They say a university caved in to the corporation they criticized
A knock came at William A. Wines’s door last March, and he was pleased that his colleague, Mark A. Buchanan, had stopped by.
His pleasure quickly would pass.
Mr. Buchanan stood with a letter in his hand that would baffle both professors. It said that five months earlier, the University of Denver had “withdrawn” an article that the two scholars and a third co-author had published in September 1998 in the Denver Journal of International Law and Policy. The university had directed the two major online legal-text databases, Lexis and Westlaw, to remove the article. And, according to the letter, the journal had published in its summer 1999 issue a highly unusual “errata” notice that “this article has been retracted for its lack of scholarship and false content.”
All of this was news to Mr. Buchanan, an associate professor of law at Boise State University, and Mr. Wines, a professor of legal environment and business ethics there. What’s more, the letter had come not from the journal or the university, but from the Boise Cascade Corporation, a Fortune 500 company that is one of the country’s largest wood-products manufacturers -- and the target of vigorous criticism in the article.
“I was very shocked, angered, and disappointed that a major university would pull a piece without even contacting the authors,” says Mr. Wines.
Mr. Buchanan adds, “It all had an air of surrealism about it, being something straight out of the blue, and clearly something I had neither ever encountered nor even heard of.”
Eight months after he came to Mr. Wines’s door, the two men are still dismayed. University of Denver officials have argued that they and the journal’s editors had no choice but to retract the article, having concluded that the original editors had made a serious mistake in publishing a paper that included many “inappropriate” elements. Boise Cascade has used stronger language. In the letter sent to Mr. Buchanan and then to Mr. Wines and Donald J. Smith, an environmental activist who is the paper’s other author, a company lawyer demanded that they “immediately cease distributing copies of the article and immediately stop making false and defamatory statements about Boise Cascade.”
The authors say the letter was designed to intimidate them, as they presume the university was intimidated, in an effort to suppress an article that is, in Mr. Wines’s words, both “accurate and embarrassing” to the company.
So began a tortuous wrangle that has now made its way to the courts. At its core lie competing ideas of what academic freedom is and what responsibilities that freedom imposes. In even its minor details, the affair casts light on the way that deliberations over such issues may be weighed and managed by university lawyers and administrators. It also is a cautionary tale for law schools that allow their students free rein in determining the contents of law journals.
Mr. Wines can barely contain his anger over how the article, on which he and his colleagues had spent two painstaking years, has been treated.
“One million lawyers and assorted help see when they go to use that article [in on-line legal data banks] that the pages are just blank, with no explanation,” he says. “The article has disappeared into the ether.”
The 62-page article is called “The Critical Need for Law Reform to Regulate the Abusive Practices of Transnational Corporations: The Illustrative Case of Boise Cascade Corporation in Mexico’s Costa Grande and Elsewhere.” In often strident tones, it makes the case that Boise Cascade’s “greed and arrogance” typify the attitude of large multinational or “transnational” companies that, in their quest for profits, ignore business ethics.
The authors’ most inflammatory accusations -- at least gauged by the company’s response -- relate to Mexico. They argue that Boise Cascade acted irresponsibly and with indifference to its workers in the mid-1990’s when it shut down a large lumber mill in Council, Idaho, and soon afterward opened a more cheaply run operation in Mexico. The authors also repeat charges published elsewhere that Boise Cascade ignored unsafe working conditions in its Mexico mill, and risked fomenting civil turmoil when it put large amounts of money and milling activity into a region already shaken by the massacre of 17 campesinos that stemmed from protests over, among other issues, timber rights.
The law-student editors of the journal “were thrilled when they got this real-life stuff,” recalls Mr. Smith, one of the authors. Boise Cascade, however, calls all of the charges “false and defamatory.”
Crucial to the dispute is that, while the article has the trappings of investigative journalism, the authors did not go into the field themselves. In a practice much more typical of academic writing, their analysis instead relies almost wholly on the work of other writers, including journalists and human-rights groups, cited in the 229 footnotes -- although not always to the satisfaction of the University of Denver or Boise Cascade, as it turned out.
