Challenge to Scholarly Surveys Again Rejected

Judge Leonard B. Sand, of the United States District Court for the Southern District of New York, issued a decision on November 2, 1995, reaffirming the First Amendment right to publish surveys analyzing the prices of scientific journals. The decision represents a significant confirmation of the legal protection afforded speech of importance to the scholarly community.

In 1986 and 1988 The American Physical Society (APS) and the American Institute of Physics (AIP) published surveys prepared by Professor Henry Barschall of the University of Wisconsin/Madison analyzing the comparative prices of physics journals. A suit challenging the articles was brought by Gordon & Breach Science Publishers (G&B). As noted by Judge Sand, "[a] s it happened, journals published by AIP and APS scored near the top of the articles' rankings and several of G&B's journals were ranked at or near the bottom." G&B filed suit in New York, as well as a series of related actions in Europe, claiming that the articles constituted false or misleading advertising.

The recent decision arises from G&B's request that the court modify its previous decision holding that publication of the articles was speech entitled to constitutional protection. Judge Sand stated that "it is plainly inconsonant with justice to grant [G&B's] requested relief," noting that G&B "seek [s] back-door entry to revisit the issue, after undertaking the exact discovery that the Court cautioned against in the first instance."

G&B also challenged various "secondary uses" of the surveys, including advertising, letters, and presentations by APS and AIP officials. Judge Sand ruled for AIP and APS on several of these claims, but found there were factual issues as to others that had to be resolved at trial. For the remaining secondary uses, G&B will now have to show that the surveys were false or misleading - claims that have been previously rejected in Switzerland and Germany after thorough review.

Dr. C. Kumar N. Patel, President of The APS and Dr. Roland W. Schmitt, Chair of the Governing Board of the AIP stated that "we are extremely gratified by Judge Sand's decision. His action provides important protection for studies of an issue of significant importance to libraries and the scientific community as a whole - the escalating price of journals in a period of declining library budgets."

They said, however, "we are distressed that, in having to litigate the remaining secondary uses, AIP and APS will have to defend again in the U.S. what has previously been found in Germany and Switzerland - that the surveys are not false or misleading. Although we are confident that we will prevail on the remaining issues, the scholarly community is not served by the diversion of scarce resources into the defense of G&B's lawsuits."

For further information or a copy of the decision, contact Joan Wrather (301) 209-3093, fax: (301) 209-0846, or email: ( jwrather@acp.org ).