The Volokh Conspiracy
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Court Refuses to Block Medical Journal's Retraction of COVID Vaccine Study That Had ~150K Views
The court concluded that a retraction likely wouldn't breach any publication contract, and that under the circumstances a temporary restraining order would be especially unjustified given the publisher's First Amendment rights.
The disputed article appears to be Risk of all-cause and cardiac-related mortality after vaccination against COVID-19: A meta-analysis of self-controlled case series studies, and the Abstract currently reads:
Self-controlled case series (SCCS) is a novel study design uniquely equipped to ethically quantify the safety of vaccination. We sought out to perform a meta-analysis on all SCCS assessing mortality associated with COVID-19 vaccination in the immediate post-vaccination period. We included SCCS investigating the safety of COVID-19 vaccination and reporting all-cause and cardiac-related mortality. Three SCCS were located, totaling approximately 750,000 patients.
The pooled hazard ratio (HR) revealed no significant association of COVID-19 vaccination with all-cause mortality (HR = 0.89, 95% CI [0.71, 1.10], p = .28). Regarding cardiac-related mortality, the pooled HR suggests that COVID-19 vaccination is associated with an increased risk of cardiac-related mortality (HR = 1.06, 95% CI [1.02, 1.11], p = .007). Subgroup analysis showed that the male gender is significantly associated with an increased incidence of cardiac-related deaths (HR = 1.09, 95% CI [1.02, 1.15], p = .006). In conclusion, COVID-19 vaccination may be associated with a small increase in cardiac-related mortality, especially among males.
Here's the court's summary of plaintiff's factual allegations and the procedural history, from Marchand v. Taylor & Francis Group LLC, decided yesterday by Judge Diane Humetewa (D. Ariz.):
Marchand is a surgeon in this state, practicing gynecologic medicine, and a researcher with more than 120 published articles. T & F is a publisher of journals and books centered on topics that are academic, scholarly, or scientific. One of the journals published by T & F is called Human Vaccines & Immunotherapeutics (the "Journal"). The Journal publishes research on vaccines and immunotherapy with its primary audience being those in various medical professions and related fields. Marchand's article about the relationship between Covid-19 and death inducing heart disease was selected for publication by T & F on June 25, 2023. He paid T & F $3,175.00 to have it published for free online, or have it be an open access publication.
The journal received and published two letters to its editor criticizing the article and its methodology. Marchand was allowed to respond to the first letter and T & F published it as well. The second letter triggered corrections to the article. A back and forth ensued between the parties about the sufficiency of the corrections and whether the corrected article would be published.
At some point, during the back and forth on corrections, T & F told Marchand they might retract the article entirely. They also told him he could submit a response detailing his position on T & F's concerns by November 24, 2025. On that same day, Marchand filed his Complaint and the TRO [temporary restraining order] currently pending before the Court. He asks that the Court grant his TRO to prevent T & F from retracting his article. For reasons explained below, the Court will not do so….
The court concluded that there likely was no contract between the parties limiting T & F's power to retract an article—and that, even if there was a contractual requirement of a "full investigation" before a retraction, such a requirement likely wasn't breached:
In fact, it appears that after publishing Marchand's response to the first letter critical of his article, T & F then conducted a post-publication review of Marchand's article. After this post-publication review, Marchand was given another opportunity to provide a detailed written response to T & F's concerns that were unearthed by the review process. When Marchand protested incorporating additional corrections into his article, T & F explained the basis for these corrections and the difference between a corrected article and an addendum. Initially satisfied that Marchand's corrections complied with T & F's requests, T & F stated that they would publish the article.
However, T & F then alerted Marchand to yet another issue with his use of a "fixed-effects analysis rather than a random-effects analysis," which prevented T & F from publishing his corrected article. In July of 2025, T & F informed Marchand that after consulting with their data integrity editor, they found even more concerns with his article and gave Marchand a deadline of September 5, 2025 (later extended to September 14, 2025), to address the new concerns identified by the data integrity editor. Marchand complied with this request, but not to the satisfaction of T & F. T & F emailed Marchand that: "some of our major concerns regarding your article still remain unaddressed." In that same email, Marchand was asked to provide any new evidence he could to placate T & F's concerns by November 24, 2025.
Instead, Marchand filed the current Complaint and accompanying TRO. Nowhere in the above chronology can the Court find that T & F breached the terms in the guidelines that Marchand has identified. The Court finds that Marchand has not presently established a likelihood of success on this element….
It also concluded that Marchand had no legally viable negligence claim:
[T]he Court [cannot] find any authority supporting the proposition that a publisher owes a legally cognizable duty under Arizona negligence law to authors who publish in their publication. Absent a recognizable duty under Arizona law, Marchand has not shown he is likely to succeed on the merits of his negligence claim….
And the court added, in analyzing the "balance of equities" and "public interest" prongs of the TRO / injunction analysis,
Having found that Marchand is unlikely to succeed on the merits of his breach of contract claim, the Court is hard-pressed to find that the balance of equities favors Marchand.
Conversely, T & F's First Amendment rights certainly hang in the balance. Were the Court to grant the injunction, T & F would be forced to accommodate speech it may have no desire to accommodate or endorse. See Rumsfeld v. FAIR (2006) ("Some of this Court's leading First Amendment precedents have established the principle that freedom of speech prohibits the government from telling people what they must say."); NRA v. City of Los Angeles (C.D. Cal. 2019) (holding that compelled speech involved "violations where the complaining speaker's own message was affected by the speech it was forced to accommodate.")….
"Whereas the balance of equities focuses on the parties, '[t]he public interest inquiry primarily addresses impact on non-parties rather than parties,' and takes into consideration 'the public consequences in employing the extraordinary remedy of injunction.'"
While the Court recognizes the importance of the enforcement of contracts in a commercial transactions and settings, here Marchand has failed to sufficiently identify the enforceable terms of any agreement between the parties. And publishers like T & F have genuine First Amendment rights and concerns. The Supreme Court has long held that private publishers have a First Amendment right to control the content of their publications as they see fit, free from the hawkish eye of the government. Miami Herald Co. v. Tornillo (1974). Absent clear contractual obligations that would limit these rights, the Court declines to impose restraints on a publisher's editorial discretion, which would go against the very firmament on which the First Amendment stands. The public interest is best served by not granting Marchand's requested injunctive relief.
You can read the argument of Marchand's lawyer in favor of the TRO here.
