SSRN Removes Academic Paper Due to Defamation Claim

A paper by Professor Ann Lipton has been deplatformed because Philip R. Shawe does not like how it portrays his actions in a business dispute, and now a law review may refuse to publish the piece.

[Note: Here is an update on this story.]

Professor Ann Lipton, a noted corporate law scholar at Tulane, has a new paper, "Capital Discrimination," discussing gender discrimination in business disputes. When she completed her draft she posted the article on SSRN and submitted it law reviews, as one does, and received an offer of publication from the Houston Law Review. Then the paper attracted some unfavorable attention.

In December, attorneys for Philip R. Shawe sent a cease-and-desist letter to SSRN, demanding that the paper be removed, alleging that the paper's characterization of and commentary on Shawe's conduct in a nasty business dispute were defamatory. SSRN responded by pulling the paper and, as Professor Lipton recounts, the Houston Law Review informed her that it could not assure her that it would publish the article.

Tulane University is supporting Professor Lipton, and its lawyers have sent their own letter to SSRN seeking that the paper be reposted. As the letter notes, sources for all of the relevant factual claims are cited, largely to the relevant legal proceedings, and Professor Lipton's opinions about those facts and their significance constitute constitutionally protected expressions of opinion.

SSRN has not yet responded to this request. Professor Lipton's article, however, is available here, and now includes a brief comment on the above events. Here is hoping the article attracts even wider readership than it would have before.

Comments

[rsteinmetz]

Will people ever learn? The Streisand effect in full view. It seems a unlikely a law review article or an academic publication would attract much attention.

It will now.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

I've downloaded it rather than read it online, to hopefully boost the traffic counts.

[Jimmy the Dane]

The left will start caring about cancel culture when it comes to gore their ox.

[Sarcastr0]

What about the OP makes you think of cancel culture?

[MatthewSlyfield]

Well, the paper did get canceled.

[Alpheus W Drinkwater]

So now the term cancel culture includes anything canceled for any reason. It joins the terms CRT, socialism, communism, etc. as terms used so broadly and indiscriminately that it has no meaning, other than "I disagree with this thing."

[MatthewSlyfield]

Sense of humor check: Error: Failed to Detect Sense of Humor.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Odd you left fascism, nazi, far right, and other non-left tropes out of your list.

[Trollificus]

Oh, but your list is woefully incomplete. I find, in the category of "words that mean what I mean when I use them", "white supremacist", "racist", "misogynist", "transphobe", "conservative", and "alt-right".

Might also include "fascist" but I don't think that has any meaning anymore except as a generally pejorative term. It's like "asshole" or "shit"...it presumably has an actual definition, but in use is just a negative placeholder.

[Sarcastr0]

Love this. Idiot knee-jerk poster uses cancel culture completely wrong, and 3 others jump to his defense with whattaboutism.

Your grievance at being unfairly criticized online doesn't make Jimmy less of a dumbass, y'all

[Noscitur a sociis]

Elting and Shawe served as co-CEOs and the only two corporate board members. Elting owned fifty of TransPerfect’s 100 shares of stock, and Shawe held forty-nine. The final share was held by Shawe’s mother, which technically made TransPerfect eligible for certain benefits as a majority women-owned business. In practice, however, Shawe voted his mother’s share, giving the two founders equal control over the company.

Another affirmative action success story!

[Comment-A]

You could add that Section 230 of the CDA absolutely protects SSRN for the posting, no ifs, ands, or buts. So, taking this down is based on some other policy to mollify complainants, and not a genuine fear of liability, even if it were defamatory.

[Stephen Lathrop]

I have no opinion on whether the paper in question was or was not defamatory. I am too lazy to try to figure that out.

Comment-A, if the paper were defamatory, what would be wrong with taking it down for that reason? Should a publisher commit defamation for no other reason than the fact that a law provides a shield against paying damages? Is it your premise that Section 230 has authorized defamation, transforming what had previously been a vice into a new-minted ornament of press freedom? Or do you suppose that Section 230 has somehow outlawed editorial judgment by a publisher, and thus put the question of defamation beyond every publisher's judgment?

More generally, fans of Section 230 overreach when they refer to taking a publication down after initial publication as, "cancel culture." Given the way so-called, "platforms," operate, how else could editing ever get done?