It was up to the student editors to check those footnotes, says Ved P. Nanda, a professor of law at Denver and faculty adviser to the journal, which he founded in 1973. Mr. Nanda says he did not read the article while editors were preparing it for publication, but only after Boise Cascade had contacted him with complaints.
The decision to withdraw the article rests squarely with those editors, too, according to the errata notice. “After further review of the article,” it reads, “the editorial staff has determined that the article was not consistent with the editorial standards of the Journal or of the University of Denver, and that portions of the article relating to Boise Cascade were clearly inappropriate and require elimination, revision or correction. Although the editors are committed to publishing articles on controversial issues of public importance, we are retracting portions of the article and have requested that the article be removed from on-line sources pending re-editing. We regret that the article was published in this manner and apologize to any individuals that were impacted.”
“There were a number of what we consider to be gross misstatements of fact regarding Boise Cascade, many false and defamatory comments,” says Michael J. Moser, a company spokesman. “And when the University of Denver became aware of this, they saw that, too, and obviously came to the same conclusion we did -- that it was not a very accurate article -- and they therefore withdrew it.”
A. Bruce Jones, a lawyer for the university, acknowledges that “extremely upset” Boise Cascade officials alerted Denver to the article, contacting university officials in October 1999.
What happened next is at the core of the dispute. Did the university, or the law school, or the journal, reach an independent judgment that the article was flawed? The chain of decision is unclear. What were the specific objections? How could a journal or a university make a decision to retract a scholarly article without first contacting the authors? Even now, the university has conveyed only one or two of its objections to the authors, and then only in informal discussions.
The authors believe that the answer depends on knowing the answer to another question: Did Boise Cascade threaten the university with a lawsuit that would beggar any suit the authors might file?
“Well,” says Paul A. Chan, the university’s general counsel, pausing momentarily, “‘threaten’ is an interesting word. Let’s just say that they pointed out that the objections they raised did rise to the level of being actionable.”
Boise Cascade’s Mr. Moser is somewhat more blunt: “We made our position clear, and I think what we were prepared to do was to defend our good name.”
What is clear is that Boise Cascade threatens legal action if the article reappears in any form that is not to the company’s liking. Jeffrey D. Neumeyer, the corporation’s associate general counsel, wrote a letter to Mr. Chan -- a copy of which was forwarded anonymously to The Chronicle -- enclosing a heavily highlighted copy of the article. Mr. Neumeyer wrote: “I have been advised to proceed with litigation against DU if any of these highlighted areas are republished by DU in any form.”
Mr. Neumeyer also sent a letter to the article’s authors: “It is my understanding that DU is not going to re-edit and republish your article,” he wrote.
The two letters lead the authors to believe that the company and the university acted in concert to block their journal article from receiving a wider audience.
University officials insist that their decision to retract the article was an independent one, based not on whether the piece defamed Boise Cascade, but on its “inappropriateness” for the journal.
“That’s a little bit subtle, but I think it’s an important distinction,” says the university’s Mr. Chan. As to Boise Cascade’s role>, he says, “we did not in any way agree that we would take into account all of their concerns, or any of those concerns. It was very clear that the final editorial decision on this article, if we republished it in the future, would remain solely with the university.”
“The authors have tried to portray this as the university caving in to a heavy-handed corporate threat,” adds Mr. Jones, the Denver lawyer. “That completely fails to capture the nuances of this.”
But how, ask the authors, were they to know what those nuances were? Neither the journal’s editors nor university officials informed them of the errata before it ran or explained it to them afterward. After receiving Boise Cascade’s notification, the authors pressed Denver repeatedly for an explanation. The university provided none, other than the errata notice.
According to university officials, a series of miscommunications is to blame for the lack of contact with the authors about the withdrawal. As for checking with them before withdrawing the article, Mr. Chan says, “It’s true that we did not consult with the authors ahead of time in order to get their input on the decision, in much the same way that they didn’t consult with Boise Cascade prior to publishing the article originally.”
