Critical Mass reader Ken Menzel wrote to University of Rhode Island president Robert Carothers to ask him what's up with the university's unwillingness to tell Donna Hughes whether she can or cannot re-post on her faculty website two articles that drew a letter of legal threat from a UK-based law firm last October. Usually when university presidents get letters of this sort, they send template responses that say nothing in reply. Carothers, however, offered a bit more than that. Here is what he wrote:

... The professor here is free to put anything on her personal website she chooses. The real issue is whether the University will indemnify an employee against a libel judgement in a foreign court, particularly should that court determine that the act is an intentional tort. The plantiff's counsel has put us on notice that they will allege that this is an intentional act. There is no insurance coverage for intentional injuries, and whether we think the claim is justified or not, people are venue shopping around the planet for courts that will make such determinations. For example, in England, where this action would be filed, the burden of proof falls on the defendant to prove that the plaintiff's claim is false, as opposed to the USA, where the burden falls upon the plaintiff to prove that the statement is libelous and that damage has been incurred.

The University already has a policy statement regarding personal websites on the University's larger website, disclaiming responsibility for the content. This was designed chiefly to protect us against students who might be infringing on music copyrights, etc. The current issue is one we had not really contemplated, and we will need to do some work on that policy to balance our corporate interests and our commitment to free speech.

RLC

Readers with legal training are particularly invited to comment.

UPDATE 6/7/04: The Chronicle of Higher Education has picked up the story. Subscription only, unfortunately.

URI President Carruthers is incorrect in implying that libel liabilities cannot be covered by insurance. In fact libel insurance is widely available. Here's a website describing libel coverage in layperson-friendly terms: www.ojr.org/ojr/law/1077150111.php. And here's an insurance broker advertising a policy available from Chubb Insurance (one of its selling points is that it provides world-wide coverage): www.walterry.com/progs/Natl/NNA/libel.html.

Erin
Given the remarkable candor of Carothers' responses, I found them fairly credible. They made me feel a lot more sympathy to his (personal) plight here, and indicates that if the matter has indeed been laguishing for 8+ months, some intermediary minion has been doing the stonewalling.

It would be interesting to see if a little more inquiry might shed additional light on where the bottleneck lies and whether anyone gets disciplined for the embarrassment.

Doesn't the problem arise here because a determination of libel is precisely a content-based determination?

That is, one of the points I take from Erin's website (a point in which I join her) is that colleges and universities have no business regulating the speech of their professors or their students based on the content of that speech. The time, place, and manner regulations applied to one should be applied to all, and no restrictions should be applied based on the point of view being expressed. All have equal rights to express themselves, no matter how wrong, or "hateful," or whatever, the institution may deem that speech.

But here the institution is asked to grant or withhold a forum based expressly on the content of the speech sought to be broadcast. This doesn't fit neatly into the paradigm of "you have a right to say whatever you want, whether the institution deems it wrong or not."

While I have legal training, I have no particular expertise in the area of libel law, whether British or American. My general fund of knowledge tells me that what Stolypin said in the comments to the prior post, and what Mr. Carothers is quoted as saying in the main post, are all correct. But that doesn't advance the argument much.

Of course, one may finesse the content evaluation problem by appealing to the "public figure" doctrine and other facets of American libel law. If that route is unavailable (as it is with British law)then no good answers present themselves to one who believes in content-neutral regulation. It boils down to the fact that libel must be treated as a special case no matter what solution you adopt.

On the one hand, the university can continue in the "platform-providing" business (i.e., continue sponsoring a website) but then it must make a fundamental choice: if it decides that, in all cases, it will either back or disavow the website user, it must acknowledge that in this special case of libel it is in the content-regulation business, because the decision to back or disavow will turn on the intstitution's evaluation of the content of the speech. The second choice would be to make it clear to all website users that if the special case of libel comes up, the institution will stick to it's overarching policy of not evaluating the content of the speech, and therefore will withhold access to the website user in question until the content-specific question of libel is determined by some outside agency such as a court.

The other alternative, of course, is for the university to get out of the "platform-providing" business altogether, or else make it clear that it provides the platform only as a courtesy to those who avail themselves of it. Provision of a platform as a courtesy would amount, in practice, to the second choice outlined above -- i.e., the university would withhold provision of the platform when the special case of libel comes up, so as not to put its head on the block if some outside source decides that an instance of speech is, indeed, libelous.

Two questions occur to me.

1. How does this case differ from the case of a university press that accepts a manuscript for publication, is threatened with a libel suit, and decides not to publish the manuscript?

2. Why would a US university fear an adverse judgment in a British court? Are British judgments enforcable in the US?

One more. If URI rolls over when threatened with a British libel suit, what are they going to do when faced with the thread of a suit in a country where verdicts can be purchased?

