Critical Mass

I've been in the legal publishing biz and the arts for a long time, and I am an adamant supporter of free speech, regardless of the speaker's message. That said, I don't think that free speech is really the issue here.

The ACLU long ago abdicated a neutral position in these issues. A quick look at their web site, as well as knowledge of their initiatives, and you'll see that the ACLU has an agenda that supersedes freedom of speech. The splash page of its website is an argument for the sexual and racial quota systems. As even a casual observer should know, the ACLU is involved in an inexplicable campaign to drive any symbol or discussion of Christianity from the public realm.

To understand the confusion of this organization, read this from the ACLU website:

"But historically, at times of national stress -- real or imagined -- First Amendment rights come under enormous pressure. During the Red Scare" of the early 1920s, thousands were deported for their political views. During the McCarthy period, the infamous blacklist ruined lives and careers. Today, the creators, producers and distributers of popular culture are often blamed for the nation’s deep social problems. Calls for censorship threaten to erode free speech."

Note the attachment to Marxism, and the insistence that efforts by the U.S. to defend itself against subversion from the Soviet Union amounted to "McCarthyism." This was a much more defensible position before the opening of the Soviet archives. We know now that it was not just a fantasy that the Communist Party was filled with spies and sabateurs. And we know that Communist Party infiltration reached the innermost circles of the U.S. government. This is by no means a defense of the actions of Sen. McCarthy. It's a statement of fact. The U.S. had a right and an urgent need to defend itself against a foreign power bent on infiltration and sabotage.

The problem here is an attachment to Utopian idealism, diverted here to a new target. Every generation seems to decide that the solution to a particular social problem will solve all of the world's ills. For the kids under 35, who grew up in the PC world and were saturated with feminist indoctrination, solving the problems of sexual abuse is purported to be the solution that will bring about Utopia.

I don't understand why Erin has decided to take on this issue. Obviously, Prof Hughes is so committed and so convinced that she knows the truth about a "suspected trafficker" that she wants to serve as judge and jury. I'm more afraid of the Prof Hughes of this world than I am of such a suspected trafficker.

Freedom of speech sort of ends at the point of accusations of criminal conduct. That is an act with the potential to damage another human. I have been a professional musician all my life, and that is an occupation that brings one into contact with all sorts of people, including pimps. I've known many of them. It is very easy for those who are outside the relationship between a pimp and his whores to make a wide variety of assumptions about why the pimp is a pimp and why the whores are whores. Rarely is this is simple issue. Some of the pimps I've known were very nice men. They should not be sent to prison or publicly humiliated without due process, just like any other citizen.

Stephen, why be concerned about defending the tatics of Senator McCarthy. By now we know he was right; when he made his initial speech in 1950, there were indeed communists in the bowels of our government and they were sending vital information to the Soviet government and many were in the pay of the GPU/KGB. And Nixon was also right in 1948 when he convinced the his fellow House committee menbers to pursue Alger Hiss. McCarthy eventually went a little whacky (but given what was at stake a little whackiness was in order)but initially he was on the money. And he scared the bejesus out of the liberal elites in the country because, as we are now finding out, they were either deeply involved in treason or had friends who were. I believe Ann Coulter is right when she askes: Can we finally get over our ideological and outdated view of McCarthy and give him the credit he deserves? That very question drives the left nuts these days but it is one that we need to visit to put much of what is going on today in proper perspective.

With your additional post on Professor Hughes, and having read the National Review Online article (see below) my initial comment is: Oh, the irony. Professor Hughes's "wolves" have a common thread: they articulate a position she disagrees with that centers on the issue of legalizing prostitution. Rather than conference attendees getting to hear what they have to say, she "exposes" the "wolves." Not that she can point to any actual crimes. No, some were "suspected," "investigated," "detained," but mostly they advocate things Professor Hughes disagrees with. Her implication is clear: these wolves should not be heard, for they are (almost) criminals who are forwarding the agendas of criminals. I guess academic freedom only belongs to those who are convinced they are on the side of "right." I agree with the first poster in this thread: it is the Professor Hughes's of this word who scare me.

The fact that Hughes's "wolves" are unnamed provides little in the way of a defense: she provides plenty of identifying information about them so that they could be identified.

But back to the matter at hand: is URI wrong here? Erin states that the URI is not obligated to publish defamatory information on its web site and then adds there is "no proof that this is what Hughes did." But the only way that is "proved" is when it becomes a court case! Doesn't an institution have the right to evaluate and refuse to publish speech that is potentially libelous (and I note they only did this after it was brought to their attention)? Would you argue the professor gets to make that call, and thus "bank" on the institution providing a defense?

There are aspects of this matter that are troublesome: if the institution truly believes the potential case has no merit then I think they are wrong to not support their faculty member.

