Critical Mass

Rhode Island update

Readers will recall the case of Donna Hughes, the University of Rhode Island women's studies professor who was asked to remove two articles from her university web page after they drew a libel complaint from a London law firm. The articles in question had both been published elsewhere; Hughes was offering copies of them on her URI-sponsored site in order to make them more accessible than they otherwise would be. Last fall, Hughes agreed to remove the pieces that drew the legal threat while URI administrators evaluated the situation. When they still had not completed their evaluation six months later, the ACLU stepped in in Hughes' defense. Debate about the URI situation was heated here at Critical Mass. You can read my posts and readers' comments here, here, and here.

URI's president, Robert Carothers, has now issued a policy statement designed to address the questions Hughes' case has raised about liability and university-based web publications. It's lengthy, but I'm reprinting it in full so that readers can trace the full train of URI's thinking. While Hughes continues to await a determination on her case, readers are welcome to peruse and comment on the policy statement that has arisen out of it.

MEMORANDUM

Date: June 11, 2004

To: Frank Annunziato
Executive Director, URI AAUP

Faye Bartels
Chair, URI Faculty Senate

From: Robert L. Carothers
President

Subject: Policy on Personal Web Pages

Recently, the question has been raised regarding the University’s policy on personal web pages and the consequences which may flow from the use or abuse of such pages. As defined in the University Manual, personal Web pages are “Web pages developed by students, faculty and staff and contain non-official information about the authors, including their backgrounds, interests and/or opinions” (4.1). Section 4.2 continues:

“Responsibilities: A personal Web page is the responsibility of its author rather than of the University. It can be hosted on any computer regardless of the machine’s affiliation with the University. Every personal Web page stored on a University-owned computer or computer that depends upon University-owned communications for access must include the following disclaimer on its top-level Web pages: This personal Web page is not an official University of Rhode Island Web page. See disclaimer.

What this language means is that the University is not the publisher of these personal Web pages. Rather, it is a distributor of the pages and does not assume any responsibility for its contents.

All members of the University community are guaranteed the right of free speech and of academic freedom, both on constitutional grounds and on the basis of our policies and our collective bargaining agreements. For faculty members, the AAUP has been the champion of academic freedom, and the Board/University and the URI AAUP incorporated the language on this matter from the “1940 Statement of Principles on Academic Freedom and Tenure” into both policy and the collective bargain agreement between the parties. This freedom is a cornerstone of our values as an institution of higher learning. That freedom is not without restraints, however, as the final paragraph of Section 7.2 of our contract makes clear:

“The college or university teacher is a citizen, a member of a learned profession, and an officer of an educational institution. When he/she speaks or writes as a citizen, he/she should be free from institutional censorship or discipline, but his/her special position in the community impose special obligations. As a person of learning and an educational officer, he/she should remember that the public may judge his/her profession and his/her institution by his/her utterances. Hence he/she should be at all times accurate, should exercise appropriate restraint, show respect for the opinions of others, and should make every effort to indicate that he/she is not an institutional spokesperson.”

So it seems reasonably clear to me that consistent with our policies that a student, faculty or staff member may place on a personal Web page whatever content he or she wishes, provided that he/she makes it clear that the Web-page is not a publication of the University and that the University accepts no responsibility for that content. Both administrators and faculty members are also bound by the collective bargaining agreement and AAUP Principles to exercise all due diligence to ensure that the content of such a personal Web page is accurate, reflects restraint , and shows respect for the opinions of others.

This is not, however, the end of it. There is still the law, an ever-evolving set of rules and regulations for our conduct as citizens. The advent of the Web has raised a myriad of questions, since it is a form both of institutional publishing and of self-publishing that goes out instantly, world-wide. The most pressing problem to date has been the protection of intellectual properties—patents, copyrights, licenses and such—and the most aggressive parties seeking new laws to regulate the activities of others are those in the music and entertainment industries. College campuses have been among the places most active in infringement of copyrights, and the challenge for colleges and universities has been to separate themselves from the liability that attaches to the illegal acts of members of the community, using the universities’ computing systems. In the past few years, Congress recognized this problem and passed the Digital Millennium Copyright Act to protect the interests of both the holders of copyrights and the institutions wherein freelance infringements might occur.

