From caf-talk Caf Apr 12 21:50:46 1994 From: kadie@eff.org (Fwd:) Newsgroups: alt.comp.acad-freedom.news Subject: First-hand report from Fort Hays State U. (Kentucky) Date: 12 Apr 1994 21:50:44 -0400 Message-ID: <2ofj5k$cac@eff.org> [A repost - Carl] [paraphrase: [A student at Fort Kays State University (Kentucky)] "the second time [i got my acct. pulled ...] they pulled it because of my obsesive usage of the words "shit" and "fuck" on the notes sys. we have, [...] i had to sign a contract, against better judgment, to never curse again"] From: kadie@eff.org (Carl M. Kadie) Newsgroups: alt.comp.acad-freedom.talk Subject: First-hand report from Fort Hays State U. (Kentucky) Date: 12 Apr 1994 18:35:48 -0400 Message-ID: <2of7o4$8u9@eff.org> [From email. Posted with permission. -cmk] =================== okie...i recently read your banned list, and thought i would tell you my story, not to brag...but it seems to match the ones on the list first off...i'll tell you a little about the town, Hays, KS, home of Fort Hays State Uni. is a bible bangin right wing town...and small...pop 30k when i moved here to attend college, i got heavily into computers, i am by no means a hacker now, or would've even known what one was when i moved here when i got here, i met up w/ a hacker, and from there i learned alot. The first time i got my acct. pulled was for suspicious behavior and alleged harrasment via our sys. here, they thought i was sendin racial/sexual/age/ younameit/ degratory remarks to upper admin, i was not. the second time i got it pulled was the most fun and entertain one...they pulled it because of my obsesive usage of the words "shit" and "fuck" on the notes sys. we have, they also told me security was lookin into becuase i threatened people on the notes, of course, the people they said i threatened told the upper admin that nor did they FEEL threatened did they think they had ever been...but, i had to sign a contract, against better judgment, to never curse again at the end of it, on tape when bein interviewed by the Comp. Center Dir., a reporter friend of mine *who is now my roommate* quoted him *the CCD* as sayin, "I define offensive language as anythin i feel is offensive" kinda openended on that one the next run in i had was not as amusing, one night, the Secret Service showed up at the dorms to arrest my hacker friend, they took me w/ him as an accomplice, and he was charged, i was detained for 6 hours, as well as interviewed by the phone comp., Hays PD, FHSU PD, and of course, Mr. Agent :) the third time it was pulled was beacuse i wasnt goin to be a student any longer, i got it back for a short while b4 they pulled it again recently, *6 weeks back*, i was handed a letter from a FHSU cop, it stated that i no longer was allowed anywhere on campus, not even the library, student union, or the dorms, were i have alot of friends living. all in all, i by no means meant to write you a short novel, just to share my story w/ you, in hopes that you would spread it...as this kind of thing should never happen well, to end it, i have yet to ever be actually charged w/ anythin, just harrassed alot, and i have a general dislikin oof me from the upper admin (this actually affected me when i was told not to eat at a friends for Xmas dinner because his uncle, who works for the computer dept., would be attendin, and he doesnt like me *never meet the man b4*) i havent heard from the Sect Service since last Dec, or the phone company the Hays PD and the FHSU PD and i manage to keep in touch :) like i said, i didnt mean to write a novel, but any part of the above that you wish to use in an update of banned or whatever else you want to use it for... feel free Johnny Paradise =============== --SAA08837.766189593/eff.org-- -- Carl Kadie -- I do not represent EFF; this is just me. =kadie@eff.org, kadie@cs.uiuc.edu = ================= end of repost ================== -- Carl Kadie -- I do not represent EFF; this is just me. =kadie@eff.org, kadie@cs.uiuc.edu = From caf-talk Caf Apr 13 09:25:19 1994 Newsgroups: alt.comp.acad-freedom.news From: kadie@hal.cs.uiuc.edu (Fwd:) Subject: Flaiming forbidden at USF Message-ID: Date: Wed, 13 Apr 1994 13:16:46 GMT [A repost - Carl] [paraphrase: [A student] 'The Associate Dean of the University of San Francisco [a Catholic U.] School of Law stated that "flaming" is against University policies.' Namely: 'Student Honor Code sectin 4.3: "Stealing, damaging, or otherwise MISUSING other Law School or University property or SERVICES."'] From: songyo00@ac.usfca.edu (Song) Newsgroups: alt.comp.acad-freedom.talk Subject: Flaiming forbidden at USF Date: 13 Apr 1994 02:01:17 GMT Message-ID: <2ofjpd$ain@noc.usfca.edu> The Associate Dean of the University of San Francisco School of Law stated that "flaming" is against University policies. Students engaging in flaming will be considered to violate the Student Honor Code sectin 4.3: "Stealing, damaging, or otherwise MISUSING other Law School or University property or SERVICES." Permanent formal penalties will be reflected in the offending students' records. Does this strike anyone as a tad broad and contrived interpretation of an already vague policy? There has already been one incident to my knowledge where a student has been threatened with disciplinary action: me. The formal USF letter stated: "This is a serious charge." Nuff said. Young Song USF School of Law ================= end of repost ================== -- Carl Kadie -- I do not represent any organization; this is just me. = kadie@cs.uiuc.edu = From caf-talk Caf Apr 13 13:43:13 1994 From: kadie@eff.org (Fwd:) Newsgroups: alt.comp.acad-freedom.news Subject: Re: [Fed. Register] U.S. policy on racial harassment Date: 13 Apr 1994 13:43:12 -0400 Message-ID: <2ohavg$1s2@eff.org> [A repost - Carl] [Paraphrase: A critique of the the new U.S. Education Department guidelines on racial harassment: It all but ignores the First Amendment.] From: kadie@eff.org (Carl