated association of reporters and news editors dedicated to protecting the First Amendment interests of the news media. Based in Arlington, Va., the Reporters Committee has provided research, guidance and representation in major press cases in state and federal courts since 1970. Ms. Dalglish is President of the National Freedom of Information Coalition and Supervisor for the Sunshine in Government Initiative, a coalition of media organizations working on federal information policy, which she co-founded.

Prior to assuming the position of Executive Director in January 2000, Dalglish was a media lawyer for almost five years in the trial department of the Minneapolis law firm of Dorsey & Whitney LLP. From 1980-93, Dalglish was a reporter and editor at the St. Paul Pioneer Press.

This year, Ms. Dalglish won the National Press Foundation's W.M Kiplinger Award for distinguished contributions to journalism. In 1995, she was awarded the Wells Memorial Key, the highest honor bestowed by the Society of Professional Journalists for service to the Society and the journalism professions, and in 1996, she was inducted into the National Freedom of Information Act Hall of Fame. Dalglish earned a juris doctor degree from Vanderbilt University Law School in 1995; a master of studies in law degree from Yale Law School in 1988 (where she was a Knight Foundation Journalism Fellow) and a bachelor of arts in journalism from the University of North Dakota in 1980.

Thank you to Lucy for her leadership at the RCFP and welcome to academia!

As for music, this Umphrey's McGee line from the song, Bridgeless, conveys one of the underlying purposes for robust free speech and press rights:

The more you breathe open-minded air

 You'll be reminded of why we're here.

"That" Time Magazine Cover

For anyone who hasn't seen or heard about it, this week's Time magazine cover depicts a young mother breastfeeding her three year old son.  One story, including copy of the cover, is here.  The lead article is about attachment parenting which is not a new phenomenon but which certainly raises strong opinions amongst parents and others.  The cover of the magazine itself was clearly meant to provoke discussion - and has provoked a lot so far.  It got me to wondering which other magazine covers have made the most impact (and sold the most magazines) over the years.  The year that Time magazine nominated "You" as "Person of the Year" springs to mind.  Any others?

I'm the Slime?

As the Supreme Court’s second decision in three years in FCC v. Fox Television Stations, Inc. nears, a brief history of indecency regulation may be of interest and begins with a tie to music.

In 1970, the FCC levied its first indecency fine.  The FCC fined a Philadelphia non-profit educational radio station, WUHY-FM, $ 100 for broadcasting a pre-recorded interview with Jerry Garcia.  Garcia interspersed his musings on a vareity of topics with indecent language, such as "political change is so fucking slow." No one complained about the broadcast.  The FCC was monitoring the radio station.  In dissent, Commissioner Nicholas Johnson conveyed bewilderment and disdain about the FCC’s decision to fine this particular station:

[W]hen we do go after broadcasters, I find it pathetic that we always seem to pick upon the small, community service stations . . . It is ironic to me that of the public complaints about broadcasters' ‘taste’ received in my office, there are probably a hundred or more about network television for every one about stations of this kind. Surely if anyone were genuinely concerned about the impact of broadcasting upon the moral values of this nation — and that impact has been considerable — he ought to consider the ABC, CBS and NBC television networks before picking on little educational FM radio stations that can scarcely afford the postage to answer our letters, let alone hire lawyers. We have plenty of complaints around this Commission involving the networks. Why are they being ignored? I shan't engage in speculation.   Download In Re WUHY FCC 1970

In 1975, the FCC received one complaint because a New York radio station broadcasted George Carlin’s Filthy Words monologue in the afternoon.  In 1978, the Court held in FCC v. Pacifica Foundation that regulating indecent speech on broadcast radio and television did not per se violate the First Amendment.  The Court based its decision on the dual rationales that broadcast radio and television are uniquely pervasive in society and that they are uniquely accessible to children.  Justice Powell’s concurrence made clear that the Court did not decide whether the isolated use of a potentially offensive word could be regulated and that the holding was limited to the specific context of Carlin’s “verbal shock treatment.”

For a quarter-century, the FCC maintained that fleeting expletives did not rise to the level of indecent speech.  But, after Bono used a fleeting expletive when receiving a Golden Globe award, and Cher and Nicole Richie made similar transgressions on the Billboard Music Awards, the FCC reversed course and issued its 2004 Golden Globe Order finding that any use of the words fuck or shit is inherently indecent, except for a couple of exceptions.

 In 2009, the Court held 5-4 that the FCC rule change did not violate the Administrative Procedure Act’s arbitrary and capricious standard.  Justice Stevens, who wrote the majority opinion in Pacifica, dissented in Fox I.  Now, the Court considers whether the FCC’s indecency regulation violates the First or Fifth Amendments.

