The past few years have seen an unprecedented level of anti-science actions in the United States, from a president who famously called climate change a “Chinese hoax” to a nationwide resurgence of so-called flat-earth beliefs including, unbelievably, doubt by some that the world is round. Most recently, the coronavirus pandemic has been met with numerous instances of science denial. The resulting worsening of a public health crisis has put into even sharper relief the ways in which our institutional systems are ill-equipped to prevent or counter attacks on the logical and factual basis for our understanding of the real world.

Environmental law is the application of our system of statutes, regulations, procedures, and precedents to the findings of science on issues concerning public health and conservation of natural resources. Thus it is particularly unfortunate that scientists — especially those researching highly politicized topics such as covid-19 or climate change — operate in a landscape that is rife with misrepresentation of their work, censorship, political intimidation, hostile targeting, and even death threats. That is in addition to funding cuts and diminished resources, not just under the current administration but throughout recent history. Today, scientists routinely have to fight for the integrity, indeed the necessity, of their research against pressure coming from multiple directions.

Unfortunately, in the face of these challenges, the legal system has not always risen to protect scientific integrity nor even researchers themselves, despite laws designed to prevent abuse. Moreover, there are also instances of some laws, most notably open records laws and other investigatory tools, being weaponized against researchers in plain contravention of legislators’ original intention in drafting the measures. In particular, scientists who are employed by the government or who receive government grants — that is to say, most scientists who research important environmental and public health topics — have found that many of the issues they face present no meaningful options for legal recourse or protection. Federal agency scientists, university researchers, and other recipients of government grants are on the front lines of trying to understand and solve some of our most pressing problems, but as we will see the safeguards for them and their research are far too limited.

As the recent presidential impeachment saga revealed, government officials have played key roles in exposing serious abuses, but whistleblower protection laws are spotty at best. Whistleblowers in the science community have particularly important contributions to make in protecting public health and environmental welfare, and yet have some of the most limited protections. Federal law does provide safeguards for whistleblowers speaking out against serious science misconduct — but only in certain situations and only for certain types of workers. These limitations do not reflect how researchers are employed or even how science actually works.

The most prominent federal protections are under the Whistleblower Protection Act of 1989 and the Whistleblower Protection Enhancement Act of 2012. Under the latter, Congress expanded whistleblowing protections to shield disclosures of science censorship that a federal employee reasonably believes evidences a violation of law or regulation; gross mismanagement; gross waste of funds; abuse of authority; or a substantial and specific danger to public health or safety.

On its face, this protection may seem solid. Unfortunately, practically speaking, even those for whom disclosures seem squarely addressed under the law do not always find themselves protected after all. The standards for what, in fact, is considered a “mismanagement,” “abuse of authority,” “substantial and specific danger to public health or safety,” or other threshold issue are quite stringent. There is also extremely limited guidance on what would legally be considered to constitute “scientific censorship” evidencing one of these forms of misconduct. Perhaps most unsettling, one of the main bodies for addressing issues of retaliation against putative whistleblowers — the Merit Systems Protection Board — has not had the necessary quorum since early January 2017, meaning that all whistleblower cases before the board have accumulated without resolution for the better part of four years.

Moreover, by its terms, the legal protections for disclosing abuses relating to science censorship only apply to employees — which means that federal contractors, grantees, and others outside of the traditional employer-employee relationship are not protected. Overall, increases in the number of government contractors have far outpaced federal employee growth in recent decades, and it is not uncommon for agency scientists to be in some sort of federal contractor or grantee relationship. Oftentimes their federal role is in conjunction with a (possibly unpaid or adjunct) academic appointment.

To be sure, there are whistleblower protections for federal contractors and grantees, but — in stark contrast to the situation with employees — there are no specific protections related to disclosures of science censorship, a major omission that effectively prevents contractors or grantees from receiving protection for disclosures regarding research misconduct.

Many federal agencies adopted scientific integrity policies following a 2009 memorandum issued by President Obama and a subsequent memo issued in 2010 by the White House Office of Science and Technology Policy. These documents were intended to prevent the scientific integrity violations that have happened in all administrations. Depending on the agency, the policies cover a range of issues, from plagiarism to politically motivated censorship.