Bruce H makes some very important and valid points, particularly those involving the enforcement of a foreign judgement. I did some quick research on the matter.
U.S. courts do tend to be liberal when it comes to the enforcement of foreign judgments - far more liberal than foreign courts when it comes to enforcing U.S. judgments by the way. However, they draw the line when the foreign judicial system is held to deny defendants the due process rights the U.S. citizen would be entitled to in a U.S. court. This is particularly true in cases involving the First Amendment.

A quick look evidences more than one case in which U.S. courts have refused to enforce foreign libel judgments - British and Indian (Indian law apparently tracks British libel law) libel judgments in particular.

Some examples (I have added the case citation for those wishing to look up the cases in legal texts or databases. These are pay services and I cannot link to them directly:
Matusevich v. Telnikoff, 877 F.Supp. 1 (D.D.C. 195); answering question certified from U.S. Court of Appeals, 347 Md. 561, 702 A.2d 230 (1997); conforming to judgment of Maryland Court of Appeals, 1998 U.S. App. LEXIS 556 (D.C. Cir. May 5, 1998).
Abdullah v. Sheridan Square Press, 1994 WL 419847 (S.D.N.Y. May 4, 1994).
Bachchan v. India Abroad Publications Inc.,
154 Misc.2d 228 (N.Y. Sup. Ct. 1992).
Ellis v. Time, Inc., 1997 WL 863267 (D.D.C. Nov., 18 1997).

The common thread in these cases is the fact that the different burden of proof (discussed above and below) effectively denies U.S. defendants their due process rights. This includes the enhanced protection in cases involving public figures and the whole line of First Amendment protections that have evolved since NY Times v. Sullivan.

Now this list is not exhaustive, the law may have since changed, and the law in Rhode Island may not track these DC and NY cases, but it does lend more than a bit of validity to Bruce H's assertions.
This raises two points: If I can find this in about 5 minutes on Westlaw - I am sure URI's lawyers can do the same.
One other, far more obstruse point. If URI is an agency or insturmentality of the State of Rhode Island they may very well be able to assert a sovereign immunity defense based on both traditional notions of the state's immunity from suit except when they expressly waive same and on the 11th Amendment. If URI is a state instrumentality they probably do permit litigation in Rhode Island state courts - but may not have waived immunity from suit in federal courts or any foreign court.

I won't go into detail here - it would take far too long. I have never briefed the issue of a state's immunity from suit in a foreign court. There may be some critical differences of law involved. I do have extensive experience on state soverign immunity/11th Amendment cases -including an amicus brief to the Supreme Court and extensive appellate court briefing (he says with an excess of pride :)) and I think an immunity defense is not outside the realm of possibility.

Recent jurisprudence concerning cyberlaw may have overtaken some of the cases I just cited and I do not pretend that this is anything other than speculation on my part. In other words - anyone should feel free to correct or supplement my comments with better information and it won't hurt my feelings in the slightest. [really :)].

One last point: Litigation is expensive - and this type of litigation could be very expensive. URI may very well believe that the price of victory even if predictable is too much to pay. Even with some caselaw on their side - there is no gurantee of sucess. They may be - like many other corporations - risk averse.

Ok, so there is no free speech issue. The prof has a place to publish, if she wants to take on the legal liability. The argument here has been one over venue, not over the freedom to publish. The university has the right to refuse to publish when publication involves criminal accusations against an individual who might sue. This is a far different issue than censorship based on the political point of view of the writer.

The real issue here for every poster is precisely what I referred to when I told you that my wife is Filipino. Note that the prof's publication is about the purported sex trafficking industry in the Philippines. The real issues that attracted the interest of the posters can be divided by gender:

1. For the men, you've been pulled in by old fashioned male chivalry. You want to save the poor Filipino girls, and the feminist ladies will cheer for you if you do. Educated men are suckers for this.

2. For the women, this is a battle over competition. Yes, competition. The reason western women fear what they call the sex trafficking industry of the Philippines is because they are afraid of competition. (Apparently, Erin, too). The feminist movement is built on sexual withholding by women, and the traditional southeast Asian woman is trained to give. It's that simple. A southeast Asian woman is trained to be a great wife, a competent lover, and a loyal helpmate. Feminist western women don't much care for this.

A southeast Asian woman is raised in the cult of femininity, in which love and sex are arts for the woman to master.

This is a specific challenge to the western feminist woman. Every southeast Asian woman who takes care of a western man in the traditional way deprives a feminist woman of power. That power is the power to withhold sexually. I know, because I am married to such a woman. Feminist women have lost all power over me as a result, and it infuriates them.