M. Kadie) Newsgroups: alt.comp.acad-freedom.talk,alt.censorship Subject: Re: [Fed. Register] U.S. policy on racial harassment Date: 12 Apr 1994 21:48:08 -0400 Message-ID: <2ofj0o$c8t@eff.org> Summary: A critique. The new U.S. Education Department guidelines on racial harassment all but ignore the First Amendment. >[Here are the new guidelines from the U.S. Education Deparment for >(among other things) when a university [or grade or high school -cmk] >can be help responsible for a student's harassment of a student. The full policy available on-line. See references. The guidelines's only references to the First Amendment and freedom of speech are these two footnotes: {1} This investigative guidance is directed [...] not at the content of speech. In cases in which verbal statements or other forms of expression are involved, consideration will be given to any implications of the First Amendment to the United States Constitution. In such cases, regional staff will consult with headquarters. {7} Of course, OCR cannot endorse or prescribe speech or conduct codes or other campus policies to the extent that they violate the First Amendment to the United States Constitution. It makes no reference to the federal district court decisions that that have consistently struck down the kind of overly broad and vague policies that this Education Department guidelines seem to implicitly advocate. Those court decisions include: _Doe v. University of Michigan_, 721 F. Supp. 852 (E.D. Mich. 1989) _UWM Post v. Board of Regents of University of Wisconsin_, 774 F. Supp. 1163 (E.D. Wis. 1991) _???? v. Central Michigan University_ (reported in the _Chronicle of Higher Education_, Jan. 12, 1994, p. A4 Why are there no Circuit court decisions? I think because school are not appealing the district-level decisions. Indeed, many are settling before even the district court can make a decision. According to the March 16, 1994 _Chronicle of Higher Education_, p. A17: "In January, the University of Houston settled a multi-million-dollar suit filed by a professor who had been accused of sexual harassment. Houston paid the tenured professor $200,000 for his resignation. [That article also lists several on going lawsuits.] According to UPI report on Sept. 8, 1992, "Conservative students at Stephen F. Austin University and school officials have apparently reached a settlement in a free speech dispute that stemmed from fliers the group posted a year ago." A fraternity at the U. of California at Riverside was banned for offensive T-shirts. They sued and the university settled. By the terms of the settlement the fraternity is is reinstated (but must comply with its national headquarter's sactions. University administrators have to take First Amendment senstivity classes. What would the Supreme Court say if it was every given a case? Well, in the _Rust v. Sullivan_ decision, the Supreme Court said: "Similarly, we have recognized that the university is a traditional sphere of free expression so fundamental to the functioning of our society that the Government's ability to control speech within that sphere by means of conditions attached to the expenditure of Government funds is restricted by the vagueness and overbreadth doctrines of the First Amendment, Keyishian v. Board of Regents, 385 U. S. 589, 603, 605-606 (1967)." The Education Department should learn a little about academic freedom and freedom of speech. - Carl ANNOTATED REFERENCES (All these documents are available on-line. Access information follows.) ================= law/racial-harassment.us ================= The new guidelines from the U.S. Education Deparment for (among other things) when a university can be help responsible for a student's harassment of a student. The guidelines were published in the Federal Register on March 10, 1994. ================= law/doe-v-u-of-michigan ================= * Expression -- Hate Speech -- Doe v. U of Michigan This is Doe v. University of Michigan. In this widely referenced decision, the district judge down struck the University's rules against discriminatory harassment because the rules were found to be too broad and too vague. ================= law/uwm-post-v-u-of-wisconsin ================= * Expression -- Hate Speech -- UWM Post v. U Of Wisconsin The full text of UWM POST v. U. of Wisconsin. This recent district court ruling goes into detail about the difference between protected offensive expression and illegal harassment. It even mentions email. It concludes: "The founding fathers of this nation produced a remarkable document in the Constitution but it was ratified only with the promise of the Bill of Rights. The First Amendment is central to our concept of freedom. The God-given "unalienable rights" that the infant nation rallied to in the Declaration of Independence can be preserved only if their application is rigorously analyzed. The problems of bigotry and discrimination sought to be addressed here are real and truly corrosive of the educational environment. But freedom of speech is almost absolute in our land and the only restriction the fighting words doctrine can abide is that based on the fear of violent reaction. Content-based prohibitions such as that in the UW Rule, however well intended, simply cannot survive the screening which our Constitution demands." ================= law/young-conservatives-v-sau ================= * Expression -- Offensive -- Young Conservatives v. SAU A UPI story that tells how Stephen F. Austin University originally banned a group's "sexist" flyers, but when challenged, the ban was lifted and a cash settlement was given to the students whose free-speech was violated by the ban. ================= law/uc-riverside ================= Paraphrase of a newspaper report: A fraternity at the U. of California at Riverside was banned for offensive T-shirts. They sued and the university settled. By the terms of the settlement the fraternity is is reinstated (but must comply with its national