We recently wrote about how academic publisher, Edwin Mellen, was both suing an online critic as well as having its lawyers send highly questionable threat letters to blogs and commenters who were criticizing the company. As part of that, we were disappointed to see the website Scholarly Kitchen, a blog of the Society of Scholarly Publishing, cave in the face of legal threats and pull down the blog post when it was clear that the post broke no laws (the threat letter even admitted as much). The board of SSP has since talked about it and agreed to reinstate the blog post.
For many reasons I won't go into the ingredients of the sausage by explaining why the posts came down and why they went back up. I will say that the Board and the Scholarly Kitchen volunteers stand behind Rick's posts. The Board also stands behind the business and editorial decisions to take them down last week, until we could gather our busy volunteer leaders to fully evaluate the situation.
I can understand why a blog might pull such a post after getting such a letter. It's no fun to be the target of a legal nastygram, no matter how sure you may be that you're right. Even if you know with 100% certainty that you would win any such lawsuit, just the very threat of one could be attention, time and money draining. This is why such legal nastygrams can often be so effective in creating chilling effects around speech.
That said, I also think it's important for people to recognize the value of standing up for their rights in the face of such threats. Otherwise those rights get eaten away. On that note, I think that SSP could have and should have also reposted the "comment" which they say they took down. As we discussed in our initial article, Kristine Hunt's comments (which were actually mostly supportive of Edwin Mellen) seemed unlikely to reach the level of defamation -- but, much more importantly, this has no bearing on SSP's liability. Section 230 of the CDA is pretty clear that, as the service provider, they are not liable for such comments, even if they are aware of them and leave them up. It is, of course, SSP's decision as to whether or not to remove any comments (or posts) on its site, but I'm a bit surprised they'd remove that comment when the caselaw on Section 230 is pretty clear. Some courts have even ruled that sites have no obligation to remove such content even after the statements have been judged to be defamatory (though that's not agreed upon across the board). But, at this stage, merely on accusation, SSP is clearly protected by Section 230, so it's unfortunate that they still chose to remove that comment.
Well here's a story that might fit in with what our friend Ken White at Popehat generously refers to as the activity of censorious asshats. There's so much bad activity in this one story, it's almost difficult to know where to start -- so let's actually work backwards and reveal each new layer of censorious activity one step at a time. It begins with this: the blog, Scholarly Kitchen, from the Society of Scholarly Publishing, published a blog post this morning, saying that it had removed some posts from its site due to threatening letters from a lawyer representing Edwin Mellen Press, an academic publishing house. While I disagree (strongly) with Scholarly Kitchen's decision to remove those posts, they did at least publish the letters from the lawyer, Amanda R. Amendola, which we will republish here:
There is all sorts of wrongness here, but that only starts us down the rabbit hole. First of all, it's pretty weak that Scholarly Kitchen folded after receiving a mere legal letter, which doesn't even allege any actual law breaking. As the letter clearly states, they're just upset about what was written, but even they don't think that the original blog post reached the level of defamation. Instead, they just don't like it, and are promising that "we are putting you on notice that the moment Mr. Anderson publishes or provokes any statement about our company or authors that is the slightest bit defamatory, we will pursue legal action not only against him, but your organization as well." And Scholarly Kitchen folded and took down the posts. Nice job, Edwin Mellen Press for creating chilling effects on free speech. Also, claiming that if he publishes something that then provokes a defamatory statement that they can sue... well, that's a stretch.
Next up, this line is pure crap:
We are bringing this information to your attention because you are the publishers of both Ms. Hunt's statement and Mr. Anderson's blog. As such, you have a legal obligation to monitor these types of comments. In order to limit any damage from such events, we request the immediate removal of Ms. Hunt's comments from your blog.
With regards to Hunt's comments, in particular, Amendola is simply incorrect. Either she does not know about or simply chooses to ignore section 230 of the CDA and the piles upon piles upon piles of case law that make it clear that a blogger is not the publisher of user comments and has no legal obligation to monitor them. But, in either case, she's wrong. As for whether or not that applies to Mr. Anderson's blog post, that's at least a little fuzzy. It is possible that the blog post itself could lead to liability for the owner of the blog, but there are also numerous cases that involve people forwarding defamatory emails, in which the courts have found that doing so is protected by Section 230. Is publishing a guest blog post the same as forwarding an email? Seems like there would be a pretty strong argument for that, but either way, the argument does not matter here since Amendola has already admitted that they can't find anything defamatory in the original blog post by Anderson.
Of course, this made me curious. What was in that original blog post. While a cowardly Scholarly Kitchen had caved and taken down the post, Google cache still has it, at least for now. Since the text of it and the comments beneath it are critical to understanding all of this, I've saved the text as a PDF and embedded it here:
It quickly becomes clear that the threat letters are even more dubious than initially suggested. Anderson's post is directly about an interaction he had with Dr. Herbert Richardson, the owner of Edwin Mellen Press, in which Richardson was asking why Anderson -- the interim dean of the library at the University of Utah -- was purchasing fewer Edwin Mellen books. Anderson pointed out his reasons: that he wasn't impressed with the quality of the books and felt the prices were too high. He also turned down a proposed "gift" of books. The conversation moved on to a discussion about a librarian who had worked there before Anderson was there, named Dale Askey. And that's where it comes out that Richardson was upset about a blog post Askey had written years earlier about Edwin Mellen Press, which has since been removed but is available as a part of the lawsuit. Lawsuit? Yes, hold on, we're getting there.