But if professor Hughes truly believes she is not libeling anyone, she does indeed have the capability (with very little effort) to publish it herself on a non-institutional site, and I doubt URI would fear to provide a link to it.

NOTE: I couldn't find the "Wolves in Sheep's Clothing" article on the National Review Online site, but I did find URI's page with the article archived on archive.org. It's a twitchy site so good luck with this link:
http://makeashorterlink.com/?X6A831A78

Sorry for the bum NRO link. Hughes' article is at http://www.nationalreview.com/comment/comment-hughes100902.asp.

My point keeps getting lost in the shuffle. But it remains: What is most immediately at issue is URI's non-handling of the legal threat. Until they come up with a plan for handling a letter they received in October, they are asking Donna Hughes to suppress her own work indefinitely, and they are telling the rest of the faculty that all it will take to land them in the same boat is a threatening letter sent on behalf of someone who is offended by the opinions faculty are publishing on their university web sites. Sure, she can publish it online elsewhere, and that may be the best option if she wants it widely available. But that does not change the fact that URI really should have handled this situation promptly and fairly eight months ago, and did not.

Irrelevant, as far as I am concerned, are Hughes' politics and the fact that she was glad to see the "suspected trafficker" disinvited from the conference. Some readers see this as a free speech issue; Hughes, if I read her rightly, saw it as a case of fraud (the "suspected trafficker" was passing himself off as an anti-trafficking activist at the conference). Either way, it doesn't matter: Hughes is not the one who barred him from the conference. She merely alerted the conference organizers to his record. If there were censors, they were the organizers. If there was libel, then Interpol--the organization listing the suspected trafficker as a suspected trafficker--should be sued, not Hughes.

While I'm at it, here is a link to the other Hughes article URI doesn't want to have on its site and which Erin quotes (the important parts) from. Again, this is an archived copy from URI's site. If it doesn't work the first time, just back up a step and try again. Archive.org is also typically very slow.

http://makeashorterlink.com/?M1BA22A78

I don't understand why Erin has decided to take on this issue.

Because she's fair-minded and wants to expose academic suppression of speech, no matter who's responsible?

Apparently, Stephen, you only care about suppressed speech if you happen to agree with it. Much like the PC crowd you deride. Were the "disinvited" guest at the anti-trafficking conference to turn out to be a U.N. worker, I suspect your tone would change drastically.

Oh, and just had to comment on this: Some of the pimps I've known were very nice men.

Maybe to you, they were nice. No, I've never met those guys. However, pimps in general aren't known for treating their "girls" really well. So you'll excuse me if I take your assertion with a grain of salt.

I am rather torn on this issue. I agree that Prof Hughes should have the backing of URI in general. However, that backing does indeed have to come after a review of what she is putting out on the site. As an example should she be able to put out on the site the exact directions for making bombs or articles containing directions to the private home of those who wish to stay private or in this case the purported activities of those who are invited to be speakers at a convention when their case has not been decided. I think that in all 3 of these cases, Prof Hughes should not expect the URI to take on the case without her proving her inferences to the point that URI can support her inferences. If they cannot do that then they should recuse themselves. I do think they should tell her that they are recusing themselves at this point until her inferences are either proven or shown to be false but I do not think that she should be able to hide behind the university and have them take responsibility for her claims without their having examined them thoroughly. I know that she does expect academic freedom, but she also expects support from the URI and I don't think that they can offer that unless they know whether they are being led down the primrose path or not. They should not subject the state of RI or the university to actions which they have not decided are worth being subjected to. Academic freedom in this case in my opinion has to take the back seat to the rights of the state and the student body rather than the rights of the professor. Why should they be held up because of her claims if they know that the claims are false or insupportable. Suppose that the articles in question referred to treasonable actions or actions that were knowingly false. Would she then expect the university to put its name and reputation on the line?

(Quotes are Erin's from her post in this thread)

"My point keeps getting lost in the shuffle."

Then I will address your point directly!

"What is most immediately at issue is URI's non-handling of the legal threat."

They HAVE handled it, though not completely. With the cooperation of the professor they removed the articles at issue. What they haven't done is followed through with a final resolution.

"Until they come up with a plan for handling a letter they received in October, they are asking Donna Hughes to suppress her own work indefinitely"

Refusing to be complicit in a potential libel is hardly the same as suppressing someone's work. Hughes can easily publish her work.

"they are telling the rest of the faculty that all it will take to land them in the same boat is a threatening letter sent on behalf of someone who is offended by the opinions faculty are publishing on their university web sites."

The issue is not about someone being offended by an opinion, it is about someone suggesting they are being defamed on the institution's web site. That strikes me as a couple orders of magnitude difference. If we accept this is a "temporary" period where URI is figuring out what to do, I don't see it as particularly chilling on future faculty speech at URI.

