Thursday, November 03, 2005

A Case for Libel

We respect free speech--it is absolutely necessary for our democracy, but we justly outlaw libel. At issue is a simple case of libel, i.e. the communication to third parties of defamatory information which is untrue, stated as fact, and believable. In particular, the accusations of making objectively threatening communications, evading a "ban" (understood as a security feature), as well as a hodge podge of "harassing", "stalking" accusations.

Since the libel was coincident with a direct communication to academic supervisors by another "professional" academic, it would be foolish to ignore it. The record must be corrected since it is searchable, verifiable, and otherwise permanent. This is similar to correcting our credit records before credit reporting and review became formalized. How others have related these facts is most appropriately a statement on themselves and their values.

Let's examine the facts. Hettle wrote ( PDF backup ):
Just to clarify: I contacted Paul's advisers after he sent me threatening email.

I'm not going to link to the guy's blog, but he is clearly behaving in an unprofessional manner over there, just as he did here last night.

What I suggested to P.D.'s advisers was not that they destroy his academic career, but simply that they might want to have a chat about professionalism and civility.

As Paul believes his behavior was on the up and up, he should have nothing to worry about.

That said, I do hope Paul's behavior stops. Graduate students aren't all that professionally accountable because advisers have a stake in their student's success.

But as I can testify, assistant profs are in a highly accountable, indeed vulnerable position. If PD finishes his diss. and gets a real job, (a big if), and continues his obsessive behavior, he won't last long as an academic.
The communication of threats is a crime by US Code. It is also a statement of fact. Since I am an identifiable person, the intentional defamation, i.e. the objectively false accusation of potentially criminal behavior, seems to me to be libelous.

I call on Professor Wallace Hettle to issue a public apology.

The publisher of Hettle's libel also makes supporting libelous statements of her own in addition to publishing Hettle's statements.

Here is the first potentially libelous statement. The objectionable phrase is "sexist". This is akin to being called "racist" and is stated as a matter of fact. It should be retracted and corrected.

Here is a second. I don't know what she is trying to say. She seems confused and disoriented on her facts on this point (it is probably just a rationalization). Whatever it is it is obviously defamatory since she thinks that it is a cause for censure. The statement should be retracted.

At about this time I make a couple suggestions about effective ways of using Haloscan with DHCP to moderate comments and filter IPs. In response to another commenter's question I ponder why a person with a Canadian IP is so concerned with domestic US politics. These comments have all been deleted by bitchphd. At that point Wally jumps in and throws this all into a something that goes beyond mere repartee. A professor who was tracking the discussion comments that he saw nothing unprofessional on my part. Nonetheless, in that same thread the very next day, bitchphd reiterates and reinforces the libelous statements made by Hettle.
Oh for Christ's sake.

1. I deleted Paul's comments once they got really obnoxious. So what you've read isn't all there was. Let me simply explain that there was at least one implied threat against me--not that I took it seriously.

2. I've emailed Wally privately about emailing Paul's department. For the record, I would not have done it--and I didn't do it. I'm responsible for what happens on this forum; I can't control what happens out of it.

3. Agreed, however, that inasmuch as this is my forum, I *am* responsible for the impressions given on it. For the record, then: I don't think Wally should contact Paul's department, I do think Paul is an ass, Paul's been banned from commenting on this forum (unless he starts spoofing ips again). That should be an end of it, in my opinion.

Everybody happy now? Good.
Spoofing is defined as
A technique used to gain unauthorized access to computers, whereby the intruder sends messages to a computer with an IP address indicating that the message is coming from a trusted host. To engage in IP spoofing, a hacker must first use a variety of techniques to find an IP address of a trusted host and then modify the packet headers so that it appears that the packets are coming from that host.
This idea is ridiculous on its face. Why would anyone "spoof" an IP to post a comment where anonymous posting is permitted? Not only that, but the "banning" by Haloscan is by an IP filter. Since IPs change under DHCP (the most common IP assignment method) a subnet should be filtered, not just an individual IP. I suggested 128.###.###.### (Maybe you have to be a geek to see the humor in this). However, since the statements by BPhD are false and potentially harmful to my reputation among those that don't follow the details of Haloscan filters, I request a correction and retraction of these and other similar statements. The claim that she was threatened should also be corrected and retracted. No one else seems to have perceieved such a threat (and I made none). These implicitly "threatening" comments were conveniently deleted by the libelant herself. What were they? She does not say yet her claims mimics nicely Hettle's libel. Is this by design or by thoughtlessness?