headquarter's sactions. University administrators have to take First Amendment senstivity classes. ================= law/jeffries,_leonard ================= * UPI article on the Leonard Jeffries case On May 18, 1993, a federal jury ordered the City University of New York to pay professor Leonard Jeffries $400,000 because the jury determined that the university fired Jefferies because of an antisemantic speech he gave. ================= academic/speech-codes.aaup ================= * Speech Codes (AAUP) On Freedom of Expression and Campus Speech Codes Expression - An official statement of the American Association of University Professors (AAUP) It says in part: "On a campus that is free and open, no idea can be banned or forbidden. No viewpoint or message may be deemed so hateful or disturbing that it may not be expressed." ================= ================= If you have gopher, you can browse the CAF archive with the command gopher gopher.eff.org These document(s) are also available by anonymous ftp (the preferred method) and by email. To get the file(s) via ftp, do an anonymous ftp to ftp.eff.org (192.77.172.4), and then: cd /pub/CAF/law get racial-harassment.us cd /pub/CAF/law get doe-v-u-of-michigan cd /pub/CAF/law get uwm-post-v-u-of-wisconsin cd /pub/CAF/law get young-conservatives-v-sau cd /pub/CAF/law get uc-riverside cd /pub/CAF/law get jeffries,_leonard cd /pub/CAF/academic get speech-codes.aaup To get the file(s) by email, send email to ftpmail@decwrl.dec.com Include the line(s): connect ftp.eff.org cd /pub/CAF/law get racial-harassment.us cd /pub/CAF/law get doe-v-u-of-michigan cd /pub/CAF/law get uwm-post-v-u-of-wisconsin cd /pub/CAF/law get young-conservatives-v-sau cd /pub/CAF/law get uc-riverside cd /pub/CAF/law get jeffries,_leonard cd /pub/CAF/academic get speech-codes.aaup -- Carl Kadie -- I do not represent EFF; this is just me. =kadie@eff.org, kadie@cs.uiuc.edu = ================= end of repost ================== -- Carl Kadie -- I do not represent EFF; this is just me. =kadie@eff.org, kadie@cs.uiuc.edu = From caf-talk Caf Apr 13 17:04:20 1994 Newsgroups: alt.comp.acad-freedom.news From: kadie@hal.cs.uiuc.edu (Fwd:) Subject: AU$40,000 verdict for defamation on internet (text) Message-ID: Date: Wed, 13 Apr 1994 18:32:06 GMT [A repost - Carl] [paraphrase: "I include -- on a no-warranty-trust-at-your-own-risk basis -- the full text of an email I received this morning containing the text of an unreported decision in Australia, awarading AU$40,000 in damages for libelous statements made on the internet."] From: mfroomki@umiami.ir.miami.edu (Michael Froomkin) Newsgroups: misc.legal.moderated Subject: AU$40,000 verdict for defamation on internet (text) Date: 12 Apr 1994 17:40:44 -0400 Message-ID: <1994Apr12.095519.17413@umiami.ir.miami.edu> I include -- on a no-warranty-trust-at-your-own-risk basis -- the full text of an email I received this morning containing the text of an unreported decision in Australia, awarading AU$40,000 in damages for libelous statements made on the internet. Please address any questions to the author of the message, not me. /\/\/\--START QUOTED TEXT-- Return-path: Received: from chicagokent.Kentlaw.EDU by umiami.ir.miami.edu (PMDF V4.2-15 #2610) id <01HB2LM7Y55S9BVYO1@umiami.ir.miami.edu>; Tue, 12 Apr 1994 02:46:16 EDT Received: from (localhost) by chicagokent.Kentlaw.EDU (5.0/SMI-SVR4) id AA27067; Tue, 12 Apr 1994 01:29:21 +0600 Date: Tue, 12 Apr 1994 01:29:21 +0600 From: Archie Zariski Subject: E-mail and libel Sender: lawprof@chicagokent.Kentlaw.EDU To: Multiple recipients of list Errors-to: ldonahue@chicagokent.Kentlaw.EDU Reply-to: lawprof@chicagokent.Kentlaw.EDU Message-id: X-Envelope-to: mfroomki Content-transfer-encoding: 7BIT Originator: lawprof@chicagokent.kentlaw.edu Precedence: bulk X-Listserver-Version: 6.0 -- UNIX ListServer by Anastasios Kotsikonas X-Comment: List for Law Professors & Lecturers content-length: 17273 I am now appending the judgment in the recent network defamation case in Western Australia as located by law student Inge Lauw: Archie Zariski (zariski@murdoch.edu.au) * Senior Lecturer in Law * * School of Law * * * Murdoch University * * * Murdoch, Western Australia 6150 * * * Ph +619 360 2985 Fax +619 310 6671 * * * * * * >From ilauw@cleo.murdoch.edu.au Tue Apr 12 04:57:51 1994 Date: Mon, 11 Apr 1994 21:06:53 +0800 (WST) From: Inge Lauw To: zariski@csuvax1.murdoch.edu.au Subject: Rindos case IN THE SUPREME COURT OF WESTERN AUSTRALIA BETWEEN DAVID RINDOS and GILBERT JOHN HARDWICK Heard: 25 March 1994 Delivered: 31 March 1994 No 1994 of 1993 (Unreported Judgement 940164) IPP J In this matter I am required to assess damages for defamation. The plaintiff issued an endorsed writ claiming: (i) Damages for libel published by the Defendant and contained on an entry on the DIALx science anthropology computer bulletin board on 26 June 1993. (ii) Damages for libel published by the Defendant and contained in a letter to the Secretary of the Anthropological Association of Western Australia on or about 9 September 1993. (iii) Interest on damages pursuant to Section 32 of the Supreme Court Act at the rate of 8% per annum or such other rate as the Court thinks fit from the 26 June 1993 and 9 September 1993 respectively until judgment or payment of damages The defendant did not enter an appearance to defend and judgement by default was granted to the plaintiff. Thereafter, an order was made that the damages payable by the defendant to the plaintiff pursuant to that judgment be assessed and that evidence be introduced by affidavit. Leave to serve the necessary documents on the defendant by way of substituted service was granted and service was effected as required. It appears that the defendant does not wish to defend the action. In a letter dated 9 September 1993 to the plaintiff's solicitor he stated: "Let this matter be expedited and done with ... If you wish to ... have your client allowed his day in court