As a general matter, studies have shown that just the existence of scientific integrity policies may decrease incidences of misconduct. And even when the policies fail, engaging with the process can establish a record of how and why a policy didn’t provide the protections it should, which can lay the groundwork for stronger protections for scientific integrity going forward.

Unfortunately, the policies are often piecemeal, confusing, and vary substantially from agency to agency. For example, policies have different levels of protection against political interference in research. On one end of the spectrum, the National Oceanic and Atmospheric Administration explicitly prohibits officials from directing researchers or other NOAA employees to suppress or alter findings. At the other end of the spectrum, the Centers for Disease Control and Prevention, on the front lines of the coronavirus defense, fail to address political interference at all.

Agency policies also have wide variations on how they address other important issues, such as what sorts of rights scientists have in communicating their research to the press and to the public, including whether and how scientists have the right to correct agency communications involving their work; whether and how science will be used in agency decisionmaking; and how a scientist can file a scientific integrity complaint and how that complaint will be addressed. The policies are also inconsistent in how they are applied, such as whether political appointees or federal grant recipients are covered.

The policies lack the full force of law, with no clear appeal rights and — as illustrated above — those who file scientific integrity complaints may ultimately find themselves in a whistleblower role, where there are extremely limited protections against retaliation.

To the extent the federal policies have been enforced, the effort has been somewhat arbitrary. By and large, scientific integrity complaints are handled within an agency, which makes it hard to achieve a fully impartial review. Agency scientific integrity officers are under the same political pressures as other agency employees and, not surprisingly, seem hesitant to issue decisions that might exacerbate political tensions.

In one illustrative case (on which this author has worked), senior Department of the Interior officials repeatedly sought to censor a scientific report and remove all references to the human causes of climate change, despite that being an underpinning of the scientist’s research and the report’s conclusions. After numerous arguments as well as press attention, the report was ultimately published with the original references intact; a subsequent investigation concluded that there had been no actual integrity violation because the report was eventually published correctly. Interior’s scientific integrity officer concluded that “because the report was published with references to anthropogenic climate change, there was no loss of scientific integrity.” Meanwhile, the scientist involved ultimately lost her job — highlighting the critical lack of protections against retaliation.

Scientific integrity polices are even more flawed at universities in the United States. Protections generally only exist for “research misconduct,” a relatively narrow concept that addresses issues such as plagiarism and fraud, but does not include issues such as censorship or communication rights. This is almost entirely the result of requirements that institutions receiving certain forms of federal funding have research misconduct policies, but as there is no actual requirement that universities address the issue more broadly, the vast majority have avoided doing so. And while it may be reasonable to conclude that those in the ivory tower face reduced political pressures as compared to colleagues in the government, it is absolutely true that political censorship, gag orders, and threats still exist in academia, especially for untenured researchers.

Perhaps most concerning, scientific integrity policies or even research misconduct guidelines are largely missing from state government science agencies. Our research into this subject was only able to locate two state agencies with scientific integrity policies, the Wisconsin Department of Natural Resources and the California Department of Fish and Wildlife. While these two thankfully do have relatively comprehensive policies, especially compared to the average university, the dearth of widespread policies at the state government level is highly disappointing and makes state employees particularly vulnerable to political censorship and other forms of science misconduct.

In some ways, one of the most disheartening sets of failures has happened with open records laws, the federal Freedom of Information Act and state equivalents. These are powerful laws, intended to provide much-needed transparency into government actions, and these laws have been successfully used by investigative journalists, watchdog groups, and, of course, environmentalists. In their intended form, the laws allow citizens to request administrative records to better understand how their government works and expose wrongdoing; a quintessential example might be a conservation group using the laws to see how an agency is or isn’t tackling effluents that affect water quality.

Unfortunately, these laws are also imperfect tools. Despite their noble goals, they have been increasingly weaponized against publicly funded researchers by individuals and groups that want to challenge and undermine researchers’ work. Climate scientists in particular have found themselves on the receiving end of voluminous open records requests by entities that dispute the reality of climate change; usually these requests focus on finding emails and other correspondence whose language can easily be taken out of context.