There are no such statutory protections related to the common law torts of slander, libel or defamation distributed via the Web or by any other media. The textbook explanation of the responsibility of a distributor and publisher of defamatory matter can be found in Sections 578 and 581 of the Restatement, Torts2d.

A publisher is the originator of the libel, and one who repeats or otherwise republishes defamatory matter is subject to liability as if he or she had originally published it. A distributor, on the other hand, is one who only delivers or transmits defamatory matter published by a third person. However, a distributor can also be subject to liability if, but only if, he or she knows or has reason to know of its defamatory character. (Italics added)

The official comments to the text further provide the following explanation:

Each time that a libelous matter is communicated by a new person, a new publication has occurred which is a separate basis of tort liability.

Thus one who reprints and sells a libel already published by another becomes himself a publisher and is subject to liability to the same extent as if he had originally published it.

Subject to the [knowledge/notice] limitation, stated in § 581, the same is true of one who merely circulates, distributes or hands on a libel already so published.

It is no defense that the second publisher names the author or original publisher of the libel.

Thus a newspaper is subject to liability if it republishes a defamatory statement, although it names the author and another newspaper in which the statement first appeared.

And remember that there is no First Amendment protection of libel or slander other than the conditional privilege applicable to public figures and officials. Even in such “public figures” cases, an injured plaintiff can prevail if he/she can establish the requisite malice. Of course the case law in this country, based on the First Amendment, is largely irrelevant if the claim is brought in a foreign court. Some of these foreign courts have asserted jurisdiction in libel claims based on where the injury is alleged to have occurred. Since a libelous statement on the Web is arguably published world-wide, plaintiffs can do what is called “venue shopping” for the court most sympathetic to their claims.

The facts in the case we have been discussing recently might be described as follows: a faculty member at URI publishes on his/her personal website article(s) in a highly controversial area of scholarship. (If the matter ended there, we would not be having this discussion since the controversial nature of an issue plays no role in the equation.) However, persons living outside of America claim that the publication is mere polemics and contains libelous statements which have injured them personally. The professor at URI believes that he/she has an absolute right to publish his/her articles containing these statements on his/her personal Web site, which he/she asserts are not libelous. The persons living in another country--on the face of it researchers at a foreign university (or universities)--claim that the existence of the article(s) and statements on the URI faculty member’s personal Web site—in their view published by the University of Rhode Island--libel them and constitute an infringement on their academic freedom as well. Their attorney gives notice to the University of their claims and states that their clients are prepared to file suit in a foreign court to get a judgment against the University. As indicated in the discussion above, once we are given such notice, our continuing distribution of material which may later be determined defamatory can expose URI to the same liability as the original publisher, even under American law. The fact that these issues may be determined in some foreign jurisdiction applying foreign law can only increase that exposure.

So what should be our policy? On the core issue of academic freedom to publish, consistent with the language of the 1940 AAUP Principles, we are completely clear. URI must not and will not prevent any member of this community from writing and publishing their scholarship and opinions. But are we, as an institution, to become the publisher of those writings? Our Manual policy intends to erect a firewall between what is published on personal web sites and the University itself. Were these publications found on official University Web sites, the University would be required to exercise due care to prevent libelous statements. But it is neither desirable nor practical, from a policy viewpoint, to expect the University to do so on personal Web sites. Were the Manual’s firewall able to stand in the face of legal challenges, our worries as an institution would be largely over. That would make the student, faculty member or staff individually responsible for the content of the personal Web site, as our Manual policy seeks to do. But it is unlikely that the law will let us escape so easily.

Let us think of it generally in this way: as the AAUP language affirms, faculty are “officers of an educational institution” and agents of the University when they act within the scope of their employment. Publishing in refereed journals, for example, is an action for which they are employed and therefore within the scope of their employment. Publishing their opinion in the local newspaper is protected from any interference or reprisal from the University, but when a faculty member does so, he/she is not acting as an agent of the University but as an individual for whose actions the University takes no responsibility. Publishing on a University-based personal Web page is a protected activity, but it may or may not be an act within the scope of a faculty member’s employment, depending on the facts determined on a case-by-case basis.

