When the College Art Association decided recently to settle rather than fight a possible libel action in Britain over a book review published in one of its journals, it did more than sidestep a costly and probably doomed legal battle. It opened itself up to sharp accusations that it had failed to stand up for freedom of expression.
The episode is a reminder of how wide a gulf separates the United States—where First Amendment protections and jurisprudence make libel very difficult to prove—from most of the rest of the world, where protecting reputations and public sensibilities trump the right to say what one pleases. It also points to the hazards of publishing in a truly global context, where, thanks to the Internet, a journal article or monograph or blog post can be accessed almost anywhere, no matter where it was written or published.
The fracas comes at a time when Congress is moving forward on legislation that would protect American writers and publishers from foreign libel judgments. The draft legislation would make such rulings unenforceable here unless they meet First Amendment criteria. And the episode also casts light on an effective culture of resistance to such judgments among American librarians, who often perceive them as censorship.
The recent controversy centered on a review in the fall 2007 issue of Art Journal, which is published by the association (The Chronicle, June 18). The review was written by Joseph A. Massad, an associate professor of Arab politics in the department of Middle East and Asian languages and culture at Columbia University.
In a discussion of Palestinian Art (Reaktion Books, 2007) by Gannit Ankori, Mr. Massad alleged that Ms. Ankori had appropriated the work of Kamal Boullata, a Palestinian painter and art historian, without giving him due credit. That allegation has been made elsewhere as well.
Ms. Ankori, who chairs the art-history department at Hebrew University in Jerusalem, considered the review defamatory. She consulted British lawyers, who contacted the association. The College Art Association reviewed Ms. Ankori's assertions, consulted its own lawyers, and decided to settle.
The resulting agreement has not been made fully public, but it did include a payment of $75,000 to Ms. Ankori and an apology. The association also issued a statements to its institutional subscribers, acknowledging "factual errors and certain unfounded assertions" in the review. It asked subscribers to remove the offending passages from their copies of Art Journal.
Mr. Massad called the decision to settle "a cowardly act." Linda Downs, executive director of the association, told The Chronicle that the group concluded it could not afford to take the case to court. "We really didn't have a choice but to settle it," she said.
Ms. Ankori's lawyer, Trevor Asserson, founder of the Asserson Law Offices firm, described the settlement in a letter to the Chronicle as an "unequivocal victory in [Ms. Ankori's] fight to clear her name of defamatory statements."
A Good Name vs. the Public's Right to Know
Ms. Ankori's decision to explore legal action in Britain is known in some circles as "libel tourism" or "forum shopping," in which plaintiffs seek out jurisdictions where the burden of proof falls on the defendant.
Several high-profile cases of libel involving American authors and the British legal system have caught the public eye lately. One American scholar, Rachel Ehrenfeld, ran afoul of a Saudi billionaire, Khalid bin Mahfouz over her book Funding Evil (Bonus Books, 2003), which alleged that Mr. bin Mahfouz had financial ties to terrorist groups.
Cambridge University Press agreed to pulp one of its books, Alms for Jihad by J. Millard Burr and Robert O. Collins (2006), in response to another complaint by Mr. bin Mahfouz (The Chronicle, August 10, 2007).
Alms for Jihad was at least published in Britain, which made Mr. bin Mahfouz's decision to pursue a legal remedy there more logical. If it seems odd that an Israeli plaintiff would even contemplate taking an American publisher to court in Britain, publishers of all stripes have found that such cross-jurisdictional gambits are becoming more and more common. "My client has a reputation in Britain which was damaged in Britain," Mr. Asserson, Ms. Ankori's lawyer, told The Chronicle in an interview, taking a standard line used by plaintiffs in such cases.
His law practice is a rarity: a British firm based in Jerusalem. Ms. Ankori's publisher, Reaktion Books, is based in London; the art association is headquartered in New York City.
According to prevailing American notions, Ms. Ankori should have duked it out with Mr. Massad in the court of public opinion. But from the British perspective, the preeminent place we give the First Amendment is "a very parochial way of looking at things," Mr. Asserson said. "One person's freedom to speak is another person's freedom to be defamed. One has to strike a balance, and that's what the law tries to do."
America, he said, "is out of step with many, many other countries."