We have established that sending threatening communications is defamatory and that damages are involved. We also have that Hettle's account is in dispute. While BPhD acknowledges that she is responsible for impressions given by the commenters, what does she do about it? Instead of deleting the libel, she instead adds her own libelous statements to the mix without even the slightest bit of factual support other than her assertion laced with derisions. And all this from an academic? I don't see why we should stand for it.

OK, let’s go through a basic wash of the qualifiers of libel applied to this case through a standard source of guidance in order to define the issues better. I've had the opportunity to hear some pertinent criticism so let’s incorporate those into where we stand today. Here are the basic criteria:
1. A false and defamatory statement concerning another;
2. The unprivileged publication of the statement to a third party (that is, somebody other than the person defamed by the statement);
3. If the defamatory matter is of public concern, fault amounting at least to negligence on the part of the publisher; and
4. Damage to the plaintiff.

According to that same source, damages are "typically to the reputation of the plaintiff, but depending upon the laws of the jurisdiction it may be enough to establish mental anguish." The defamation may be "per se", i.e. there is a presumption of damages depending on the jurisdiction. Again, following the guidance per se defamation includes:
* Attacks on a person's professional character or standing;
* Allegations that an unmarried person is unchaste;
* Allegations that a person is infected with a sexually transmitted disease;
* Allegations that the person has committed a crime of moral turpitude;
Wally's and his friend’s defamation are of the first sort although I could also argue the last case as well.

Some jurisdictions demand that the defendant be given the opportunity to apologize. I have done that. All conditions appear to be satisfied.

Now let’s look at the defenses.

Was the defamation simply a matter of opinion?
My claim is to the statement of fact of sending threatening e-mails and a yet to be resolved question of "spoofing IPs". Lets concentrate on the former claim.

Was the statement truthful?
Were the e-mails sent and were they threatening. I have reproduced the e-mails here and claim that on their face they are not threatening, implicit or explicitly. When the defendants claim that the e-mails were "threatening" they are not saying that they felt threatened, but rather that the content of the e-mails is threatening to the reasonable observer. They are characterizing the content of the e-mails, not stating their personal feelings. The burden to show truth is on the defendants. They have yet to offer this defense to my knowledge.

Other common defenses are not applicable to the facts of this case.

There is a question as to whether I am a public figure. I have asserted that I am a private individual despite the fact that I also write a blog that has my mug prominently displayed. If I am a public figure, all I need to show is that the defamation was made with "actual malice". Since it appears that Wally made no attempt to verify the defamatory statements that he asserted as true to the advisors one day after planning the notification it seems that he demonstrated this malice as well as the common law definition of the term. However, at the time of the defamation, I claim that I was not even a "limited public figure". If I were, then everyone who posts comments under their own name on the interenet is a public figure. That would be absurd and contrary to good public policy of democratic accountability.

Here is what the source says of limited pubic figures:
A person can also become a "limited public figure" by engaging in actions which generate publicity within a narrow area of interest. For example, a woman named Terry Rakolta was offended by the Fox Television show, Married With Children, and wrote letters to the show's advertisers to try to get them to stop their support for the show. As a result of her actions, Ms. Rakolta became the target of jokes in a wide variety of settings. As these jokes remained within the confines of her public conduct, typically making fun of her as being prudish or censorious, they were protected by Ms. Rakolta's status as a "limited public figure".
The article continues that a lawsuit may not be a good idea if the publication of the lawsuit generates more awareness of the taint. This is a good point. However, in the age of Google, the ability of hiring departments to locate these pejorative comments are great. So while many were not aware of these comments before the lawsuit, the people that are most relevant, i.e. in the risk analysis, those that might make themselves aware for a directed purpose should be presumed to be already aware. Neglecting to defend against such defamation appears extremely risky to me. I don't think it would be prudent to take that risk.


Update 15 Nov 2005
This is the text of the Hettle email as received from one of the recipients:

Yesterday and last night Paul Deignan spent in "trolling" a feminist academic web site with disruptive and abusive comments.

This is a highly visible liberal site. He was banned, but used his computer expertise to defeat the ban and taunt the host of the site.

This kind of behavior is not unheard of on the net. But Mr. Deignan chose to do this action from a homepage that claims you as a dissertation adviser.

Mr. Deignan has a right to free speech. He shouldn't disrupt the discussions of others--it is highly unprofessional. And it is linked to your name.