My conclusion regarding this very interesting question is, therefore, that the publication of writings and opinions of individual employees on personal Web pages as defined and described in the University Manual are protected from interference by the University. When employees are writing and publishing on these individual Web pages, they are generally not agents of the University, and their actions lie outside the scope of their employment with the University.

When the University is given legal notice of an alleged libel, however, the University’s General Counsel will access the publication in question to make a prima facie determination as to whether it is reasonable to believe that a libel has occurred. If in his/her best judgment there is no basis for the claim, we will so advise the complainant and maintain the publication. If there is a prima facie case for libel apparent, we will so advise the employee and attempt to reach a resolution that is acceptable to both the employee and the institution. If that fails, the University’s General Counsel will make a recommendation to the President.

In unusual or exceptional cases, the President may also convene a panel to consist of the employee, the University’s General Counsel, and a representative from the AAUP, the Faculty Senate, and the Office of the Provost. It will be the charge of this panel to review the issues raised and attempt to facilitate an appropriate resolution and response. This panel shall have no authority to respond on behalf of the University or to impose a resolution on the employee. However, the panel shall provide appropriate input to the President that it feels should be taken into consideration in rendering a decision regarding the maintenance of the publication. The decision of the President shall be final.

C: Judge Frank Caprio, Chairman of the Board
Commissioner Jack Warner
Provost Beverly Swan
General Counsel Lou Saccoccio

Scholars have very legitimate reasons for wanting to use the web to reproduce their scholarly work. They get wider dissemination of their ideas that way, particularly if their work originally appeared in a paper publication without a web presence. They can also disseminate their work more quickly via the web than via traditional scholarly publications, which can often take a year or two to get an article into print. In fields like Hughes', where timeliness of publication is of the essence, and where policymakers want access to the most current research, that's essential. Hughes had good academic reasons for wanting to make her work available on her university website.

URI's concerns about liability don't dovetail all that neatly with the scholarly interests cited above, and the lip service paid in the statement to academic freedom and case-by-case evaluation don't inspire confidence that URI is interested in being a defender of its faculty's right--some would say obligation--to attempt to reach a wider public than one can typically reach with peer-reviewed journals published at a snail's pace for tiny audiences of specialists.

URI has said to Donna Hughes that the case against her has no merit--but the school is nonetheless framing a policy more centered on protecting itself from lawsuits (even spurious ones) than on defending the free inquiry and free expression of its faculty. That's both understandable and sad. It remains to be seen whether URI will decide to support Donna Hughes against a potential libel action that it has already said, off the record at least, is groundless. I don't think anyone would argue that URI--or any other university--should have to defend libelous statements made on its servers. The question is what URI will do when material published on its servers is accused of libel. Donna Hughes' case will be a defining one.

It may well be that URI is within its rights to frame a policy about the web pages it hosts in the way it has here. It may also be that those members of URI's faculty who wish to make their scholarship available to the world can do so most effectively via self-purchased commercial webspace. It will be up to the University of Rhode Island to decide whether that is or is not a shamefully self-discrediting outcome of its new policy. That, in turn, will depend on how URI enacts that policy, and on what criteria come into play, behind closed doors, when libel threats are assessed on the case by case basis outlined above.

In other news...

So I go to Google News, and I type in "teacher" as a search term. The top six stories are:

Three Teens Plead Guilty to Plotting to Kill Middle School Teacher

Teacher Accused of Viewing Porn in Class

Teacher Accused of Sex With Students

McKinley Students Accused of Trying to Poison Male Teacher (this is not the same murder plot as the one cited in the first story--that one involved a gun)

Death of Elderly Somner Co. Teacher Ruled Homicide

Music Teacher Faces Sex Abuse Charges (this is not the same teacher sex abuse case cited above--this one does not involve the teacher's students, but does involve child porn)

I hate to think what I would have pulled up if I had actually been looking for teacher-centered crime.

