In 2010, Dale Askey was a tenured associate professor at Kansas State University (K-State) when he made a blog post about Edwin Mellen Press. Since removed from the blog, but available via the Internet Archive, the post called Mellen a “dubious publisher,” saying that the press occasionally publishes a worthy title and is not technically a vanity publisher, but that “much of what they publish is simply second-class scholarship.”
Askey removed the post in March 2012, something he told LJ “was a personal choice.” Three months later, Edwin Mellen Press filed two libel lawsuits in Ontario’s Superior Court. (Neither suit has yet received a court date; for the court filing and the most current updates, see Gary Price’s roundup on infoDOCKET.com)
The first, asking some $3.5 million in damages, is against not only Askey, but McMaster University, where Askey is now employed as associate university librarian, even though it is Askey’s personal blog and he was not employed by McMaster at the time of the posting. The rationale is that because McMaster employs Askey and did not require him to remove the blog post or comments, then the university “adopted the defamatory statements as their own.”
The second suit, aimed only at Askey, names press founder Herbert Richardson as plaintiff and alleged additional defamatory remarks about him personally. The press is holding Askey and McMaster responsible for comments made by others to the post; interestingly, neither those commenters nor Kansas State University are named party to the suit.
Edwin Mellen Press had not, at press time, responded to LJ’s inquiry as to why they were not named.
Askey’s lawyer, Brian MacLeod Rogers, told LJ, “In Canada, even in libel cases involving public figures and matters of public interest, the onus remains on defendants to prove a defense for any defamatory statement they have published; its falsity and damage are presumed. While defamation defenses have greatly improved in Canada over the past five years – thanks to our constitutional equivalent of the First Amendment for protecting free expression – it is up to defendants to show that: contentious facts are true; any defamatory opinions are ones a person could honestly hold; or they were ‘responsible’ in publishing what they did.”
Moreover, he continued, “In the United States, section 230 of the Communications Decency Act essentially provides immunity from defamation claims for publishing someone else’s posts online – not so in Canada where there remain many murky areas in determining liability for Internet postings and applying traditional common law concepts.”
The suit has “been a painful distraction, both in my personal and professional life,” Askey told LJ. “It most certainly has impacted how I participate online, and not in a positive way.”
This isn’t the first time Edwin Mellen has sued over negative commentary: the press took legal action against Lingua Franca magazine in 1993, but lost the case.
McMaster issued a statement which read in part, “McMaster University has for more than eighteen months rejected all demands and considerable pressure from the Edwin Mellen Press to repudiate the professional opinions of university librarian Dale Askey, notwithstanding the fact that those opinions were published on his personal blog several months before he joined McMaster. Because of our respect for individual freedom of speech, the University finds itself today a co-defendant with Mr. Askey in a legal action brought by the Edwin Mellen Press. The University will continue to rigorously defend its commitment to academic freedom and freedom of speech as the case proceeds before the courts.”
Askey told The Hamilton Spectator that he received “a lot of support internally” from McMaster. “I’ll say that I’ve been very gratified,” he said. “In particular, I’ll say Patrick Deane [president and vice-chancellor of McMaster University] is a man of integrity and high ethics and I’m really pleased that he’s been supportive.” Askey also told the Spectator that he’s been told the suit will in no way affect his status at the university.
However, The Chronicle of Higher Education quoted James Turk, executive director of the Canadian Association of University Teachers, as saying the university’s statement does not offer enough support for Mr. Askey. “They didn’t repudiate him, but they aren’t supporting him,” Mr. Turk said. “What they’re ducking here is the central thing that they are being asked to do. They are dodging it. They’re being silent on their actual tangible support, covering the legal costs.” Turk told Inside Higher Ed, “The implications of it being successful or for [Askey] having to settle because he couldn’t afford to defend himself against the claims would be dire.”
In response to LJ’s asking whether McMaster intended to help cover Askey’s legal costs, Gord Arbeau, Director Public and Community Relations, replied, “The University is supportive of Mr. Askey and is joining with him in a vigorous defense of these suits. The University is responsible for the costs of its own defense in the suit in which we are named.”
Askey is currently paying his own legal bills for both suits. He told LJ that he wrote to K-State on January 16, to ask whether the university might have insurance that could assist with costs. Not having received a response, he followed up with a phone call around January 31. He then received an email from the university’s internal counsel, “noting that Kansas State carries no liability insurance and that tort claims are handled by the Kansas Tort Claims Act,” and referring Askey to the Kansas Attorney General’s office. He also wrote to K-State’s President and Provost, asking them to consider making a statement on the matter, but has not yet received a response. At press time, K-State had also not yet replied to LJ’s request for comment.
Less tangible support is pouring in for Askey from a number of corners, including the Canadian Library Association, Progressive Librarians Guild Toronto Area Chapter, the Canadian Association of Professional Academic Librarians, the library chapter of the York University Faculty Association, BoingBoing, Gawker, and more than 1,100 signers, at press time, of a petition at Change.org. However, Askey says there is not, at least not yet, any effort to crowdfund his legal defense.
For more updates, see Gary Price’s roundup on infoDOCKET.com