Might you please advise him to exercise a little discretion in the future. As matters stand, Mr. Deignan appears to be doing a bit more politicking than mechanical engineering.

Thank you,

Wallace
Hettle

The second paragraph is libelous. I am not aware of any action that defeated an IP filter. No comment I attempted to place was rejected until the last comment at which time I knew that BPhd did indeed "ban me" (filter my leased DHCP IP for posting of comments some more than two hours after saying that she was "banning" me). For the record, she can't in reality as long as she allows anonymous commenters. The IP filter of Haloscan is a management tool, not a security tool. Since this is a statement of fact of malicious use of computing machinery, it defames me professionally as an engineer.

I noticed a bit late that Wally's friend also made a defamatory claim that I sent her threatening e-mail so here is the e-mail that I sent. The first is a solicitation sent to several feminist bloggers to pick up on a constructive debate in light of the Alito nomination sent Wed 11/2/2005 8:11 AM (recieved a nice reply from Lauren at Feministe begging out). Wally's friend actually participated in this thread before it was moved up for the nomination debate:
Hello,

You have probably noticed that the debate about abortion tends to stall at the point where one party invokes a particular or another party religious faith or another party invokes blind want.

So here is my challenge to you and your readers, building on the discussion and the premise here: Thinking Critically about Abortion. Is it possible to more forward and explore a possible principled resolution to the debate?

For example, I think there is something to be said of sovereignty of the body, privacy, and liberty as rights emanating from the right to life. You may propose some rationale for balancing, etc.

At this point of the debate, the pro-life position is not seriously challenged and I have some readers who have requested that I reopen a forum for debate. Are you up to it? If so, the best thing might be to see if you can create a post outlining your rationale, one that addresses the framework laid out in my post and hopefully some of the criticisms. If you have a decent argument, I will match your posts and invite others to discuss and contribute from the right.

You have to admit, normal bloggers for all their talk about not being MSM also shy away from this argument. We should take advantage of this.

Paul Deignan
Deignan@ada-vs.com

The second was in response to her reply sent Wed 11/2/2005 2:11 PM:
Read the first line of your response, stopped there after realizing that you had not read it yourself first. (didn’t want to be presumptuous.)

Paul Deignan
Deignan@ada-vs.com

-----Original Message-----
From: Bitch Ph.D. [mailto:bitchphd@yahoo.com]
Sent: Wednesday, November 02, 2005 10:18 AM
To: Paul Deignan
Subject: Re: Thinking Critically about Abortion

Since you say you're a Ph.D. candidate, a little advice:

1. Don't insult people and then ask them to do things for you.
2. Don't make assertions about the limitations of a debate without doing your research; I myself have written pieces on abortion that go beyond where you say the "debate tends to stall."
3. Don't try to set people up to act as your strawman; this doesn't incur good will.
4. Don't invite people to participate in a debate when you're unfamiliar with their work--you run the risk (as here) of asking them to rearticulate arguments they've already published.

That's "Read" as in "red"--past tense. Admittedly, PIMF. (daggling edits)


Update 6 Dec 2005:
Still, no retraction and apology from the blog publisher. A competent attorney has been retained and has requested corrections. Note that blog publisher and Haloscan are US companies so I the tort can be tried in US courts.

There is the question of establishing the identity of the libellant. From Paypal:
We disclose information in response to a subpoena, warrant, court order, levy, attachment, order of a court-appointed receiver or other comparable legal process, including subpoenas from private parties in a civil action.

Going through the comments I noticed that my IP from my DHCP lease runs for about a week and I have verified that it did not change over the time period in question so it would not have been possible that I would have unknowingly or knowingly skirted an IP filter by a reboot or refresh. The defendant, of course, knows this already since she erected the filter and since the comments from Haloscan show the IPs to the administrator. So her claim that this was her perception is a lie. Maybe a reconstructed cognition, imagination, wishful thought, but not a perception--perceptions require information from the senses coherent with the thought. With no information indicating a techical skirting of a filter, how could there be the perception?

So we will see. The fact that there is a legal solution on the table never eliminates the possibility of negotiated settlements. In my judgment, in this particular case, the legal option was necessary for movement towards a resolution. The proof is the Hettle settlement. Unfortunately, due to the extremely obstreperous tack taken by the BPhD blogger from the onset, a directly negotiated correction was not possible. Apparently there was money to be made in creating controversy.