In their private emails, researchers frequently use technical jargon, bounce around new ideas, and engage in devil’s advocate debates to try to pull apart their own arguments. All of these tendencies, which are intended to push research forward, also mean that researchers’ emails are ripe for misrepresentation by hostile forces. This was seen to great effect in the 2009 manufactured controversy dubbed Climategate. Thousands of scientists’ emails were hacked, posted online, and a few out-of-context phrases were used to falsely suggest that these researchers were committing misconduct. Efforts to obtain vast swaths of emails via open records laws are often seeking the same result — i.e., an opportunity to find a sentence or two that, on its own, suggests that climate researchers cannot be trusted.

Of course, transparency in science is of critical importance, and the legal system rightly tries to provide a window into how public funds are used. But these transparency standards are applied unevenly — the brunt falls on government agency and public university researchers, even if they are doing work identical to their privately employed counterparts, and even if those private researchers receive federal grants, since grantees are largely exempted under FOIA.

Open records requests rarely comport with how scientific transparency actually works. True transparency is dependent on sharing data, methodologies, results, and conclusions (in addition to any potential conflicts of interest such as funding sources). But that is already required for publication in an increasingly substantial number of journals. All of the major scientific societies have long recognized that, in the absence of indicators of data fraud or similar action, forcing researchers to share internal correspondence, early drafts, and peer review comments will only serve to chill free thought and inquiry.

Undoubtedly, chilling free thought is likely the actual goal of many of these invasive requests; in one notable example, a conservative group that has openly claimed that climate researchers are “frauds” has spent years filing open records requests for a range of scientists’ emails; some of these requests span decades and constitute tens of thousands of records. When they are successful in obtaining emails — usually at great financial and time expense of the researchers and their institutions — the group will post them online in highly misleading contexts in order to suggest malfeasance. Of course, any group that disagrees with a scientific conclusion is welcome to request data, to conduct its own studies, and attempt to replicate and reproduce research conclusions to find they are wrong. But these invasive requests virtually never seek the actual scientific information that would be necessary to make an informed counterargument, only emails.

Thankfully, some states have started to implement reforms that help protect researchers’ internal correspondence and drafts, while still recognizing that certain types of requests — such as for funding sources or final results — should be explicitly allowed. The federal government, particularly under the Obama administration, also made efforts to protect federal scientists using established exemptions under federal law. These reforms have stalled in recent years.

Another, somewhat similar situation in which well-intended laws have been used for malicious purposes has been in the investigatory context, most notably regarding congressional inquiries. Congress has extensive oversight powers, and legislators’ ability to request information is virtually without limitation. Given these powers, some members of Congress have used their position to target scientists whose research they do not like — from climate scientists to environmental toxicologists to stem-cell researchers.

Sometimes these investigatory measures have involved a series of public hearings and other grandstanding efforts but, at times, efforts have also gone much further. Congressional representatives have sought full-scale investigations from an agency’s office of inspector general, have demanded grant reviews from the National Science Foundation, and have subpoenaed emails (with similarities to invasive open records requests), among other actions.

Lamar Smith, a Texas Republican who served in Congress from 1987 until 2019, including as chair of the House Science Committee for a number of those years, provides some of the most egregious examples. Likely stemming from his beliefs that human-caused climate change was largely “science fiction,” Smith repeatedly accused individual climate researchers of misusing grant funding, and sought to have them investigated. Importantly, no funding misconduct was ever found.

In his last term, he called for an investigation of a senior official at the National Institutes of Health; she had written that researchers and other citizens needed to push for more stringent pesticide regulations, which Smith called a violation of anti-lobbying rules — most legal experts disagreed. Perhaps most famously, Smith targeted Obama-era NOAA scientists with a series of subpoenas; he claimed that agency research findings of increased marine warming were politically motivated and evidence of fraud. These research results were later validated by other independent studies.

Unfortunately, Representative Smith is not the only Congress member who has targeted researchers with whom he disagreed. Numerous others have engaged in similar tactics. More recently, a group of House Republicans called for investigations into the modeling used to predict the impacts of the covid-19 pandemic. The representatives stated that decisions made as a result of these models were leading to “an enormously negative economic impact” while claiming that the models themselves may be “flawed” as they “have exhibited conflicting data over time, as well as within a comparison of the models themselves.” Public health experts have responded that model results are expected to change over time, as the underlying assumptions are updated.