to air his grievances against Western Australians, then let it be. I can do nothing to prevent it lacking any resources whatsoever to defend myself from whatever charges anyone for that matter might wish to bring against me at (sic) time they see fit." The plaintiff is an anthropologist. He obtained a doctorate from Cornell University in the United States of America in August 1981 and worked for several years at universities in the USA as assistant professor and in other capacities as an anthropologist. In about 1988 he emigrated to Australia. In June 1989 he commenced employment as a senior lecturer in the Department of Archaeology at the University of Western Australia. In November 1989 he was appointed temporary acting head of the Department of Archaeology and in February 1990 he became the acting head of the Department. From March 1991 until June 1993 he was attached to the Geography Department of the University of Western Australia as senior lecturer in archaeology. He ceased being engaged at the University after June 1993 Numerous publications of the plaintiff's works have appeared throughout the world, including translations into languages other than English. He has given papers at numerous national and international conferences and has given lectures at different universities around the world. His work has been cited regularly in papers by other academics. He is well known internationally in the areas of anthropology and archaeology. While the plaintiff was employed at the University of Western Australia, a review took place as to whether he should be granted tenure. In early March 1993 the Tenure Review Committee recommended that he be denied tenure on the ground of insufficient productivity. This was made formal in June 1993 and the plaintiff was dismissed by the Vice Chancellor of the University with effect from 13 June 1993. There was a large amount of interest, internationally, about the actions of the University of Western Australia in denying the plaintiff tenure and in dismissing him. On 23 June 1993 a message appeared on a worldwide computer network bulletin board, inserted by one Hugh Jarvis, an anthropologist in the United States of America. The message criticised the University of Western Australia for refusing to grant tenure to the plaintiff and for dismissing him. The computer bulletin board on which the message appeared is devoted to "science anthropology". It is part of an international computer news service to which persons can have access through computers and by which users of computers can communicate with each other. Subscribers to or participants in the network utilise their computers to communicate and receive items of interest concerning anthropology. Most major universities throughout the world are participants in the network, which is also used by other persons. The main users are academics and students. There are approximately 23 000 persons worldwide whose computers have access to the bulletin board in question: The bulletin board has a wide international readership. The messages that appear on the bulletin board can remain on the computer of a subscriber or participant for a number of days or weeks, depending on the storage capacity of the computer in question. The types of messages vary. Examples include information on anthropological issues and personalities, debates on anthropological topics and personal messages between anthropologists. The messages come from persons all round the world, but particularly from the United States of America, the United Kingdom, Canada and Australia. Most of the persons who send messages and who view the bulletin board on a regular basis are persons who are working or studying in the general field of anthropology. Items of interest on the bulletin board can be printed on hard copy. Such print outs can be and at times, no doubt, are circulated. Persons who read the contents of the bulletin board and cause messages to be printed include not only the owner of the particular computer, but any person who has access to it, such as academics and university students. On 26 June 1993, in reply to the message published by Hugh Jarvis, the defendant caused a message to be published on the bulletin board. According to the material supplied by the defendant to the computer, it was transmitted by him from a computer in Derby, Western Australia. The distribution was to "the world", which means that the message was visible, and would have been able to have been read, on every computer around the world able to receive the science anthropology news bulletin. The relevant passages in the message that the defendant so sent, are as follows: "Well, here we have my old mate Hugh Jarvis, the guy responsible for the first anthropologist (myself) being denied access to ANTHRO-L, now crying over one of his fellow Americans being the first to be denied tenure at an Australian University. "Sorry, UWA is my own turf, Hugh. I know very well that problems there are associated with the Anthropology Department there (now including the Archaeology Department) but I am also well aware of the wider social and political issues associated with our discipline here in Western Australia centrally focussed around Aboriginal Affairs. "The first matter I would raise in comment here, is the very public difference between myself and Dr Rhindos (sic) on the matter of categories in Aboriginal culture, played out on this very news group. In that case Dr Rhindos (sic) quite openly attempted to discredit my own lifetime's experience with Aboriginal people on the basis of his one phone call apparently to an outstation! "I have met the man myself, and my impression is that his entire career has been built not on field research at all, but on his ability to berate and bully all and sundry on the logic of his own evolutionary theories. In the local pub, drinking and chain smoking all the while for that matter. "Secondly, and this is rumours passed to