Anyway, there's nothing in the post that I can see that's even close to defamatory. Anderson is telling his recollection of a conversation from a few months earlier, including a few statements of opinion about the quality and price of EMP's offerings (he's not impressed by either). And then he discusses the lawsuit -- which we'll get to (I promise). But first, there's the comments. Remember, according to Amendola, representing EMP, comments from Kristine Hunt were libelous. Here's the amazing thing about that comment though: it appears to actually be one of only two commenters in the whole thread that is at least mildly supportive of EMP! While she does make a few claims that could be seen as statements of fact, the point of her comment was actually to defend EMP in noting that there is room for publishers like EMP in the market. The thanks she get is to be threatened with a defamation lawsuit?
Also, there is one other "positive" comment in the thread, from a "Thomas Anthony Kelly." However, as other commenters have noted, nearly the identical comment from the same "Thomas Anthony Kelly" can be found on on a bunch of articles and blog posts about the Askey lawsuit (yes, we're still getting there), raising at least some suspicion about who is diligently posting an identical comment, supportive of EMP, on many stories about a defamation lawsuit filed by EMP.
Finally, on to that other lawsuit, which Richardson filed against Dale Askey and his current employer, McMaster University. You can see the details embedded below, but it includes Askey's original blog post that explains his own opinions of EMP (and which was written before he was employed by McMaster, even though EMP argues that McMaster is vicariously liable for Askey's statements). EMP is seeking $3 million -- which is an impressive sum in response to an experienced librarian basically stating publicly his opinion that they publish crappy books. While defamation law is definitely messier up in Canada, where the bar is much lower than it is in the US, it still seems pretty ridiculous to argue that the blog post was defamatory (and even that the post is "defamatory in its tone" -- a tone can be defamatory?).
Within the blog post in question, as attached to the lawsuit, EMP's lawyers "underline" the allegedly defamatory sentences, many of which appear to be clear statements of opinion. For example: "I find myself amazed at the durability of Mellen" or statements that are about his own actions and can't be defamatory at all. Example: "I made a snarky comment about Mellen on a mailing list." How is that defamatory? Furthermore, reading through the blog post and Askey's further comments, it also looks like many of the claimed "defamatory" statements about Mellen in the lawsuit are taken out of context.
For example, it says the claim that EMP is a "vanity press" is a defamatory statement. But, in the blog post, he actually writes: "No, they are not technically a vanity publisher..." And, even if he claimed they were, it's difficult to see how that would rise to the level of defamation. Also, pretty much all statements about quality are clearly statements of opinion.
Either way, as noted in the now deleted Anderson blog post, this particular lawsuit has generated quite a storm of publicity against Edwin Mellen Press. Inside Higher Ed wrote about the case, highlighting significant criticism for EMP's decision to sue, including from James Turk, the executive direction of the Canadian Association of University Teachers, who found the move to be "deeply concerning" and noted his concerns that it was an attempt to "silence Askey's exercise of academic freedom by legal action."
It should be noted, by the way, that it's not just "academic freedom" that's at stake here, but pure free speech. McMaster University has noted that it stands behind Askey and that it believes strongly in both academic freedom and individual freedom of speech. Meanwhile, the Association of Research Libraries and the Canadian Association of Research Libraries have both also put out a statement in support of Askey and against Edwin Mellen Press. Martha Reineke, a professor at the University of Northern Iowa, even put together a petition asking EMP to drop the lawsuit.
Oh, and there's one other interesting tidbit in all of this: It's come out that Richardson did something similar 20 years ago, to disastrous results. As Anderson noted in his original blog post:
In 1993, Dr. Richardson brought a similar suit against Lingua Franca magazine in response to an article (not available online) by Warren St. John, titled "Vanity's Fare: How One Tiny Press Made $2.5 Million Selling Opuscules to Your University Library." Dr. Richardson lost that suit. In 1994, he was found guilty of gross misconduct by an academic tribunal and fired from his tenured position at the University of Toronto; his press subsequently published a book about the affair titled Envy of Excellence: Administrative Mobbing of High-Achieving Professors.
So a similar effort two decades ago didn't work out that well. Though if you click through that link, the article from the Times Higher Education lists out a variety of other claimed misdeeds by Richardson -- whom they claim was the first tenured professor fired from the University of Toronto in 25 years. It says he was fired for "conflict of interest and the abuse of a four-month paid medical leave in 1993' when investigators found that he was engaged in outside activities.
Of course, he was able to continue building the publishing house. This time, however, with the internet broadcasting this story far and wide when the lawsuit was originally filed, along with this latest censorious move to shut down another critical blog post, it makes you wonder if any university library will ever want to buy EMP books again. His own actions are leading to much greater publicity over these questionable lawsuits and what clearly appear to be attempts to use the law and legal threats to silence criticism (even mild criticism).
In the end, there are so many wrong moves in this story, it's impossible to highlight the worst one. However, it's really disappointing to see a site like Scholarly Kitchen immediately cave on such a questionable threat. Furthermore, Amanda Amendola should know better than to send out threat letters on such a flimsy basis. But, at the core of this, it appears that Richardson has a history of reacting poorly to criticism. But, as we've pointed out over and over again, just because you don't like what someone says about you, it doesn't mean you get to sue.