Speaking out at SUNY Brockport

Breaking news in the effort to eliminate speech codes on campus:

The Foundation for Individual Rights in Education (FIRE) announces the fourth lawsuit in its campaign to rid public campuses of repressive and unconstitutional speech codes. The federal lawsuit was filed June 3 against the State University of New York College at Brockport (SUNY Brockport), in upstate New York, on behalf of students Patricia Simpson and Robert Wojick. The two students seek to overturn policies that violate their rights under the First Amendment to the United States Constitution. The suit was filed in federal court in Buffalo, New York, by three pro bono FIRE Legal Network attorneys: Robert A. Goodman and Elizabeth A. Wells, both of the law firm of Arnold & Porter in New York City, and Amherst, New York, attorney David R. Koepsell.

"Oppressive speech codes such at those at SUNY Brockport have no place on America’s college campuses," said Greg Lukianoff, FIRE’s director of legal and public advocacy. "Not only does SUNY Brockport tell students what not to say, it actually tells them what they must say and even what they must think. A free society does not tolerate such Orwellian horrors," he continued. "The defeat of this speech code—and of all other unconstitutional speech codes at public universities—is inevitable. FIRE will not stop until students' rights are vindicated and the rights and values of a free people are restored."

The speech code at SUNY Brockport bans expression that is clearly constitutionally protected. The college’s harassment policy, which applies to students and faculty, lists the following among examples of harassment: "cartoons that depict religious figures in compromising situations"; "calling someone an 'old bag'"; "jokes…making fun of any protected group"; and even merely "discussing sexual activities." "Administrators at SUNY Brockport must have read the First Amendment to some other nation's constitution," Lukianoff added.

SUNY Brockport's regulations have been used to chill the speech and to threaten punishment of the plaintiffs in the case. The Brockport College Republicans, to which plaintiffs Patricia Simpson and Robert Wojick belong, were twice targeted for the content of their expression in the last year. In October 2003, the group passed out a pamphlet that jokingly urged people to "Bring Back the Blacklist" for liberal celebrities. The College Republicans were confronted by an angry faculty member who called the pamphlet "offensive" and demanded they stop the pamphleteering. Fearing punishment under the college's speech code, they halted distribution. Then, in February of 2004, the College Republicans distributed a flier that exhorted members of the college community to "End Liberal Indoctrination on Campus." Yet another faculty member declared the flier "harassment" and demanded that the group either be denied funding or be shut down altogether.

Read the entire FIRE press release here, read the Associated Press here, and consult the FIRE case archive for information about prior suits against the speech codes at Citrus College (settled successfully out of court), Texas Tech (ongoing), and Shippensburg (a resounding victory posted last January). To learn more about speech codes at colleges and universities across the country, check out speechcodes.org.

When a teacher goes too far

For a number of years now, Dan Wieden, the man who came up with Nike's "Just Do It" campaign, has taught a journalism course at the University of Oregon. This year, he thought it would be a good idea to give students an assignment in which they were forced to confront and overcome fear. Things unravelled from there, as one might expect. It's a bad idea to mix consciousness-raising and classroom teaching. It's a particularly bad idea for a teacher to tell students that they have to expose themselves emotionally in order to earn a good grade. Wieden may have had the best of intentions, but he crossed the line between teacher and therapist with this one, and the fallout was predictably ugly.

News reports are a little foggy on what the assignment actually was. Some suggest that Wieden quite seriously expected students to do the exact activities he suggested they do, while others suggest that when Wieden made these suggestions, he was speaking metaphorically. Today's Chronicle of Higher Education notes that both Wieden and the dean were surprised that students took Wieden literally when he told them to go streaking, stand up and object at a wedding, and come out to one's parents. "The assignment was not to do these things but to prepare a creative presentation," the dean of journalism told The Chronicle.

But Wieden's students did take him literally. The student assigned to run naked in public did just that, filming himself, per the assignment, streaking across a private golf course and, not unimportantly, thereby breaking the law. Other students merely agonized about being given assignments that they felt would compromise them morally, and worried about what would happen to their grades when they failed to complete the tasks required of them.