This past August, the three authors filed a lawsuit in U.S. District Court for Idaho, arguing that their reputations have been damaged by the university’s implication that the article “was inaccurate, lacked scholarship and was bad journalism.” The authors say the university impeached their “honesty, integrity, virtue, and reputations” and exposed them to “public contempt and ridicule.” The university’s actions, they add, also breached a contract -- a “transfer of copyright agreement” prior to publication -- and a “covenant of good faith and fair dealing” between them and the university.
“What is this gutless university doing when faced with a little bit of controversy over an article which they played a role in publishing?” asks the plaintiffs’ lawyer, William H. Thomas.
The authors say they can’t overstate the impact of the university’s decision to withdraw their article. Mr. Wines says that although he has won awards for previous writing, “in terms of commitment to making this a better world for my kids and grandkids, I feel [the Boise Cascade article] is my top piece.” Learning of the retraction was “something short of losing one of your kids. It had spent a lot of time in gestation.”
He says he and his colleagues chose Boise Cascade to illustrate the way transnational companies operate; the second half of the article discusses such issues in general terms, and recommends alternative policies. “For us to single [Boise Cascade] out as different or a bad actor would undermine the thrust of the piece,” he says.
But the article does, clearly, focus on Boise Cascade. While Mr. Buchanan has no history of social activism and says he is “still a fan of the market,” Mr. Wines is a former teachers'-union organizer. In a section of the article that he largely wrote, he attacks the corporation’s labor-relations practices as “threatening, coercing, and devastating small-town labor forces.”
“If Boise Cascade had really believed it had been defamed,” he says in an interview, “I wonder why it would not sue us directly. One possible answer is that then we’d be able to discover all of the evidence that’d support what we talked about.”
In the journal article, the authors built their case on the basis of evidence provided by others -- a practice that in this case did not sit well with university officials. The decision to withdraw the article was “cumulative,” says Denver’s Mr. Jones, and was based on concerns about statements in the text, questionable citations, and “things in the article that were, for lack of a better term, intemperate in their tone.”
“I’m assuming that you could make the case for problems with Boise Cascade’s conduct without quoting undocumented interviews, without quoting anonymous sources, without making reference to rumors of events or concerns about possible events, or without making references to events that you regard in only one way, without any consideration of whether that event could be interpreted differently,” says Mr. Jones. The article “just attributes a sinister, evil motive to everything that this corporation has done.”
“Then you add Boise Cascade being upset about it. That adds to that cumulative effect.”
Boise Cascade was more explicit about what affronted it, in letters sent to the university and the authors, and obtained by The Chronicle. Foremost among the company’s objections was that, in its view, the authors “suggest that Boise Cascade is responsible or was somehow involved” in the June 1995 Aguas Blancas massacre in the state of Guerrero, Mexico, near where the company later constructed a mill; the coastal area is known as Costa Grande. The massacre has widely been attributed to police personnel.
Mr. Jones refers to that issue as well, though more cautiously: ‘There was an insinuation -- it wasn’t so direct an insinuation, but at least it was something that might be read to imply -- that the corporation was involved with, or somehow responsible for some murders in Mexico.”
The authors contend otherwise. “We were very careful to frame what we wrote in such a way that we were not making that accusation,” says Mr. Wines.
What they did write was that the company’s investment in timber “further aggravated a destabilized countryside in which seventeen unarmed environmental protesters were shot dead in June 1995 and dozens of others have since disappeared, been executed or murdered. BCC meanwhile enjoyed near record profits in 1995.”
The authors criticize Boise Cascade for not opening its archives to their research; the company says their efforts to verify information were irresponsibly minimal. “BCC has ‘circled the wagons,’” the journal article says. “Is BCC afraid someone might find something incriminating? Could there still be a smoking gun from the June 1995 Aguas Blancas massacre in the BCC archives?”