me by several reputable and long-standing Western Australian anthropologists as to Dr Rhindos' (sic) 'Puppy Parties' focussed I am told on a local boy they called 'Puppy'. Hmm, strange dicey behaviour indeed, especially here in an environment dominated by conservative fundamentalists. "Thirdly, and far more substantially, there are extremely serious questions arising here concerning an ongoing political campaign here against the Anthropology Department, most notably targetting (sic) the department's long-standing support for Aboriginal Land Rights against powerful international mining lobbies. This particular episode comes of great interest right in the midst of our national debate over the effects of the High Court's finding last year in favour of Eddie Mabo. "I am sorry Hugh, but if someone for whom I might have a little more respect than yourself had posted what you did, I would have hesitated to post my own reply to your scurrilous attack on the University of Western Australia, I can only imagine prompted by the powerful vested interests lacking the guts and integrity to come out and speak honestly on important issues deeply affecting Western Australia. If you are on their payroll, I detest your involvement in this matter; if you are not on their payroll I can only assume you are a complete fool. "As has been Dr Rhindos (sic), apparently believing that since he is an American he is somehow immune from the criticism of his non-American colleagues in *their* country. "In the meantime your hysteria, in my case earlier when you decided unilaterally to deny me access to ANTHRO-L, and in this present case now, does not in any way bring you credibility. "The rest of you professors, lecturers, staff, students, professionals and sundry lurkers and lookers-on, I do ask that you think critically about what is going on here. Please be a little more intelligent than to be swayed by grossly exaggerated and one-sided campaigns by a media to which only one party has ready access. Please think about which powerful politicians and vested interests might be behind this whole business. "Please think that the real victims are the Aboriginal people here. Thank you. Gil Hardwick" It was submitted that the publication of 26 June 1993 contained five defamatory imputations, namely: (a) The plaintiff engaged in sexual misconduct, in particular paedophilia with a "local boy" called "Puppy". (b) The plaintiff has no genuine academic ability in his field and has not based his theories on appropriate research but has simply depended upon berating and bullying others. (c) The plaintiff "is against Aboriginal land rights and Aboriginal people" and is a racist person. (d) The plaintiff is not a genuine anthropologist but a tool of mining corporations. (e) The plaintiff drinks to excess and spends most of his time "in the local pub" I accept that words in the message published by the defendant give rise to an imputation that the plaintiff engaged in sexual misconduct with a "local boy". I also accept that the message contains the imputation that the plaintiff's professional career and reputation has not been based on appropriate academic research "but on his ability to berate and bully all and sundry". This seriously denigrates his academic competence. I do not accept that the other paragraphs give rise to the imputations alleged. In the course of argument these other imputations were not pressed. The imputation of sexual misconduct, and that relating to the plaintiff's career being based on the ability to "berate and bully" and lack of professional competence are, in my opinion, seriously defamatory of the plaintiff. The inference is that these matters had some bearing on the failure of Dr Rindos to be awarded tenure and his dismissal from the University. These defamatory remarks were published in academic circles throughout the world. I accept the submission made by counsel for the plaintiff that the nature of the remarks is such that they are likely to be repeated, and that any rumours of a like kind that had circulated previously were likely to gain strength from their publication. The other publication of which the plaintiff complains, is a letter dated 9 September 1993 to the plaintiff's solicitor, copy of which was sent by the defendant to the secretary of the Anthropological Association of Western Australia. This letter contained the following remarks: "My further understanding is that Dr Rindos had deliberately launched his now infamous campaign in his attempts to revive an already shattered academic career by constantly, openly and publicly seeking to discredit those against whom he had acted as head of the then Department of Archaeology, when he might well have approached them to discuss whatever irregularities he is alleged to have uncovered in the first instance. He might very well have settled down to administer his department competently and professionally, and like the rest of us do some research, to present his papers and to seek the review of his peers. "His persist failure to do as I understand it is in fact the very reason for the University's decision to finally deny him his tenure." The imputation from the above quoted remarks is that the plaintiff did not administer his Department competently and professionally, and is again a denigration of his professional competence. There has been no attempt by the defendant to justify these defamatory remarks or set up any other defence to them. I repeat that the plaintiff is well-known internationally in academic anthropological and archaeological circles and that he is a person of high standing in those circles. The defamatory remarks published are likely to have a most harmful effect upon that standing. I am also satisfied that the plaintiff has endured serious personal suffering as a result of the defamation. There is evidence from a consultant psychiatrist that the publication was the cause of a marked exacerbation of symptoms of