Friday, February 22, 2013

Edwin Mellen Press suing blogger and new employer over critical post

The Edwin Mellen Press has filed a lawsuit against Dale Askey, now university librarian at McMaster University in Ontario.  They also name McMaster, even though when Askey wrote the blog post in question, he was employed at Hale Library as  --> an associate professor at Kansas State University.  Mellen claims $3 million in damages from Askey and from McMaster University!  They originally just sued Askey, but quickly refiled to include deeper pockets.  It is interesting to note that the blog post was from September, 2010, and Mellen's initial notice to sue came  shortly after Mr. Askey moved to Canada to take his job with McMaster, in June, 2012!  Read farther down about the difference in U.S. state law compared to Canadian law for something interesting to think about the timing of Edwin Mellen's suits!

The post in question has been removed from Mr. Askey's personal blog, Bibliobrary, but can be easily located by reading the Edwin Mellen legal petition, here, kindly supplied by the Canadian Association of Professional Academic Librarians, who strongly support Mr. Askey. They supply a link to a petition in support, and a partial list of the various other academic organizations which have rallied in his support. 

 The blog post was titled "The Curious Case of Edwin Mellen Press," and Mr. Askey blogs, in relevant part, (handily underlined by Mellen's counsel for us):
 Edwin Mellen has been on my radar as a dubious publisher for over a decade now, and given that libraries monographic budgets are ever-shrinking, I find myself amazed by the durability of Mellen. 

    ... No, they are not technically a vanity publisher, since apparently they earn enough from libraries with their egregiously high prices to avoid asking for subsidies from authors. But at the end of the day, so much of what they publish is simply second-class scholarship (and that is being kind in some cases), and in a time when libraries cannot purchase so much of the first-class scholarship, there is simply no reason to support such ventures. ...

 ... The dirty little secret of libraries is that such purchases are rarely evidence of careful consideration, but rather a sign of how much of the work of acquisitions we outsource to vendors, who supply these books on approval.  Why? Well, since those suppliers take a cut of sales, it is in their interest to sell as many high-priced volumes as possible, and in that scenario, a publisher such as Mellen is a golden goose.  ....
     A few commentators suggest that this may be a SLAPP suit, or Strategic Lawsuit Against Public Participation.  In a SLAPP law suit, the plaintiff does not actually expect to win the suit, but files the petition in hopes of silencing a critique by burdening them with the costs of litigation. In some U.S. jurisdictions, depending on statutory law or court precedent, if a judge concludes that the petitioner has mis-used the court system in order to intimidate the defendant, he or she may 

*  Dismiss the complaint at an early-stage motion; recover damages; challenge subpoenas and protect defined personal information; and protect privileged publication and participation in public proceedings and litigation.   (California)

*  Or, more relevantly, NY, where Edwin Mellen's U.S. offices are located. New York's Anti-SLAPP laws require the defendant to first show 2 things:

1)   First, you must show that the plaintiff suing you is a "public applicant or permittee."  The statute defines a "public applicant or permittee" as an individual or entity that has obtained or is seeking "a permit, zoning change, lease, license, certificate or other entitlement for use or permission to act from any government body." The term could include real estate developers, mining companies, garment manufacturers, and private landowners looking to build new structures on their land, among others. In essence, to meet this requirement, you will have to show that the party suing you requires some sort of government license to operate or proceed with a project.  See the excellent link above.

2)  Second, you must show that the plantiff's claim against you is an "action involving public petition and participation." The statute defines an "action involving public petition and participation" as one that involves a public applicant or permittee (above) seeking damages from a defendant on the basis of the defendant's efforts "to report on, comment on, rule on, challenge or oppose" the application to the government. For example, the definition would include a garment manufacturer's lawsuit against a public interest organization campaigning to have the manufacturer's state registration revoked. For another, the definition would include a real estate developer's lawsuit against a blogger who reported on the developer's attempts to secure a building permit, or who called upon local citizens to oppose the application.
      If you meet these 2 standards, you can file a motion to dismiss.  This does not allow you to halt discovery (unlike California, above). But if you prevail on the motion to dismiss, then the defendant in a NY SLAPP case can be awarded costs and attorneys' fees if the case was without basis in fact. If they can show they suffered harm, the defendant can be awarded compensatory damage in the amount to make them whole.  And if they can show that the ONLY reason for the lawsuit was to injure their rights, the NY SLAPP defendant may also be awarded punitive damages.

       Kansas does not have any SLAPP statute or case law.  However, if Edwin Mellen brought suit against Mr. Askey in the U.S., I wonder if Askey might have been able to remove the suit to New York state, where the suit might have become far more dangerous to Mellen?
      You can check Mr. Askey's blog dated Feb. 21, 2013, to see his thanks to a very long list of organizations which have come out in support.  There have been a number of articles about this as well:

Chronicle of Higher Education

Inside Higher Education

Library Journal (which notes that Mr. Askey is currently paying his lawyer expenses for both suits, which are both continuing, out of his own pocket!  McMaster is only covering the costs of the suit against the University.)

InfoDocket blog, (from Library Journal) with an excellent list of links for supportive comments and news stories.

     I was interested to read in several of these stories that Edwin Mellen Press had filed a similar suit for libel against the well-regarded journal Lingua Franca in 1993.  They lost that law suit, though Lingua Franca is now defunct, apparently from other causes.  There is even a book about the suit, The Edwin Mellen Press versus Lingua Franca: A case study in the law of libel, by Paul H. Reid, Jr.  Published by Edwin Mellen Press -- somebody either has no shame or a huge sense of either humor or irony!  

     The decoration is from an article in the Economist online paper dated Jan. 8, 2009, "Libel Tourism," which is interesting in itself. It appears that at least for a while, British citizens were suing non-Brits in British court, often very wealthy Brits against very humble non-Brits, over claims of libel. 

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