Saturday, February 9, 2013

It's Not Libel If It's True

Throughout most of what we now think of as the Golden Age of Athens, the City Dionysia, known today primarily for the production of the tragedies of Aeschylus, Sophocles, and Euripides, also included comedies. Specifically, these were Old Comedies: the topical, satirical and vulgar works we now associate almost exclusively with Aristophanes, the only Old Comedy playwright with even a single play available to us intact. I mention this because this state-sponsored self-mockery really was a symbol of the strength of the polis.

We see this phenomenon play out in our own day, not simply in snarky (and often accurate) comments that some anti-gay crusader must be a little worried about his own sexuality, but also in more deeply-rooted societal self-images. Witness, for example, the aftermath of 9/11. The tangible symbol that we were going to be OK was when David Letterman returned to telling jokes about George W. Bush. When you’re in trouble, you don’t joke about the President; when you start feeling all right again, the comedy begins to flow.

Moreover, most of us place a high value on the ability to weather the storm, to be criticized and to retain one’s ethical sensibilities and one’s sense of perspective. No one who has ever stood for anything has made it through life without taking a public pounding. The Internet has made these episodes more frequent, and most of us have adapted reasonably well. Not so the folks at the Edwin Mellen Press, whose reputation as a scholarly publishing house just took a self-initiated hit.

In August of 2010, Dale Askey (left), then a librarian at Kansas State University, posted an article entitled “The Curious Case of the Edwin Mellen Press” on his personal blog. Askey described Edwin Mellen as a “vanity press” (technically not true, but it certainly shares certain characteristics with vanity presses: I’ve called it a “first cousin of a vanity press” for years), with “few, if any, noted scholars serving as series editors” (arguable), benefiting largely from librarians not returning books sent for approval at “egregiously high prices” (their prices, at least for non-library buyers, are higher than most, but not by a lot; I can’t speak to the approval book argument).

Adults working for the Edwin Mellen Press would, perhaps, argue the points on the blog’s comments section, then go back to publishing books. Ah, but that would be adults. The press filed a multi-million dollar lawsuit against not only Askey, but McMaster University, where he is now employed, because they didn’t immediately make him take the post down. No, I didn’t make that up: they’re suing the university for not violating the freedom of speech and academic freedom of one of their employees by forcing him to take down a private blog post he made before they’d ever heard of him.

There is a separate suit filed by Mellen’s founder against Askey alone, presumably having to do with comments on the blog post. Since the post has been taken down—Askey won’t say when or under what circumstances—it’s impossible to know the details. [EDIT: turns out a capture of the post is online, as part of the documentation for the suit, here.] But Jake New of the Chronicle of Higher Education reports that at least some of the comments in question were made by other people, not Askey himself. Mellen is saying, apparently, that Askey was under an obligation to remove negative material posted by others. I’m no lawyer, but I do recognize the aroma of bovine feces when I smell it.

New continues, “The notice goes on to allege that the press asked McMaster to remove the post and for an apology, but that the university did not oblige and then ‘pursued an Internet campaign to put the Press out of business.’” Uh huh. It strikes me that they’re doing a pretty good job of going out of business without any assistance.

The Mellen website claims that their books “qualify for tenure promotion.” Maybe that’s supposed to read “tenure/promotion”? Anyway, their books help a faculty member’s case if and only if the university in question says so. And, frankly, there are a lot of people on those tenure and promotion committees who aren’t going to be terribly impressed. That’s why, for example, a poll in which readers were asked to rank the most-respected publishers in philosophy places Edwin Mellen dead last.

The comments on the blog piece about those rankings—here we are at comments, again—tell an important story, as well. Witness “Chris,” who would regard an Edwin Mellen listing on a CV as a “significant negative.” More significantly, check out the commentary of Leslie Green, Professor of the Philosophy of Law and Fellow of Balliol College, Oxford:
The Edwin Mellen Press may well, as this survey suggests, have the worst quality philosophy list; but it tops the league in disgraceful conduct in defense of its dismal reputation.

A professional librarian at McMaster University’s library complained, in a 2010 blog-post, that Mellen was a poor publisher with a weak list of low-quality books, scarcely edited, cheaply produced, but at exorbitant prices. Librarians are expert at making such judgments; that’s what universities pay them to do. And the post made a key point about the public interest: ‘in a time when libraries cannot purchase so much of the first-class scholarship, there is simply no reason to support such ventures.’

No one likes bad reviews; but Mellen’s approach is not to disprove the assessment, pledge to improve its quality, or reconsider its business-model. It is to slam McMaster University and its librarian with a three million dollar lawsuit in the Ontario Superior Court, alleging libel and claiming massive aggravated and exemplary damages. The matter is pending.

The lawsuit is threadbare. With respect to the parts of Mellen’s list with which I am familiar, the librarian’s statements noted above are all true and the quality judgments are correct. (And this survey suggests that would be a common assessment.) Moreover, on the facts in this situation, it is obviously fair comment, and public policy considerations strongly suggest that university librarians enjoy a qualified privilege with respect to their assessments of the books they consider buying for their universities. It would be a disaster for universities, students, researchers and the taxpayer if aggrieved publishers were permitted to silence discussions of the quality of their publications by threats of lawsuit.

McMaster University’s response to this appalling tactic has been surprising. Public silence. No one at McMaster has spoken in defense of the librarian or the University; no University administrator has pushed back against the crude threat to academic freedom that this represents. (But then the President of McMaster’s list of the seven ‘McMaster Principles’ omits any mention of academic freedom.) Are the McMaster faculty, administration, and faculty associations already so cowed by libel-chill that they are afraid to speak up? Or are they unaware of Mellen’s attack? Or—and this is just as worrying—is it that McMaster values its professional librarians so little that it is willing to let them bear the brunt of such harassment, so long as the University itself can avoid vicarious liability?

Let’s hope someone at McMaster forcefully says ‘enough’ to this sort of bullying. Universities have a negative duty not to abridge the academic freedom of their members; they also have a positive duty to see to it that others do not do it either.
Don’t expect me to improve on that analysis, Gentle Reader, except perhaps to point out that SLAPP lawsuits really piss me off, and that the press has squandered the respectability it did have. Publishers ought to be all about the unfettered exchange of ideas, ought to be passionate about free expression, ought to champion the rights of those who speak the truth as they see it. Instead, they have demonstrated beyond all doubt that they aren’t the slightest bit interested in any of those ideals: they want to pretend to do so as a means of making money.

They also confirm one of Curmie’s go-to maxims: if you have to tell me, it ain’t so. And they’re spending a lot of energy telling us they’re not a “dubious publisher.”

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