Given the substantial power that is afforded to members of Congress, the phrase bully pulpit can unfortunately sometimes be quite appropriate. Of course, there are limitations on Congress — for example, actually enforcing subpoenas and implementing investigations requires increasing levels of political will and coalition-building. Congressional committee rules can also be implemented to help forestall abuses of power, such as by requiring committee votes to issue subpoenas. (Representative Smith, it should be noted, had unilateral subpoena power for most of his tenure on the Science Committee.) And, if nothing else, Congress is ultimately responsible to its constituents, and public outrage over anti-science behaviors does seem, at least some days, to be slowly but surely rising.

Some of the most upsetting issues faced by researchers are also sometimes the most nebulous. There has been a well-documented rise in online harassment against researchers, sometimes with racist or sexist overtones. Scientists have received death threats and threats to their families, as well as “lesser” threats such as doxing and hate mail, online smear campaigns (which often lead to more hate mail and other threats), and threats of frivolous lawsuits — most commonly involving defamation.

The death threats are, in some ways, the most straightforward for the legal system to respond to. While many such threats are issued by anonymous online accounts, and thus are not easily traceable, researchers have successfully secured restraining orders against known actors. (This author has helped scientists obtain restraining orders; while the process is certainly not fun or even always well-run, there are at least established protocols and resources.)

Other forms of harassment, however, are much trickier to handle. Online harassment laws do exist, but they are usually circumscribed to situations — such as with schoolchildren or domestic abuse — that don’t address the specific circumstances of researchers targeted by hate mail. Anecdotally, researchers seeking assistance from institutional authorities or local law enforcement have been met with bewilderment; systems are not designed to deal with these sorts of issues.

Instead, often the best and most practical advice for researchers is to delete and ignore these messages, even when coming from identified sources or instigated by known actors on the internet or talk radio. This advice, however, does not account for the emotional turmoil and lost time taken up in dealing with these issues. It also does nothing to prevent bad actors from continuing to harass.

Of course, some messages are simpler to ignore than others. Scientists, particularly those who speak out against misinformation campaigns, or who otherwise challenge powerful financial interests, have found themselves threatened with frivolous defamation lawsuits. Usually this is done in a clear attempt to evince a retraction — or at least cause scientists to think twice about future communication efforts — even though there typically is no cognizable defamation claim under state laws.

Most of these defamation claims are never actually filed, especially in states that have laws designed to discourage strategic lawsuits against public participation, so-called SLAPP suits. But they nonetheless can still serve their intended purpose: to use the threat of legal action to make researchers more hesitant to publicly communicate about politically charged issues.

While there are numerous legal and institutional obstacles facing scientists in these post-truth times, there are just as many opportunities for improvements, and while some are more politically or legally complex than others, we are hopefully entering a time period in which pro-science reforms will be seen as necessary.

Recommendations at the federal level start with expanding whistleblower protection laws to include contractors and grantees in the groups protected for disclosures regarding science censorship. Congress can also confirm nominees for the Merit Systems Protection Board, giving it a quorum so it can protect whistleblowers of all stripes, not just scientists. It would also be a good idea to strengthen federal scientific integrity policies at the agency level to more thoroughly address issues such as political interference and researchers’ rights to publicly communicate about their work. Such policies could as well improve procedural aspects such as providing more clarity about how researchers can file complaints and explicitly granting the right of appeal to an impartial fact finder outside the agency. The pending Scientific Integrity Act in the House confronts some of these issues. Congress can also change its rules to prevent or at least curtail the issuance of unilateral subpoenas in congressional committees.

At the state level, start with revising open records laws to make clear that research correspondence and research drafts are excluded from document requests or, at least, given a presumption of protection. Then ensure that state science agencies and research universities have robust polices that address the full range of scientific integrity issues, from research misconduct to political censorship, and provide the necessary procedural processes for filing a complaint and impartial appeal if necessary. States can also expand anti-harassment laws to cover a wider list of prohibited behaviors and protect a broader range of people, and enact anti-SLAPP laws to discourage frivolous defamation lawsuits.

Researchers on the front lines can no longer wait for the legal system to catch up and protect them. Public health is in crisis, from covid-19 to climate change to deadly air pollution. Lives and livelihoods are at stake; scientists need to move forward quickly and be shielded from frivolous interference in their work. Researchers need to be free to conjecture, debate, and discuss their work freely, without the threat that their language will be deliberately misconstrued as evidencing fraud and thus become front-page news. Legal reforms are urgently needed to allow researchers the freedom they need to explore how to protect the rest of us. TEF