The default position in America's vigorous, often bare-knuckled debates on culture and politics is that the public—and not the courts—should weigh the evidence and make up its own mind about disputes such as the one between Ms. Ankori and Mr. Massad. But Mr. Asserson, in line with prevailing British legal sentiment, says that the public "needs to be protected from being fed dishonest information. In this instance, the public was fed lies about Professor Ankori, and those have been corrected. That's the proper result." He notes that she successfully contested the same allegation made in Art Journal when it appeared in The Art Book, a respected British art journal published by Blackwell. That settlement also involved an apology, a retraction of the disputed article, and financial compensation.
That protect-the-public argument doesn't wash with American free-speech advocates. "Yes, terrible damage can be done, especially with the Internet, to someone's reputation, and there has to be recourse," says Judith Platt, director of communications and public affairs for the Association of American Publishers and director of its Freedom to Read advocacy campaign. "But the balancing factor has got to be the right of the public to be informed on matters of public importance."
The Big Chill
The Ankori case shows that it isn't just the hottest hot-button topics—e.g., terrorism—that can provoke lawsuits or legal approaches to publishers for redress. Palestinian art is, admittedly, a more charged topic than many, but any subject may be fair game. And while the Internet has allowed scholars and publishers to tap into new audiences and extend their reach, it also exposes them in ways they haven't encountered before.
"Every time a book is sold over the Internet, an American author, an American publisher becomes vulnerable," says Ms. Platt of the publishers' association. Many American publishers, however, have not experienced that vulnerability firsthand. The Association of American University Presses has no policy about libel tourism, according to its executive director, Peter J. Givler.
The art association may be the first scholarly society in this country to have to grapple with libel tourism or forum shopping. The American Council of Learned Societies polled its membership after the Ankori news came out. It found no other reports of the practice so far, "although the prospect of it is worrisome to many," Steven C. Wheatley, the group's vice president, told The Chronicle. "Our national peer-review structure is built on a web of practices—by universities, learned societies, and funders such as ourselves—that easily could be stressed by such litigation," he wrote in an e-mail message.
The College Art Association found out the hard way that First Amendment protections extend only so far. It's planning a workshop this summer to educate its publishing staff about the issue. And in a statement posted on Art Journal's Web site after the Ankori settlement, it talked about the need "to respect the distinct responsibilities of publisher and editor"—suggesting that the former must focus on keeping a publishing operation afloat while the latter concentrates on scholarly debate.
"CAA is constantly made aware of the association's dual commitment to advocate for freedom of speech and to maintain access to speech," the statement said.
The association's president, Paul B. Jaskot, emphasized the new international realities of publishing in an interview with The Chronicle. "We really had to think about that broader element of being an international publisher specifically in this digital context," said Mr. Jaskot, an associate professor of art and architectural history at DePaul University. "With that broader distribution, we have to be aware of the variety of scholarly institutions and cultures, and legal cultures as well, in other countries."
To Jonathan Bloom, a lawyer at Weil, Gotshal & Manges in New York, the combination of the Internet's reach and the availability of lax libel laws outside the United States has proved to be especially dangerous. Mr. Bloom has worked with the Association of American Publishers on First Amendment cases, and will moderate a panel on the use of foreign libel laws against American authors and journalists at the upcoming conference of the American Library Association in Anaheim, Calif., next week. "You have this combination of works, even in small numbers, available on the Internet and the aggressive use of more plaintiff-friendly libel law to launder one's reputation and to obtain judgments that not only harm the reputation of U.S. authors but also hang out there as a threat without actual efforts to enforce the judgments in the United States," he says.
In the case of Rachel Ehrenfeld, for instance, a British court found in favor of Mr. bin Mahfouz and awarded him a substantial financial settlement. Such a judgment can hang over an author or publisher like a sword of Damocles: When, if ever, will it fall? "Someone like Mahfouz retains this threat that has a chilling effect on the ability of someone like Ehrenfeld to obtain publishing contracts, to have her academic work published," Mr. Bloom explains. "It can have impact on her credit rating. There are all sorts of consequences that are an intended effect of obtaining this foreign judgment and having it hang out there as something that in future may be enforced."
Ms. Ehrenfeld may be safe as long as she stays in the United States, but what if she wanted or needed to travel to Britain? The courts there could enforce the judgment, under which she owes Mr. bin Mahfouz a substantial sum of money.
The professional and personal consequences can be pronounced and long-lasting. "What happened with Alms for Jihad has had a very concrete effect on the authors of that book," says Mr. Bloom. Cambridge University Press returned the rights to them last year, but one of the authors, Mr. Collins, died in April, and Mr. Burr told The Chronicle in an e-mail message that he is still searching for a publisher brave enough to risk Mr. bin Mahfouz's legal wrath.