Eventually, complaints made their way to the dean, and now the university is apologizing profusely for putting students in the position of having to choose between doing homework that either broke the law or compromised them personally, and receiving a failing grade for an assignment they failed to complete. "It is clear that some students found themselves in a position that resulted in behaviors that are inconsistent with the mission, ethics, values, and vision of the School of Journalism and Communication and the University of Oregon," the dean of the journalism school told The Chronicle of Higher Education. "I should never have been exposed to a learning environment where the instructor seemingly took advantage of his authority for his own amusement at the expense of the students," declared one member of the class.

That's true. But there seems to be some question about whether that's really what Wieden was doing. Other members of the class readily understood what was being asked of them, and creatively modified the assignments in ways that suited them personally.

The University of Oregon is apologizing up and down for not making the assignment more clear. That's fine as far as it goes. But it also ignores what seem to me to be two crucially important underlying issues: Wieden's confusion of the classroom with a group therapy session, and the disturbingly blunted powers of comprehension displayed by some of his students. Neither will be addressed by promises to make things more clear in future; both will, in fact, be encouraged.

History for fun

Random Penseur is compiling a list of history books, historical novels, and biographies that meet two essential criteria: they are well written, and one does not need to have a lot of prior background in order to enjoy them. I thought I'd add to the list, and I invite readers to do the same in the comments.

History:
Kevin Kearns, Dublin Tenement Life: I picked this up in a used bookstore in London last year, and devoured it with great pleasure. It's a richly illustrated, totally unassuming oral history of Dublin tenement culture, one that contains numerous firsthand accounts of life in the early twentieth-century Dublin slums.

Tony Horwitz: Confederates in the Attic: excellent social history of contemporary Southern ways and means of remembering--or forgetting--the Confederacy.

Paul Fussell, The Great War and Modern Memory: riveting account of how World War I reshaped Western consciousness, with special emphasis on the life and literature of the trenches.

Ruth Richardson, Death, Dissection, and the Destitute: the little known and phenomenally interesting story of how it was that early nineteenth-century medical schools secured the right to dissect the dead.

Biography:
Richard Ellmann, James Joyce: the mother of all literary biographies. Simply a stupendous piece of work.

Richard Ellmann, Oscar Wilde: some of Ellmann's claims and some of his research have been disputed, but this is nevertheless a magisterial and highly readable account of Wilde, one that quite movingly gets at the man behind the epigrammatic facade.

Leon Edel, Henry James: okay to use the abridged version. It's still 700 pages long.

Victoria Glendinning: Trollope. Better than his novels, and yet very like them.

Phyllis Rose, Parallel Lives: charts the complicated and often pathological marriages of five Victorian couples--the Carlyles, the Dickenses, the J. S. Mills, the Ruskins, and the George Henry Leweses (of George Eliot fame).

Peter Ackroyd, Dickens: if Dickens had written his own biography, it would read like this and it would be this long.

Historical Fiction:
Peter Quinn, Banished Children of Eve: I read this last week, despite the lurid title. It's an excellently researched novel set in New York City in 1863, during the period immediately preceding the draft riots. Lots of great local color, especially for those interested in Irish immigrant life in old New York, which I am.

Annie Proulx, That Old Ace in the Hole: with the exception of the awful Accordian Crimes, Proulx isn't usually thought of as a historical novelist. But she is very much one. Her best work (I would include Close Range: Wyoming Stories in this category) sets out quite self consciously to document dying ways of western American life and to draw meaningful connections between the present moment in which the fiction is set and the past whose traces it contains. That Old Ace in the Hole is a wonderful evocation of the decaying ranch culture of the Texas panhandle.

Roddy Doyle, A Star Called Henry: magical realism set during the era of the Irish Civil War. Beautifully written, entirely unforgettable.

Andrea Barrett, Ship Fever: Barrett has made a career out of writing meticulously researched stories about nineteenth-century science. One of a kind.

A.S. Byatt, Angels & Insects: Barrett draws a lot of inspiration from Byatt, who in turn owes a lot to George Eliot (but that's another post).

Charles Palliser, The Quincunx: this is the novel of nineteenth-century London that Dickens wishes he wrote, but did not. Don't start it unless you are prepared to be hijacked by it. Totally addictive.

In other news, Mandalei has launched an online reading group dedicated to The Iliad. The immediate motivation: her strong impression that no one in Troy had actually bothered to read Homer as preparation for making the film.