"But that does not change the fact that URI really should have handled this situation promptly and fairly eight months ago, and did not."

I think URI did a lot right eight months ago. Where they have fallen down is in providing the professor a definitive final answer and articulating a policy that would cover future similar situations. I agree they have taken far too long to do do that. Since the articles are readily available elsewhere, I don't see much harm in the delay, however, except potentially to URI's image.

"Irrelevant, as far as I am concerned, are Hughes' politics and the fact that she was glad to see the "suspected trafficker" disinvited from the conference."

Irrelevant to the matter at hand, yes. I just found it interesting that someone claiming censorship works to keep the voices of those with whom she disagrees out of her field's conferences. That's MY read of her intent based on the "Wolves" article.

Some closing comments: I am a (non-academic) senior administrator at a college. I find this topic interesting because it is exactly the type of issue that ends up on the senior staff's plate to resolve.

You may be surprised to learn that I personally don't think Hughes's articles were libelous and, had it been raised at my institution, I would have argued that we reject the law firm's kind request to remove them from our web site. But my peers, and our legal counsel, may not have agreed.

Charged with balancing the financial well-being of an institution with an issue like academic freedom, against a backdrop of an issue that I would argue is grey, it is not surprising to me what has happened. The administration moved quickly to remove the immediate threat and then started moving slowly toward a final resolution.

Except for moving too slowly, I can't otherwise condem URI for the decisions they've made so far, even if I may personally disagree with some of them.

...nor will I condemn them!

Erin, this has been a fascinating thread. A few random comments if you don't mind.

Like, Reginleif, I appreciate the fact that you have brought this issue to the fore - even if Professor Hughes might not fall on your side of the ideological/cultural/social divide. It stands as a stark rebuttal to previous (unfair) comments in other threads that imply that you are interested solely in protecting conservative speech (whatever that means). It has always been clear to me that your interest was in academic speech - without regard to any other adjectives that might modify it. As it happens, threats to speech on campuses today tend to originate on the left. As a knee jerk lefty this has always saddened me. This case falls on the other side of the lines - much like the link I recently sent you about the NAACP group at CU.
I do think URI has responded to the threat letter. They removed the articles from the site. What they haven't done is explain this response (fully) either to Professsor Hughes or to the public. That may have been the wrong response and I agree with you that URI's actions do have serious implications in the free speech arena.
I would stand right behind you on this one if this case had purely domestic implications but the the threat of legal action in the U.K. If a libel action were to be brought in the U.S. URI would need to do two things. They would need to establish that the plaintiff was a public figure in some way. He/she does not need to be famous but sufficiently well known in some way to merit the protection of a line of cases starting with NY Times v. Sullivan. Depending on the plaintiffs this may be an easy or difficult burden. If they do this they do not need to prove the veracity of the remarks. They only need to prove that the remarks were not made with malicious intent. The burden would be on the plaintiff to prove malice. That would almost certainly insulate URI. Given Professor Hughes' history - she may have a more difficult time. :) The UK does not afford defendants the public figures defense. Once the plaintiff establishes that the remarks are defamtory (and accusing someone of trafficking in sex slaves is no doubt presumptively defamtory) the burden switches to the defendant to prove actually the truth of the remarks. This is an extremely difficult burden. The fact that Interpol may suspect these persons might not be sufficient. (There is a fascinating case involving author/politician Jeffrey Archer. He won a huge judgment against the Daily Mail [or Mirror] only to have it overturned later when it turns out that a number of witnesses (perhaps even Archer) lied under oath and that the allegations were true. If I am not mistaken Archer ended up in jail.)
Last, (sorry I am going on so much), I agree with you that URI and every other academic institution should do everything possible to preserve and protect the free speech interests of their professors and staff. I also agree that they should act in this manner unless they have a very compelling reason to do otherwise. I do not know enough about the actual facts or their reasons to know for sure if this is the case here. Perhaps it is the lawyer in me that tends to give them the benefit of some doubt here. They certainly owe their people a full and complete explanation as to why they sometimes do not act accordingly. URI did not act accordingly here. They may or may not be faulted for that. They certainly may be faulted for not having a full and complete discussion with Professor Hughes about their actions. [This assumes they have not. It occurs to me that she may have been kept in the loop and just does not like the answer she got.]

What is most immediately at issue is URI's non-handling of the legal threat. Until they come up with a plan for handling a letter they received in October, they are asking Donna Hughes to suppress her own work indefinitely...

I disagree with this, for a couple of reasons.

First, and most generally, one can support freedom of speech and academic freedom while believing that those rights are appropriately limited by restrictions on libel. There is no necessary inconsistency or hypocrisy on the part of URI here.