These posts have been an exercise in delusion. There is no free speech issue here. The prof is a very dangerous individual who is furious that a single woman will not toe the feminist line.

Before you start on the "mail-order bride" hysteria, let me tell you that my wife was born in the Philippines, that she moved here when she was 8. She has more than one degree from a U.S. university and she has a high level corporate job.

Women like this professor have been the bane of our existence since the day my wife and I were married. We confront them on an every day basis. They assume that our marriage is their business. They are almost always lurking in the background, waiting to intervent in what they think in my wife's best interest, although my wife hates their guts. They made it impossible for us to continue to live in our summer home in Woodstock, New York, a place where women like Prof Hughes have the police and the courts on their side.

Folks, you've been gulled here. Erin too. This prof is an enemy of freedom. It's easy to get confused about this issue. And, folks, you've been sucked right down the shoot by a deceiver. Freedom of speech is not the issue here. The issue for those who actually believe in freedom is how to defeat Prof Hughes.

And, I'll repeat myself. Even a pimp deserves due process. You folks don't know how dangerous the likes of Prof Hughes are. I do.

In an earlier post, Erin wrote:

"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."

Isn't this PRECISELY the only question that needs to be asked? Who gets to decide what libelous speech is - the publisher? the author? The plaintiff? A jury - in the US - or a judge in the UK?

Why are we all assuming we have all the facts, understand the law well enough, etc. to make this judgment? Why are we so quick to second-guess URI and side with an obviously provocative (that is not meant in any derogatory sense - Hughes' work, to its credit, is designed to alert people and wake them from their stupor on this issue) professor?

Erin also writes: "my position is that the content of Donna Hughes' work is irrelevant at this particular point" but then a few sentences later in her extended parenthetical writes: "The university has no obligation to permit professors to publish defamatory material on their sites--but there is no proof that this is what Hughes did."

This is the crux of the matter: "content" is relevant because content is either legally actionable or not. The University has decided that the content of Hughes' work might be defamatory. It also might not be. The "proof" of whether or not Hughes has defamed anyone is not to Erin or the readers of this blog to decide. It is up to the publisher to decide, because they are by definition responsible for the work. If Hughes is unsatsified with the decision, she has several options - not of which would impinge upon her tenure at URI.

Erin, if you don't mind, I thought I would bring this discussion back full circle to where you started - speech and the reasons why it sometimes falls victim to other agendas.
There has been a lot of attention placed on this blog on the supression of campus speech by the academic left. That attention is well deserved imho.
Here we have suppression of speech that may be considered to be 'left' speech. (An imperfect use of the term I know - but it serves a purpose here.)
But there is a critical difference. This so-called 'left' speech was not removed from the URI site because of its political content. It was removed for economic reasons - i.e. the threat to URI's financial well-being. To that extent it may very well have been justified. On the other hand - there is no economic justification for the activities brought up by Erin since the sight was created. There is a difference. It may be minor -or it may be profound - I haven't quite figured that out yet. (For example, would it have required the threat of litigation to take down a Professor's web articles that alleged that Jesse Jackson should not pariticpate in a forum due to alleged financial improprities or Michael Moore should be denied participation in a film symposium because of alleged lies in his films.
I suspect it would take just a fewcomplaints to bring those articles down on many campuses.
The CU case - posted above - does put the issue of repressing speech as speech in play.

M, to all the astute legal commentary here, I'd just add that defamation (libel and slander) is the last surviving bastion of the civil jury in England and Wales (not Scotland, which is a civil-law rather than common-law jurisdiction with a seperate court system, thus making all the references to "the UK" and "British law" herein somewhat inaccurate, but that's a nitpicking semantic quibble).

Stolypin, since this sounds to me like it would be a suit against the professor personally, and not against URI, I'm not sure I see how sovereign immunity is more than tangentially relevant, e.g., if she/her insurers brought suit against URI for indemnification of the English judgment. But like you, I know of no case even enforcing such a judgment here. If she has any property in England, however, she might want to liquidate it and repatriate her assets lest they be attached to satisfy any potential judgment.

Dave J, thanks much for your comments. As I understood the matter from the original post the threat was directed at both URI and against the Professor. Any immunity issues would be applicable only to an action brought against the URI by the so-called defamed plaintiff. (And you may be quite right that it bears no real relevance at all in any case.) Thanks also for pointing out the common/civl law distinction between England/Wales and Scotland. And here I was thinking that the biggest thing that separated them was the quality of their rugby!
I now wonder if URI has set up any study abroad centers in England? I seem to recall that some U.S. universities retain a physical presence over their to support their study overseas programs.

Stephen, you let people like Hughes into your bedroom? Too bad you didn't know that tinfoil was a pretty good defense against this kind of thing.