major depression and anxiety. While the two publications were different, there was a clear and close relationship between them. Their effect was similar to that of the two defamatory publications considered in Carson v John Fairfax & Sons Limited (1992) 113 ALR 577 where Mason CJ, Deane, Dawson and Gaudron JJ said (at 584): "The effect of the defamatory publications was cumulative. The second compounded the harm to the appellant caused by the first: it renewed and expanded the hurt to his feelings; it exacerbated the damage to the reputation which he had hitherto enjoyed in legal, commercial and other circles." In such circumstances, as their Honours remarked (at 585): "... it is permissible and sensible in a case where claims for closely related defamatory publications have been heard together for a jury, in determining what is the appropriate compensation to be awarded to the plaintiff in respect of each publication, to take account of the aggregate 'harm' suffered by the plaintiff by reason of both of them." In Coyne v Citizen Finance Limited (1991) 172 CLR 211 Mason CJ and Deane J approved the statement by Diplock LJ in McCarey v Associated Newspapers Limited (No 2) [1965] 2 QB 86 at 107 that the injuries sustained by the defamed person may b: "classified under two heads: (1) the consequences of the attitude adopted towards him by other persons as a result of the diminution of the esteem in which they hold him because of the defamatory statement; and (2) the grief or annoyance caused by the defamatory statement to the plaintiff himself." Also in Coyne v Citizen Finance Limited (at 235) Toohey J referred, with approval, to the following remarks of Windeyer J in Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 150: "It seems to me that, properly speaking, a man defamed does not get compensation for his damaged reputation. He gets damages because he was injured in his reputation, that is simply because he operates in two ways - as a vindication of the plaintiff to the public and as consolation to him for a wrong done. Compensation is here a solatium rather than a monetary recompense for harm measurable in money." I accept that the defamation caused serious harm to the plaintiff's personal and professional reputation. I am satisfied that the publication of these remarks will make it more difficult for him to obtain appropriate employment. He suffered a great deal of personal hurt. The damages awarded must compensate the plaintiff for all these matters and must vindicate his reputation to the public. In all the circumstances I consider that the plaintiff should be awarded the sum of $40 000 in respect of damages. I also consider that the plaintiff should be awarded interest on that sum at the rate of 8% per annum from 9 September 1993. /\/\---END QUOTED TEXT --- -- A.Michael Froomkin | +1 (305) 284-4285; +1 (305) 284-2349 (fax) U.Miami Law School | MFROOMKI@UMIAMI.IR.MIAMI.EDU PO Box 248087 | "When ideas fail, Coral Gables, FL 33146 USA | words come in very handy." - Goethe A.Michael Froomkin | +1 (305) 284-4285; +1 (305) 284-2349 (fax) U.Miami Law School | MFROOMKI@UMIAMI.IR.MIAMI.EDU PO Box 248087 | Coral Gables, FL 33146 USA | It's warm here. ================= end of repost ================== -- Carl Kadie -- I do not represent any organization; this is just me. = kadie@cs.uiuc.edu = From caf-talk Caf Apr 16 16:13:22 1994 From: kadie@eff.org (Fwd:) Newsgroups: alt.comp.acad-freedom.news Subject: Successful defamation suit from Internet post. Date: 16 Apr 1994 16:13:21 -0400 Message-ID: <2opgt1$5pp@eff.org> [A repost - Carl] [paraphrase: "A statement posted on Internet was the basis of a successful defamation court action in the Supreme Court of Western Australia. Ex University of WA academic, Dr David Rindos sued anthropologist Gil Hardwick for defamatory statements in Sci.anthropology and won an award last week of A$40,000. (US$28,000)"] From: J.Newman@info.curtin.edu.au (John Newman) Newsgroups: alt.comp.acad-freedom.talk Subject: Successful defamation suit from Internet post. Date: Wed, 6 Apr 1994 03:35:15 GMT Message-ID: This is not directly an academic freedom issue but you may be interested in this case: A statement posted on Internet was the basis of a successful defamation court action in the Supreme Court of Western Australia. Ex University of WA academic, Dr David Rindos sued anthropologist Gil Hardwick for defamatory statements in Sci.anthropology and won an award last week of A$40,000. (US$28,000) I wont repeat the actual statements here (even though the newspapers did). You can read more in Sci.anthropology. Justice Ipp of the Supreme Court was reported to have said: "I accept that the defamation caused serious harm to Dr Rindos's personal and professional reputation. I am satisfied that the publication of those remarks will make it more difficult for him to obtain appropriate employment. He suffered a great deal of personal hurt, etc...." (Rindos was unemployed at the time of the court case.) Rindos apparently plans more defamation actions as a result of this success. I understand that this is the first time a statement on Internet (AARNet in Australia) has been the basis for a successful defamation case in Australia. /\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\ \ John Newman J.Newman@info.curtin.edu.au / / Computing Centre, "There is less to this \ \ Curtin University, than meets the eye." / / Perth, Western Australia - Tallulah Bankhead \ \/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/ ================= end of repost ================== -- Carl Kadie -- I do not represent EFF; this is just me. =kadie@eff.org, kadie@cs.uiuc.edu = From caf-talk Caf Apr 16 16:17:38 1994 From: kadie@eff.org (Fwd:) Newsgroups: alt.comp.acad-freedom.news Subject: [ALAOIF] Fanny Hill, CICA, New Zealand, and Censorship Date: 16 Apr 1994 16:17:36 -0400 Message-ID: <2oph50$5ur@eff.org> [A repost - Carl] [paraphrase: [Anne Levinson Penway, Assistant