Saad v. American Diabetes Association

Filing 10

District Judge Timothy S Hillman: ORDER entered denying 2 Motion for TRO. (Castles, Martin)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
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MARIO J.A. SAAD, MD PhD,
Plaintiff,
v.
AMERICAN DIABETES ASSOCIATION,
Defendant.
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CIVIL ACTION
NO. 15-10267-TSH

ORDER ON PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER
AND PRELIMINARY INJUNCTION (Docket No. 2)

February 23, 2015
Plaintiff Mario Saad, M.D., Ph.D. filed this defamation action against the American
Diabetes Association (“ADA”) on February 5, 2015. He has moved for a temporary restraining
order and preliminary injunction enjoining the ADA from publishing an “expression of concern”
regarding four articles that Dr. Saad wrote for the ADA’s scientific journal Diabetes. For the
following reasons, the motion is denied.
Dr. Saad is a Professor of Medicine at the State University of Campinas in São Paulo,
Brazil. He has published over 200 articles in scholarly journals, including four articles in the
ADA’s flagship publication Diabetes. Those articles appeared in 2011, 2007, 2006, and 1997,
respectively. In March 2014, the ADA’s Subcommittee on Ethical Scientific Publications
contacted Dr. Saad and informed him that his 2011 and 2007 articles “appear to contain instances
of image manipulation and duplication that violate the journal’s publication policies.” Pl.’s
Compl. ¶ 17. Dr. Saad was given an opportunity to respond, but his explanation did not resolve
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the ADA’s doubts about the reliability of the data in the articles.1 In October 2014, the ADA
notified Dr. Saad that new allegations of image-manipulation had arisen—this time with respect
to his 2006 and 1997 Diabetes articles. Ultimately, the ADA informed Dr. Saad that Diabetes
would publish a digital expression of concern about the four articles, as well as a hard-copy
expression of concern to appear in the March 2015 print issue.2
Dr. Saad has moved for a temporary restraining order and preliminary injunction (1)
requiring the ADA to remove the digital expression of concern that was published on the
Diabetes website; (2) enjoining the ADA from publishing the hard-copy expression of concern in
the March print issue of Diabetes; and (3) enjoining the ADA from retracting Dr. Saad’s four
articles from Diabetes. The motion essentially asks for a court order preventing the ADA from
expressing its concern about Dr. Saad’s work—a classic prior restraint that is presumptively
invalid under the First Amendment.
A prior restraint is “government regulation that limits or conditions in advance the
exercise of protected First Amendment activity.” Auburn Police Union v. Carpenter, 8 F.3d 886,
903 (1st Cir. 1993). Prior restraints are “the most serious and the least tolerable infringement on
First Amendment rights,” because they may prevent the dissemination of truthful information.
Nebraska Press Ass’n. v. Stuart, 427 U.S. 539, 559, 96 S.Ct. 2791 (1976); see also Krebiozen
Research Foundation v. Beacon Press, Inc., 334 Mass. 86, 95 134 N.E.2d 1 (1956) (“[O]ur law
thinks it better to let the defamed plaintiff take his damages for what they are worth than to
intrust a single judge (or even a jury) with the power to put a sharp check on the spread of
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The ADA contacted the State University of Campinas regarding their concerns about Dr. Saad’s work, and the
University appointed an “Inquiry Commission” to investigate the matter. In August 2014 the Inquiry Commission
concluded that the results of the 2007 and 2011 articles were valid and that there was no evidence of dishonesty on
the part of Dr. Saad. The State University of Campinas provided the ADA with its final investigation report.
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The digital expression of concern was published on February 2, 2015.

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possible truth.”). For this reason, a prior restraint bears “a heavy presumption against its
constitutional validity.” New York Times Co. v. U.S., 403 U.S. 713, 714, 91 S.Ct. 2140 (1971).
There is no doubt that the relief Dr. Saad requests is a prior restraint. Indeed, the Supreme
Court has observed that “[t]emporary restraining orders and permanent injunctions—i.e., court
orders that actually forbid speech activities—are classic examples of prior restraints.” Alexander
v. U.S., 509 U.S. 544, 550, 113 S.Ct. 2766 (1993).3 Whatever interest Dr. Saad has in preserving
his professional reputation, it is not enough to overcome the heavy presumption against the
proposed order’s validity. This is precisely the type of circumstance in which the law forbids
courts from halting speech before it occurs. See Near v. Minnesota, 283 U.S. 697, 716, 51 S.Ct.
625 (1931) (declaring unconstitutional a court order preventing The Saturday Press from
publishing a defamatory newspaper); Krebiozen, 334 Mass. 86 (affirming denial of injunction
that would have prevented the publication of statements harmful to medical researchers’
professional reputations). The appropriate remedy in cases where a “publisher is to print a
libelous, defamatory, or injurious story . . . lies not in an injunction against publication but in a
damages or criminal action after publication.” In re Providence Journal Co., 820 F.2d 1342,
1345 (1st Cir. 1986).

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The Court sees no material difference between Dr. Saad’s request to enjoin the retraction of the articles and the
publication of the hard-copy expression of concern, and the request to order the removal of the online expression of
concern. Each form of Dr. Saad’s proposed relief would have the effect of preventing the ADA from expressing its
beliefs about the integrity of Dr. Saad’s research. Thus, by stopping the ADA’s future speech, the proposed TRO
constitutes a prior restraint.

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ORDER
For the foregoing reasons, Plaintiff’s Motion for Temporary Restraining Order and
Preliminary Injunction (Docket No. 2) is denied.

SO ORDERED.

/s/ Timothy S. Hillman
TIMOTHY S. HILLMAN
DISTRICT JUDGE

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