It has been a tough year for science. On the social-science front, it seems that we have entered a phase where no one believes the polls. To conservative Trump supporters, the consensus of data showing the President well behind his Democratic challenger, even in Trump’s must-win swing states, just reflects the “fake news” of the mainstream media. On the other hand, liberals, still shell-shocked from the unexpected 2016 election result, have a “Won’t Get Fooled Again” attitude toward these polls. In the hard sciences, of course, we have the pandemic, where beliefs about its severity, its spread, and our methods of protecting ourselves, all seem to depend on our political stripe more than our scientific discernment.
An uneasy relationship with science applies to a number of issues including climate change and systemic racism. As a country, we seem to be developing a strong proclivity for simply ignoring science when it goes against our preferences. This idea, “science denialism,” is the subject of a recent article by Law Professor Brie Sherwin of Texas Tech University (Sherwin, 2020) focused on the habitual rejection of science in the current coronavirus context. Her thesis is that this denialism has reached dangerous levels on a number of fronts, as the science is blurred with the morality and the political and legal implications that come with accepting science. While our court system has a gatekeeping function in the form of the Daubert standard for expert testimony, the author argues that society needs the same. “We can no longer ignore the playbook of science denialism,” she concludes. “To effectively combat the war on science, we must engage in effective advocacy and techniques designed to call out science denialism when it occurs.” In this post, I will consider what that might mean in the courtroom.
One premise of the article is that the courtroom is one arena where the fight against science denialism enjoys relative success. Due to the Supreme Court precedent established in Daubert v. Merrell Dow Pharmaceuticals, the judge has a gatekeeping function on experts. At the same time, science denial is a broad social attitude that may be carried by jurors, judges, or witnesses. So here are a few critical contexts where it may crop up.
Denialism by Your Opposing Expert: When it is an expert’s role to primarily defeat the conclusions being offered by another expert, then it can be tempting for that expert to lean on some of the broad social attitudes that are skeptical of science itself.
Denialism by Your Judge: The article includes examples of experts being excluded in some cases, even when they have peer-reviewed data but have relied on techniques like modeling that may not be fully understood by the courts. In addition, one could say that the voir dire process’ reliance on self-diagnosed bias is also a form of science denial.
Denialism by Your Jury: While a Daubert-empowered court does serve as a gatekeeper, that addresses the risk that jurors might simply accept bad science just because it is dressed in the trappings of science. In some ways, that is the opposite of the problem of science denialism. The risk is still high that a juror may simply discard scientific expert testimony when it runs counter to that juror’s preferred verdict.
Science often suffers from a communication challenge, and denialists will take advantage of that. Professor Sherwin’s point is that, in the current context, those advancing and defending science cannot just be content with the scientific method, but also need to use all of the rhetorical aids. She notes, “Conveying the importance and meaning of scientific research to the public should also involve the tools of persuasion.” Discussing Aristotle’s forms of artistic proof — ethos, pathos, and logos — she emphasizes that it is not just logic that influences, but motivation and credibility as well.
Part of the solution is to sensitize audiences by calling out the rhetorical tactics used by science denialists. A list of five such techniques come from Dr. Pascal Dithelm and Dr. Martin McKee. The following are useful to look for, prepare against, and call out in situations where an actor or an audience might be susceptible to a reflexive rejection of science.
Conspiracies: Seeing everything as a plot — i.e. the theory that Bill Gates or George Soros is behind the coronavirus escaping from a Chinese lab — can be part of a denialist’s mindset. It also accounts for its self-sealing nature: If you are denying the conspiracy then it just means you are part of the plot.
Fake Experts: The author provides examples of the efforts of the tobacco and energy industries to cultivate and promote their own pools of credentialed experts who then legitimize their own favored conclusions .
Selectivity: Denialists will sift and cherry pick through a very high volume of science in order to find the few unrepresentative examples that support their point. If ninety studies go one way, we will hear about the one study that goes the other.
Impossible Standards: Setting the standard that science must be certain and answer all questions is another tool for denying it. The “limitations” section at the end of a research article, for example, can be read naively as, “Don’t believe any of this.”
Misrepresentation and Fallacies: The last tool is probably the simplest, and it comes down to simply saying things that are not true. “It affects virtually nobody,” the President said about coronavirus, after more than seven million Americans had gotten it, and more than 200,000 had died from it, and just before he himself got it.
Knowing the techniques of denial can be a good starting point. But ultimately, scientists in and out of the courtroom have to persuade. Professor Sherwin points to research showing that Americans are still persuasible on science when it is presented in an understandable and relatable way. “Those who are united by a common interest in effectively communicating the truth in a post-truth world, must create a system to allow this to happen” she concludes, “Holding science deniers accountable and employing rhetorical tools as a method of gatekeeping in society is the first step to changing this culture.”
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