Director of the Office For Intellectual Freedom of the American Library Association (ALA)] "Motivation is crucial in First Amendment analysis - if the material was removed because a government official or agent *disagreed with the ideas expressed, and/or found the ideas personally offensive and used the official position to suppress or exclude them on that basis, then that official has acted outside the bounds of his authority and violated the First Amendment."] From: kadie@eff.org (Carl M. Kadie) Newsgroups: news.admin.policy,alt.comp.acad-freedom.talk Subject: [ALAOIF] Fanny Hill, CICA, New Zealand, and Censorship Date: 13 Apr 1994 16:45:30 -0400 Message-ID: <2ohlla$6sv@eff.org> [This is a repost of a note by Anne Levinson Penway, Assistant Director of the Office For Intellectual Freedom (OIF) of the American Library Association (ALA). She posted it to the ALAOIF e-mailing list. It is reposted with permission. To join the ALAOIF list, send email to "listserv@uicvm.uic.edu" with line "sub alaoif ". - cmk] From: Anne Levinson Penway [u35907@uicvm.uic.edu -cmk] Subject: Re: Fanny Hill, CICA, New Zealand, and Censorship ======================================================================== On Sat, 2 Apr 1994 16:03:45 -0800 Jon Noring said: >Hello, > >I'm posting this message to this mailing list to get some opinions from >the ALA experts here. Aspects of this touch upon issues of interest to you. > [Fanny Hill saga deleted] Below is quoted a segment of a policy written, according to Mr. Noring, after the Fanny Hill flap had died down a bit: > "** Files NOT Accepted at ftp.cica.indiana.edu > >As is a standard practice with most anonymous-ftp sites, certain >programs, files, or software are outside the mission of archive >operations, and therefore will NOT be selected for inclusion in the >collection. These files can include (but are not limited to) any >software: containing prejudiced or discriminatory material related to >(but not limited to) religion, politics, race, ethnicity, gender, >sexuality, etc.; that is adult or sexually-explicit in nature; or >otherwise considered unsuitable by the site moderator." > >Anyway, now to bring it to the present, I clearly see the above "policy" >leaves a LOT to be desired, and I wonder if it is even illegal, given that >IU is a public institution. Also, what are the censorship issues involved? > [more stuff deleted] >I await your views and help. > >Jon Noring > Aw, shoot, Mr. Noring -- I followed the entire _Fanny Hill_ saga from beginning to, if not end, at least the last suspension of discussion on most of the Usenet groups talking about it, and I stayed out of it largely because I thought Carl Kadie was doing a very good job of interpreting how library policy might relate, and also because I wanted to see the discussion evolve naturally, expecting most of the points I would have made to get made eventually, which they did. In many ways I think reopening the discussion is beating a dead horse, But there were afew things I don't think were thoroughly explained and a few others not completely addressed, so here's my (as breifly as possible) $0.02: The whole thing struck me as a classic case of the tail wagging the dog. Did CICA have a practice of allowing anyone who got access to upload anything? Were there any generally understood restrictions? If the CICA had established a practice of accepting e-text books, for example, and like files, and if the CICA is presumed to be a unit of or an agent of the publicly supported university, then it seems pretty obvious that the above policy, and the original reasons Mr. Regoli gave for removing _Fanny Hill_ don't hold up, and the above quoted policy violates the First Amendment, not only by setting up impermissible viewpoint discrimination, but vesting the sole authority for determining what gets excluded in one individual, with *no guidelines, standards or criteria*. Libraries operate under written materials selection and/or collection development policies that define the library's mission and the scope of its collection, as well as the criteria for determing what will be included. Almost all such policies include language about the guiding intellectual freedom principles -- that materials will not be excluded due to partisan or doctrinal disapproval, and that the library will strive to provide a diverse collection representing differing and various points of view. Libraries which operate consistent with ALA policy don't exclude materials based upon perceived or potential offensiveness, and the ALA supports the rights of libraries to collect and make available any work they may legally acquire -- that is anything not previously declared illegal and outside the bounds of First Amendment protection by a court of law. On the other hand, there are a lot of objective reasons why things don't get into library collections -- a combination of lack of reviews, no information about author or publisher, budget, space, service population, need, redundancy, etc. *But none of these may permissibly be used as a smokescreen for censorship. If the motivation is to suppress constitutionally protected expression deemed "offensive," then that's censorship.