One would be hard pressed to argue that broadcast radio and television are still uniquely pervasive in society and uniquely accessible to children in light of the numerous media technologies that exist, especially considering the ubiquity of mobile devices with internet access.  Not only do the rationales of Pacifica fail to reflect the realities of 2012, advertisements like the Go Daddy commercials that air during the Super Bowl and for products like KY Intense, an “arousal gel” make futzing around with fleeting expletives a rather futile exercise. Justice Stevens made a similar point in a footnote to his Fox I dissent: "It is ironic, to say the least, that while the FCC patrols the airwaves for words that have a tenuous relationship with sex or excrement, commercials broadcast during prime-time hours frequently ask viewers whether they too are battling erectile dysfunction or are having trouble going to the bathroom."

Here’s Frank Zappa performing, I’m the Slime on Saturday Night Live in 1976, complete with guest vocals by Don Pardo.  Zappa’s take on the slime oozing out of the tv set is more aligned with Commissioner Johnson’s WUHY-FM dissent, than a concern about “bad words.”

Democracy Without a First Amendment

One topic I've been asked about a lot lately is how Australian democracy runs smoothly without any clear express constitutional right to free speech.  There is a relatively restricted minor implied right to free speech in the constitution but nothing in writing and nothing like the rights that exist in countries with express rights (including the U.S., Canada, New Zealand, the U.K. etc).  With thanks to Eric Robinson for bringing this to my attention, Australia is now considering a new government funded regulatory body to oversee the media.  Story here. 

Australia has also been able to regulate things like violent video games and violent or sexually explicit movies much more effectively than countries with stronger constitutional speech protections.  So the question is whether in the age of globalized, converging media and entertainment outlets, how will domestic governments deal with the increased internationalization of information more generally, particularly when domestic governments have such different stances, and powers and reflect different cultural values about the media.

Twitter Libel

TMZ reports that New Edition member Johnny Gill is facing a lawsuit (presumably for libel) based on what he said in a tweet. Being sued for what you say on Twitter is nothing new.  As we've covered at TortsProfs, Twitter libel suits are fairly common these days.  Kim Kardashian, for example, was sued based on a tweet. But Johnny Gill appears to think that 140 characters or less provides a license to say anything.  He reportedly told TMZ that people shouldn't be allowed to sue based on a tweet because "the courtrooms would be filled with a bunch of Twitter people complaining about things people say every day."

His remark caused me to think about electronic communication generally.   What is it about electronic communciation (tweets, emails, texts) that causes us to say things we otherwise would not say orally or in a non-electronic writing?  It could be the mere speed of the communication.  Maybe we just speak too soon without any reflection time.  But is it something more than just speed?

U.S. News to Rank Third Tier Law Schools?

Apparently the U.S. News is considering numerically ranking third tier law schools.  Story here.

Wikileaks: House Judiciary Committee Hearings

 

Hearings held this morning on "Wikileaks, the Espionage Act and the Constitution."

Just 10 minutes in, but so far the "voice of reason award" goes to . . . . 

 

Hyperlinking and Defamation in Canada

(Cross-posted from Madisonian.net)

With thanks to one of my Canadian students for forwarding this to me, it appears that the the Supreme Court of Canada will soon be deciding a case which will determine whether hyperlinks may constitute publication for the purposes of defamation law, such that a person who publishes a hyperlink would be potentially liable in defamation for defamatory content on the site to which she has linked.  Story here.

One interesting thing about the news report (that I hyper-linked to!) is that it notes that in the United States "hyperlinking is not considered publication".  I'm actually not aware that any American case has expressly decided this yet, although I'm not a defamation expert.  I know in cases like Perfect 10 v Google, courts have held that hyperlinking does not amount to copying content for the purposes of copyright law.  But does this answer the publication question in the defamation context?  It may be that the question is moot in the United States because many of those who hyperlink could be potentially covered by section 230 of the CDA if they are not regarded as being the "content provider" of the relevant information, although this analysis may have its limits depending on the facts.

Looking forward the Canadian decision on this one.

Television Cameras Coming to A Federal Courthouse Near You

The judiciary has approved a pilot program to "evaluate the effect of cameras in federal district courtrooms and the public release of digital video recordings of some civil proceedings."  The three year pilot program will be national in scope and will evaluate the effect of cameras in district court courtrooms.  

Jurist has more here.

Namedropping

It's kind of cool to pick up the national newspapers and find articles that involve two friends.  The New York Times had an article in the science section this morning about new discoveries that confirm the theory of genomic imprinting, under which that father and mother genes do not always have equal chances of being present in the offspring.  As the article notes, the leading explanation of genomic imprinting comes from David Haig, an evolutionary biologist at Harvard who also happens to be my next-door neighbor.  

Then I picked up the Wall Street Journal to see that my former law partner and friend Nancy Edmunds is the federal judge presiding over the alleged Christmas Day bomber in Detroit (he fired his lawyer yesterday, asking to represent himself).