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.”

Curmie Contenders: That Isn't a Weapon Edition

Plato was a really smart man, but he banned poets (a.k.a. playwrights) from his utopian Republic because they represented as real that which was in fact untrue: that isn’t really Agamemnon or Antigone or Achilles up there, after all. Plato, in other words, couldn’t wrap his head around the idea of aesthetic distance. Now, I’ll forgive his not knowing a term that wasn’t going to be invented for another couple of millennia, but the concept is really basic: no deception is involved if both actor and spectator (or “reader,” in the terms of some postmodern theorists) tacitly agree that for a limited period of time and in conventionally prescribed ways, the actor will pretend to be someone he is not and the spectator will pretend to believe him. It can be both illuminating and fun, and the “falsehood,” such as it is, warrants less ethical soul-searching than taking your kids to see Santa Claus.

That said, today, apparently, we need to go over this material very slooooooooooowly: 1). a hand with the forefinger and thumb extended is not a weapon, even if you say “bang” or “pow”; 2). a piece of paper with a quarter of it ripped off is not a weapon; 3). a Hello Kitty product, even one labeled a “bubble gun,” is not a weapon, and talking about “shooting it” does not equal shooting it; 4). a collection of Lego blocks, however configured, is not a weapon; 5). imaginary grenades thrown at equally imaginary boxes aren't weapons, either. These statements are obvious to you, Gentle Reader. They are obvious to me. They are obvious to primary school students. Not so much to school administrators, however. (Deep sigh…)

Exhibit A: Rodney Lynch, age six, was suspended in December at Roscoe R. Nix Elementary School in Silver Spring, MD, for allegedly finger-shooting a classmate (he says she “shot” him first, and it was she who said “pow”—seriously, who cares?). A couple more students were suspended by another Maryland School a couple weeks later for the same heinous infraction: being a kid threatening behavior.

Lynch supposedly “threatened to shoot another student.” If that were true, of course, disciplinary action would be appropriate. It isn’t, of course, except in the fevered imaginations of the likes of Principal Annette Folkes, as evidenced by the fact that the accusation disappeared along with the notation in young Rodney’s permanent record when the boy’s parents put a lawyer on the case.

The later case, in Trappe, appears to have involved a game of (gasp!) cops and robbers. The father of one of the boys describes the school’s obvious over-reaction as “easily the most ludicrous thing I have ever heard of.” Yeah, pretty much, except perhaps for the district’s whining about not being able to discuss the matter because of FERPA. Or because such a statement would show the world what an idiot Principal Marcia Sprankle is. One of the two.

Come to think of it, though, these cases may be among the least insane to be discussed here. We move on to Exhibit B, which in my humble opinion is even more outrageous. You see, Melody Valentin, a fifth-grader in South Philadelphia, got screamed at by an administrator who claimed she could be arrested and initiated a search in front of her classmates. Her crime against humanity? Having a single sheet of paper ripped into the rough outline of a gun, which she was in the process of throwing away when an obnoxious little narc a classmate reported her to The Man. I confess that a sheet of paper with one quadrant missing does not immediately call the word “weapon” to my mind, but then again, I have an IQ above the temperature in Duluth in January. Clearly, I have no future in school administration.

And on to Exhibit C: this time the miscreant was a 5-year-old kindergarten girl who suggested to her friend that they shoot each other with her Hello Kitty bubble gun, which is, natch, made of pink plastic. She was allegedly suspended by the brainless trust at Mount Carmel Area Elementary School in Pennsylvania and ordered to undergo psychological evaluation, who described the incident as… get this… a “terrorist threat.” Somebody’s been hittin’ the funny Kool-Aid a little too hard.

What, really, is there to say in the face of such transcendent stupidity? Seriously, there are more brains in cracked jewel case than these folks are demonstrating. It is Stage 1 idiocy to care in the slightest whether little girls have or use bubble guns. Stage 2 manifests as censoring speech referring to actions which are a). entirely innocent b). still hypothetical and c). off school property. Stage 3, which ought to get you locked up for your own protection, consists of construing the actions of a kindergartener—any actions, any kindergartener—as even in the general vicinity of terroristic.

Alas, Gentle Reader, there’s an Exhibit D. Another kindergartner, this one a boy named Joseph Cardosa, attends Hyannis West Elementary School on Cape Cod. His crime against humanity? Making a gun out of Legos… at an after-school program. This being a first offense against the divinely inspired regulation that kids should under no circumstances be allowed to behave like kids, he was able to escape with a warning. A second crime of this earth-shaking magnitude will result in a two-week suspension for the program. After all, quoth the village idiot principal, the pseudo-gun was a “threat to other children and other children could have been scared.” No one apparently pointed out that “could have” is a pretty fuzzy term. And the fact is, of course, that the other five year olds knew perfectly well it wasn’t a real gun: they, unlike the adults of the case, seem to be able to distinguish reality from fantasy. (Note: this does not render the case of the little boy who shot himself with a real gun he thought was a toy any less tragic. But there’s a difference between a toy a child pretends to believe is real and an actual weapon that some idiot thinks needs to match her shoes, or some damned thing.)

When I started writing this piece, there were four examples of administrative lunacy. But I didn’t write fast enough… now there are five, and the cases are stacking up like cordwood. So: Exhibit E, and please, God, let me get this posted before there’s an F. So… 2nd-grader Alex Evans was suspended by Mary Blair Elementary School in Loveland, CO, for “[throwing a] pretend grenade at an imaginary box that had something evil inside.” This makes sense because Principal Valerie Lara-Black pretty clearly has an utterly imaginary right to be anywhere within cell phone range of a position of authority.

The school district rules are stupid enough, but individual schools can make add-ons provided they can come up with some restriction that makes no fucking sense at all. That’s what happened here, allowing local officials to outlaw not merely symbolic weaponry like “guns” made of single piece of torn paper, but also the completely invisible kind. Better not mess with this kid, though. He’s obviously got the whole invisibility cloak thing going on, and I’ve seen Star Wars, so I know how easy it is to allow the Force to be perverted to evil use.

There sort of is an Exhibit F, but this one is at least comprehensible. In the Bronx, PS 4 was placed into lockdown by police after a report that a student had brought a gun to school. It turned out to be a Nerf gun, but no one knew that—unlike in the other cases described here, where the imaginary grenade was known to be imaginary, the bubble gun to be a bubble gun, etc. Over-reaction? Probably. But at least an understandable one, especially given the fact that real guns can look fake as easily as fake ones look real.

What are real weapons? Well, the one that got left in a restroom by a newly-hired security guard in a Lapeer, MI charter school. The gun was reportedly unloaded… rendering it useless, of course, if the guard actually needed it as something other than a prop in a bad community theatre production of cops and robbers. There’s some question about whether the guns fired in the hallways in Cary-Grove (IL) High School are real: the report says they were starter’s pistols, but the argument was that students need to know what gunfire sounds like. Hint: not like a starter’s pistol. So the exercise was dangerous; we’re just not sure whether because actual firearms using actual blanks were used (here’s a listing of some of the deaths caused by using blanks) or whether it’s because students and teachers now erroneously think they know what guns sound like. In any case, these two episodes stand in sharp contrast to the obviously unthreatening behaviors that led to suspensions and warnings and similar consequences to schoolchildren who did literally nothing wrong.

Curmie voters, take note: some of these folks will be back at the end of December or the beginning of January.