Mr. Bloom believes that the chill extends far past the high-profile cases. "I have no doubt there have been many other examples of authors who have not written books or articles or even undertaken research in this area because they didn't want to wind up on the receiving end of a lawsuit," he says. "There's no worldwide security issue that affects us more than the funding of terrorism. The fact that libel laws are being used to chill unvarnished academic writing on this subject is pretty frightening. So it's a very serious matter."
Laws and Librarians
Lawmakers have begun to agree. The New York State Legislature recently passed what's known as Rachel's Law or the Libel Terrorism Protection Act, inspired by Ms. Ehrenfeld's case. It protects New York-based writers and publishers from having foreign libel judgments enforced against them by New York courts—unless the country where the judgment came down meets or exceeds First Amendment standards. It also makes it easier for individuals to ask New York courts to declare foreign libel judgments invalid. "Without this statute, an author could be forced to live indefinitely under the pall of a libel judgment, deterring publishers from disseminating that author's work," according to a news release announcing that Gov. David A. Paterson signed the bill into law on May 1.
Bills have been introduced in Congress this year that would offer similar protections nationwide. The House version, HR 6146, was introduced on May 22 by Steve Cohen, Democrat of Tennessee, with 16 cosponsors. A more comprehensive Senate bill, S 2977, the so-called Free Speech Protection Act of 2008, was introduced on May 6 by Arlen Specter, Republican of Pennsylvania, and Joseph I. Lieberman, Independent of Connecticut.
In Britain, however, there are few signs of change in its libel laws. According to Mr. Bloom, courts there have become slightly more open to the idea of protecting published information that relates to the public interest. In most cases, though, the desire to protect reputations trumps the public's right to know.
What plaintiffs might consider, however, is that even if they succeed in having a review pulled or a book pulped, once something has been published, it is very hard to make the offending material disappear altogether. Once someone purchases a copy of Alms for Jihad—or any other work—they can do with it what they like. If the buyer happens to be a university or reference librarian in the United States, the book stands a good chance of remaining accessible, particularly if it has been the subject of controversy.
The American Library Association counsels librarians in the United States "that they own those books as a piece of property, and they are entitled to retain those books on the shelves," says Deborah Caldwell-Stone, deputy director of the association's Office for Intellectual Freedom. "In the interest of providing access to information, which is any library's goal, we say that retaining the book is a good thing so that people can judge the controversy for themselves."
Her group has heard reports that some librarians have moved Alms for Jihad into their rare-book collections to protect it. The rarer something is, the more desirable it tends to become.
Digitized materials, however, may be most vulnerable to being excised or lost. Database aggregators such as JSTOR or Ebsco or ProQuest that disseminate digital versions of published works may not be free to ignore publishers' instructions to do away with contested material. And when works are digitized, the print version sometimes ceases to exist anyway.
"We're concerned about the removal of content from databases," Ms. Caldwell-Stone says. "The print resource is difficult to find or even destroyed after digitization, and then somebody litigates over the content and the content is removed." Cornell University recently fought off such an attempt by a former student who was concerned that an article about him in the student newspaper from the 1980s had been put online (The Chronicle, June 6).
Librarians do more than just preserve controversial materials; they are also keepers of the history of attempts to do away with them. Barbara M. Jones is university librarian at Wesleyan University and a member of the executive board of the Free Access to Information and Freedom of Expression committee of the International Federation of Library Associations and Institutions. She recalls the days when the Soviet government would send out replacement pages for the Great Soviet Encyclopedia—along with a razor blade for slicing out the old pages. At the University of Illinois at Urbana-Champaign, where she used to work, the librarians would leave the original volumes intact and keep the substitute pages—and the razor blades—as part of the documentary record.
Now, when she gets a notice like the one the College Art Association sent out to its institutional subscribers asking them to emend Mr. Massad's review in Art Journal, she keeps the notice "as evidence of attempted censorship that we are refusing to comply with."
And Alms for Jihad? Ms. Jones reports that "I'm proud to say that that book—well, it's checked out right now—but it's on our shelves."
As she sees it, lawsuits are not the way to settle disputes over scholarship, no matter how cantankerous the arguments get. "Instead of removing an article or a book, we need to provide a forum for ideas," she says. "It could be a letter to the editor, protesting. It could be blogs. There are many ways to create intellectual discourse without suing somebody."