Press Release

AAP Files Amicus Brief Opposing Censorship by Litigation

Brief Highlights Importance of Peer-Review Process in Scholarship

Today, the Association of American Publishers, joined with the International Association of Scientific, Technical and Medical Publishers, and Federation of American Societies for Experimental Biology to file an amicus brief in support of the American Society of Anesthesiologists in their ongoing suit lodged by Pacira, a pharmaceutical company.

In 2021 Pacira sued the American Society of Anesthesiologist, the publisher of the scholarly journal Anesthesiology, along with the journal’s editor-in-chief and 11 authors, accusing them of trade libel over statements in a series of articles challenging the effectiveness of Pacira’s analgesic drug Exparel. In February 2022, a federal court correctly ruled against Pacira, noting that the statements featured in the article were scientific opinion, and as such could not constitute defamation. Pacira is now appealing that decision.

“Litigation over scientific conclusions must be soundly rejected, or else critically important research, scholarship, and scientific inquiry will be chilled,” commented Terrence Hart, General Counsel, Association of American Publishers. “As we point out in our brief, academia and research labs are the proper place for scientific disputes, not courtrooms. Scholars, authors and publishers must be free to disseminate important educational and scientific works and contribute to the ongoing debates in the scientific and medical communities without fear or favor.”

Highlights of the amicus brief include the following arguments:

• Scholarly publishing is critical to the advancement of scholarship and innovation. Scientific and medical publishers, among other scholarly publishers, engage editors knowledgeable in their fields and often subject works to peer review by other scholars in the specialized field, thus promoting the publication of rigorous scientific papers based on data and information that withstands scrutiny by doctors, scientists, engineers, and researchers from all fields, and that may be relied upon. Ultimately, scholarly publishers help us harvest, interpret, and contextualize the results of scientific inquiry in order to cure disease, spur technological advancement, and increase understanding of each other and the universe we inhabit.
• Amici’s members publish the very works where that “trial of ideas” plays out every day. Academia and research labs, not courtrooms, are the proper places for scientific disputes. In other words, the answer to “contestable science” is more science; that is the inherent nature of the scientific prospect.
• Amici seek to prevent censorship of or a chilling effect on academic scholarship, which impacts the ability of authors and publishers to disseminate important educational and scientific works and contribute to the ongoing debates in the scientific and medical communities.

The case is Pacira BioSciences, Inc. v. American Society of Anesthesiologists, Inc.