How could it be that because of Section 230 owners of publishing companies have lost completely the power to edit what they publish? Why is it necessary to resolve the defamation question at all? Why can't a publisher just refuse material it prefers not to publish? And, crucially, why is it not an advantage for expressive freedom to let publishers make that decision?

Once again, internet fans on this blog seem to be lining up to oppose press freedom in the name of free speech. That is unwise advocacy. The public life of the nation depends on both freedoms. They are sometimes in tension. That cannot be good reason to abolish either one for the sake of the other.

[Davy C]

There's a difference between saying "this publisher shouldn't give in to the complainers on a pretext of defamation" and any actual free press violation, though. Yes, the publisher should be able to revoke publication for just about any reason (assuming there's no contract) but everyone else should also be able to complain about it if they don't like the reason.

[Stephen Lathrop]

Davy C, what would be the point of the complaining you envision? Blowing off steam? Boycotting the publisher's business? Mobilizing government to take action against the publisher? Complainers' objectives matter.

The constructive form of complaint is simply to make contrary publications using a more agreeable alternative publisher. Or set up your own.

[David Nieporent]

Comment-A, if the paper were defamatory, what would be wrong with taking it down for that reason? Should a publisher commit defamation for no other reason than the fact that a law provides a shield against paying damages? Is it your premise that Section 230 has authorized defamation, transforming what had previously been a vice into a new-minted ornament of press freedom? Or do you suppose that Section 230 has somehow outlawed editorial judgment by a publisher, and thus put the question of defamation beyond every publisher's judgment?

SSRN, like all the other entities you bloviate about, is not a publisher. That is true both as a legal statement and as a lay, descriptive statement. You simply don't understand the concept you keep talking about. It is a distributor. And while one might think it good that defamation not be distributed, there has been no adjudication that this article is defamatory.

[Stephen Lathrop]

What we have, Nieporent, are repeated instances of you and I disagreeing about what a publisher is. My take on it defines publishers in terms of characteristic activities which publishers practice, and which other kinds of businesses do not practice.

I have never been able to figure out what your assertions are based on. Your comment above shows why. It is all assertion and no discussion, just like the others.

[David Nieporent]

I agree that you've come up with a definition. The problem is that your take on it defines publishers by everything other than what they actually do: publish.

Passively hosting material created and supplied by others is not publishing. When your local grocery store has a bulletin board where people can post announcements of lost cats, and karate lessons being offered, and bands playing this weekend at a local pub, and the schedule for services at the nearby church, the grocery store is not a publisher. The guy who put up the flier for his band could be described as the publisher of the flier.

Distributing works created and supplied by others is not publishing. Barnes & Noble isn't the publisher of the books on its shelves. Random House, Simon & Schuster, HarperCollins — all entities that are described by normal people as "publishers" — are. The kiosk on the street corner isn't the publisher of the papers and magazines on its racks. The Wall Street Journal and Conde Nast and the New York Times — all entities that are described by normal people as "publishers" — are.

N.B.: not because any of them "assemble audiences" or "charge money for advertising" or whatever other notions you've come up with.

Now, does what SSRN does look more like what Simon & Schuster does, what Conde Nast does, or what the grocery store does?

[Stephen Lathrop]

The problem is that your take on it defines publishers by everything other than what they actually do: publish.

Until you furnish your own independent definition of publishing, that is, of course, empty self-assertion. Go ahead, see if you can come up with defining characteristics of publishing as an activity. If you can, I will re-iterate my list, and we can let bystanders judge who has the more useful take on the question.

[wolfefan]

I apologize, Stephen, but I'm not seeing your definition of publisher. Could you point it out for me? Thanks in advance.

[Stephen Lathrop]

It is not on this thread. I have done it at least 5 times previously. Presumably Nieporent will come up with something of his own, and if he does, I will put mine back up, so they appear close together for easy comparison.

[David Nieporent]

Lathrop's being coy; I'll let you figure out why. His definition is something dumb about assembling an audience and selling access to that audience to advertisers. (Which is not to say that a publisher can't do those things, but that those aren't things that define publishing.)

[Squirrelloid]

How did we get from 'someone alleged it was defamatory' to 'it is defamatory'?

[David Nieporent]

Forget it, Squirrelloid; it's Lathroptown.

[dwb68]

It will certainly be cited more often now. I am sure that was the intended effect, lmao.