Libel action against McMaster librarian raises Academic Freedom issues

InsideHigherEd has confirmed that Edwin Mellen Press has filed libel actions in Ontario Superior Court against Dale Askey, a librarian at McMaster University and the University. The action is based on a 2010 review about the publisher that Askey posted on his on his blog. The review assessed the quality of the Mellon’s books, which is a core function of professional librarians. The InsideHigherEd piece, written by Colleen Flaherty quotes Askey as saying:

“It was, as such, my job to assess the quality of books, and I did so based on many years of experience in the field . . . As budgets decrease, the necessity to be more discerning increases, yet libraries have reduced their qualified staff numbers over the years. As a qualified and experienced librarian, I was sharing a professional opinion for consumption by peers.”

The review, posted under the title of “The Curious Case of Edwin Mellen Press,” was critical of the publisher’s practices on several grounds. (The posting itself is attached to the first Statement of Claim)

While the University itself has not issued any statement in support of its Associate University Librarian, the Canadian Association of University Teachers (CAUT) was quick to come to Askey’s defense.  The InsideHigherEd story quotes CAUT Executive Director James Turk as saying that the suit is deeply concerning and a clear attempt to silence Askey’s exercise of academic freedom by legal action. Turk adds that one of the most disturbing aspects of the case, is that McMaster has yet to provide Askey with legal support.

Other commentators have also supported Askey, including Oxford Law Prof Leslie Green, who is also affiliated with McMaster.  In a comment posted on a Leiter Report assessment of academic publishers in philosophy  (which ranked Mellon 34^th out of 34) Green said that

No one likes bad reviews; but Mellen’s approach is not to disprove the assessment, pledge to improve its quality, or reconsider its business-model. It is to slam McMaster University and its librarian with a three million dollar lawsuit in the Ontario Superior Court, alleging libel and claiming massive aggravated and exemplary damages. The matter is pending.

The lawsuit is threadbare. With respect to the parts of Mellen’s list with which I am familiar, the librarian’s statements noted above are all true and the quality judgments are correct. (And this survey suggests that would be a common assessment.) Moreover, on the facts in this situation, it is obviously fair comment, and public policy considerations strongly suggest that university librarians enjoy a qualified privilege with respect to their assessments of the books they consider buying for their universities. It would be a disaster for universities, students, researchers and the taxpayer if aggrieved publishers were permitted to silence discussions of the quality of their publications by threats of lawsuit.

Like CAUT’s James Turk, Greene was also critical of the McMaster administration for failing to come to the librarian’s defense.

McMaster University’s response to this appalling tactic has been surprising. Public silence. No one at McMaster has spoken in defense of the librarian or the University; no University administrator has pushed back against the crude threat to academic freedom that this represents. (But then the President of McMaster’s list of the seven ‘McMaster Principles’ omits any mention of academic freedom.) Are the McMaster faculty, administration, and faculty associations already so cowed by libel-chill that they are afraid to speak up? Or are they unaware of Mellen’s attack? Or—and this is just as worrying—is it that McMaster values its professional librarians so little that it is willing to let them bear the brunt of such harassment, so long as the University itself can avoid vicarious liability?

Let’s hope someone at McMaster forcefully says ‘enough’ to this sort of bullying. Universities have a negative duty not to abridge the academic freedom of their members; they also have a positive duty to see to it that others do not do it either.

A posting in the Academic Librarian (a blog maintained by Princeton University librarian Wayne Bivens-Tatum) says that “academic librarians should consider the implications of this lawsuit and its potential attack on academic freedom and the public expression of professional opinions on relevant subjects.”

This is an important case for librarians and their associations to be watching. The newly formed Canadian Association of Professional Academic Librarians (CAPAL) has stated

CAPAL wants to affirm the right of academic librarians to voice their opinions about materials they collect, and this includes the publishers from whom these materials are purchased. CAPAL will be watching to see whether the suit has any merit but want to state emphatically that we believe this to be a threat to academic freedom not just at McMaster University but academia everywhere.

It will be interesting to see if the other established library associations like the Canadian Library Association or the Canadian Association of Research Libraries will join CAUT and CAPUL in issuing statements defending the academic freedom of librarians.