Second, support for free speech and academic freedom does not, to my mind, imply a commitment to supply a platform for that speech. Certainly this is true in general: Owners of printing presses are not required to provide their facilities to all and sundry. Perhaps an argument can be constructed that the relationship between professors and their employer universities is such as to make them a special case; but offhand none occurs to me. In the absence of a persuasive argument to the contrary, this means, in this case, that URI is not required to supply a website for the professor. I simply do not find it persuasive to claim that, by refusing to allow her to publish her views on their website, URI is "suppressing" her speech. She is free to make known her views by any means available to her, but not to require that others make those means available to her, particularly with the spectre of libel hovering over the proceedings.

No one is saying URI should be hosting libelous statements. I am saying that they should be willing to support the same speech that the Constitution protects.

My argument that Hughes' academic web site should be understood as an expressive forum is based on a number of recent cases involving professorial websites that published controversial but protected speech. See in particular Indiana University's defense of business professor Eric Rasmusen's site (last fall it was accused of disseminating hate speech when Rasmusen expressed less than liberal views on homosexuality). See also FIRE's website for its successful defense of a Penn State professor who was warned against publishing his pro-war views on his faculty website.

If Hughes' speech is libelous, I don't defend it. I have never defended libel on this site. But if it is protected speech it ought be allowed on URI's server. The AAUP itself states that universities have an obligation not to limit faculty's expressive rights to publish their research electronically. What they mean by this is that universities should not be in the business of regulating constitutionally protected content on faculty's university-owned websites.

Stolypin's comments on British libel law seem to me most relevant here. Standards of proof are different there, and it sounds like URi is trying to assess whether speech that would not rise to the level of libel in the states would be problematic over there.

If it turns out that URI is not prepared to support Hughes in a potential libel action located in the UK, then this case has just become a very interesting moment in American higher education's commitment to understanding the world wide web as a space where the principles of free expression and academic freedom apply. If universities are not prepared to defend expression that passes constitutional muster here but may not be defensible--or at least readily defensible--elsewhere, then they face the question of whether they want to be in the business of web hosting at all.

Lots of good food for thought.

"...when it turns out that a number of witnesses (perhaps even Archer) lied under oath and that the allegations were true. If I am not mistaken Archer ended up in jail.)"

Yes, you're correct, Lord Archer was convicted of perjury. He only got out of prison fairly recently, I believe.

Thank you for the update Dave J.

Could one of you legal folks please explain what possible jurisdiction UK could have in this matter? Or the plausibility that Rhode Island law enforcement would hand over for extradition someone who published something on a webserver physically located in RI and having a domain name gegistered to a Rhone Island education institution? Isn't the inability (or inadvisability) of Hughes' (or the entire administration of URI) travelling to the UK about the worst that could happen? I remember the Canadian government raging about the Detroit TV stations ruining their news blackout about that big murder trial a while back, but they didn't send the Mounties on a kidnapping infiltration mission, did the?

Good grief--ditty sbiyt sll yhr dypor.

Uhh, I mean, sorry about all the typos!

Kirk, this would be a civil suit for the tort of libel, not a criminal matter, so no law enforcement or extradition involved. One could argue the English courts have jurisdiction (concurrent with plenty of other courts elsewhere) because the publication was in some sense in England (it could be read), and the harm to reputation occurred in part in England. I don't claim to be an expert on cyberlaw jurisdiction, but it's my understanding that it's not a complete stretch.

If Hughes or URI either defended the suit in England and lost, or failed to appear and had a default entered against her, the plaintiffs could then (in theory at least) take the English judgment and seek to enforce it not only in Rhode Island, but anywhere where the defendants' property was located. As pointed out above, defamation judgments from England and some other common-law jurisdictions are probably not going to be enforced by courts in the US because that would essentially allow an end-run around the heightened burden of proof required by the First Amendment, as first established in New York Times v. Sullivan. Contrarily, I expect they might give effect to a judgment entered in Canada, since (I believe) the provision in the Canadian Charter of Rights and Freedoms analogous to the First Amendment has been held to impose a similar requirement. I may not be right about this, but I haven't had heard of libel forum shopping into any Canadian province, so while I'm speculating, that would be the simplest explanation.

If the court in the receiving jurisdiction determines it's required to enforce a foreign judgment, it would enter a judgment of its own giving effect to it, which the plaintiffs could then use to record a lien againt any of the defendants' property there, and then foreclose on the lien, forcing a judicial sale to satisfy the amount of the judgment.

Dave J: You said it far better than I did!

So I dodge the "Stolypin necktie"? ;-)

Absolutely :-) Now that the Tsar is dead I no longer feel the need to play hangman.
(I really do need to re-think my nom de blog.)

I don't believe the UK can decide a libel case against material hosted on a US server. The French tried to control material hosted on US servers that violated French hate-speech law and were told to take a hike.