* The _Fanny Hill_ saga illustrated that system administrators/operators might benefit from the experience of librarians in selection of materials and collection management. In Mr. Regoli's defense, it doesn't appear that he had any opportunity to make an objective analysis of whether this submission to the archive was within its mission and scope, and then he blew it by saying exactly the *wrong* thing about why it was pulled off. If the archive has been letting anything at all go up, and then pulling it off after someone complains or because they are worried about offensiveness, they are not only doing things backwards but contrary to long established First Amendment and intellectual freedom principles. The above quoted policy starts out okay, trying to define the mission of the archive, but stumbles very quickly into impermissible, discriminatory criteria -- who gets to decide what's "prejudicial or discriminatory?" Motivation is crucial in First Amendment analysis - if the material was removed because a government official or agent *disagreed with the ideas expressed, and/or found the ideas personally offensive and used the official position to suppress or exclude them on that basis, then that official has acted outside the bounds of his authority and violated the First Amendment. If just about anything was going up on the archive, and there was no policy at all defining what the archive is for and what it is not for in terms that did not set up impermissible viewpoint discrimination, (e.g., you can't say, we'll allow stuff about religion, but only "non- preudiced" stuff,) and if the archive is supported by public funds and is a unit or agent of the public university, it seems arguable that Mr. Regoli has created a kind of limited public forum, and may not exclude materials based on the viewpoint expressed. If I've missed something or have been misinformed, or if anyone thinks I have misinterpreted the situation, please jump in here. I'm always open to discussion and criticism. I'd be interested in hearing from university librarians and system administrators on this, because this is an area that's still pretty much up for grabs, policy-wise. See also Carl Kadie's recent post and Carolyn Caywood's response on this list re: exclusion of all "alt." newsgroups at a university. Anne Levinson Penway email u35907@uicvm.uic.edu Assistant Director Phone: 312 280 4224 Office For Intellectual Freedom American Library Association 50 East Huron Street Chicago, Illinois 60611 ========= end of repost ========= -- Carl Kadie -- I do not represent EFF; this is just me. =kadie@eff.org, kadie@cs.uiuc.edu = ================= end of repost ================== -- Carl Kadie -- I do not represent EFF; this is just me. =kadie@eff.org, kadie@cs.uiuc.edu = From caf-talk Caf Apr 16 16:21:05 1994 From: kadie@eff.org (Fwd:) Newsgroups: alt.comp.acad-freedom.news Subject: [McGill Daily] "McGill: A police state?" Date: 16 Apr 1994 16:21:03 -0400 Message-ID: <2ophbf$62o@eff.org> [A repost - Carl] [paraphrase: [_The McGill Daily_] "At last Wednesday's Senate meeting, Gopnik proposed revisions to the code of student conduct." "Some of the proposed revisions to the code include: Eliminating the confidentiality of communications made through the university's computer system, including electronic mail."] From: kadie@eff.org (Carl M. Kadie) Newsgroups: comp.org.eff.talk,alt.comp.acad-freedom.talk,alt.privacy,can.general,can.legal,mtl.general,mcgill.general Subject: [McGill Daily] "McGill: A police state?" Date: 13 Apr 1994 21:13:49 -0400 Message-ID: <2oi5cd$d3p@eff.org> Copyright (c) 1994 by the Daily Publications Society. All Rights Reserved. Reprinted with permission. The McGill Daily April 13, 1994 vol.84 no.91 page 6 McGill: A police state? ----------------------- ... Jane always tried to be a good citizen. But everything was ruined that one day when they entered her office, seizing files, searching through her computer account and charged her with being a "threat to the integrity of the community". The subsequent trial was a farce; she was guilty until proven innocent. Illegally obtained evidence, violations of basic rights to privacy, and no chance of appeal as she was convicted and her life destroyed. Protest was futile. "We can without permission enter any office or home and plow through whatever we please", chuckled the goateed administrator ... An Orwellian vision of the future? Military dictatorship? A bad movie plot? or McGill 1994? The above scene could well happen at McGill if Irwin Gopnik, Dean of Students, has his way. At last Wednesday's Senate meeting, Gopnik proposed revisions to the code of student conduct. Revisions which show some of the most draconian attitudes of the McGill administration. The code of student conduct governs what is and what is not good behaviour for students, and outlines the procedures for hearings when a student is charged with an offence. Some of the proposed revisions to the code include: * Eliminating the confidentiality of communications made through the university's computer system, including electronic mail. * Allowing administrators to use illegally obtained evidence during hearings. * In cases of plagiarism the student would be presumed guilty notwithstanding Article 22 of the Charter of Student Rights which states that a student is innocent until proven guilty. * A student could be suspended for up to 30 days on the whim of the Dean of Students (an increase of 15 days) before the student could appeal the decision. * A student cannot have a lawyer present during the hearings. These changes are in violation of our legally established right to privacy, as well as contradicting the Charter of Students' Rights. Section 1 of the Fundamental Rights and Freedoms section of the Charter states that "Every student enjoys within the University all rights and freedoms recognized by law." Rights and freedoms recognized by law include the Quebec charter of human rights, which states that everyone has a right to privacy (violated by McGill's insistance on the right to search private computer accounts), and that illegally obtained evidence is not admissible. The proposed code is coming up for debate at Senate in the fall. The university community must choose whether we will be governed through a climate of fear, or strive to live in a community which respects basic human rights. Jason Prince Dave Ley Max Francisco Kritin Andrews Liz Unna Melanie Newton Thomas White. =================== -- Carl Kadie -- I do not represent EFF; this is just me. =kadie@eff.org, kadie@cs.uiuc.edu = ================= end of repost ================== -- Carl Kadie -- I do not represent EFF; this is just me. =kadie@eff.org, kadie@cs.uiuc.edu =