The authors write: “John Ross declared that his search had not turned up a smoking gun,” referring to a freelance journalist whom they consider an expert on the issues and who is a source for much of their material.
But they go on with a series of rhetorical questions, including: “Did BCC violate the Foreign Corrupt Practices Act by slipping cash” to Guerrero’s then-Governor, Ruben Figueroa? They do not offer any evidence that the company did so, nor do they actually make the charge. Elsewhere in the piece, they praise Boise Cascade for refusing to engage in such a practice in China.
“Such speculation may not be as far-fetched as it seems,” write the authors. So while they acknowledge that such a question may be out of bounds, they ask it nonetheless.
“There is no implication” that Boise Cascade was linked to the massacre, says Mr. Smith, the environmental activist among the three authors. “They weren’t involved. It was a different logging operation and a different time setting. We were saying, injection of a large amount of money into a dirt-poor, corrupt state in Mexico contributed to more instability.”
“If they’re not making that accusation [of a link to the murders], why exactly did they put it in there in the way that they put it in there?” responds Mr. Jones.
The dispute exemplifies the rigorously detailed back-and-forth that is typical of defamation cases, says Rodney A. Smolla, a professor of law at the University of Richmond, who is the author of two standard texts on the subject. It is not the defamatory nature of statements that is generally in dispute, he says, explaining that a defamatory statement is simply one that portrays someone in a negative light. Rather, the question is whether the defamation rises to the level of libel. “That’s a more complex issue,” he says. Any libel suit that Boise Cascade brought against the university or the authors, he adds, would be a protracted battle, with an unpredictable outcome.
Many statements in the Denver law-journal article are “classic examples of ambiguous statements that are difficult to pigeonhole as either fact or opinion,” says Mr. Smolla. “Some jurisdictions are open to allowing suits to be based on innuendo,” but some very much are not. What’s more, “Boise Cascade would be deemed a public figure with regard to this controversy. That means that the authors would be protected by a very high level of First Amendment protection, and unless they knew the statements they were making were false, or they acted with reckless disregard for truth or falsity, they could not be held liable.”
No libel suit has been brought here. The only current litigation involves the authors’ lawsuit against the university.
Challenges to points in the article, and the authors’ rebuttals to those challenges, go on and on. Some emerge as more critical to the dispute than others. Boise Cascade denies the authors’ charge that the 1995 lumber-mill closure in Idaho was linked to the opening of a mill in Mexico very shortly after that. The company calls the two steps “completely unrelated.”
The timing “would lead one to believe that there was some connection,” responds Mr. Wines, pointing to statements by Idaho lumber workers that supervisors and equipment from the closed mill were sent to the Mexico operation.
Boise Cascade also makes much of a footnote to the effect that the company’s indifference to environmental concerns is perfectly symbolized by the “massive new house” that its chairman, George J. Harad, built in the hills near Boise. The footnote, which includes Mr. Harad’s home address, notes that the house is at an elevation that permits him “to look down on the working class people in the valley.”
“Welcome to the Robber Barons, Part II,” the authors write, “with a polished veneer of civilization courtesy of a staff of public relations types and highly paid corporate lawyers.”
The footnote is one specific concern that Denver officials are willing to discuss with The Chronicle. “Upon careful consideration, the university just couldn’t come up with a reason you would include that in a piece about Boise Cascade,” says Mr. Chan. “Boise Cascade let us know that the C.E.O. has also experienced not only some protests, but some threats of violence.”
“I had absolutely no malicious intent,” replies Mr. Wines, who found Mr. Harad’s address in building permits, but could more easily have looked in the white pages. In any case, he says, the journal’s editors “went over supporting footnotes -- they went over them with a fine-toothed comb. Certainly, if they’d wanted to delete that, I wouldn’t have objected. It’s a very minor part of the piece.”
“It’s not just the fact that his address is in there,” responds Mr. Chan, Denver’s general counsel, upon being informed of its presence in the phone book, “but that footnote is illustrative of a fairly personal attack on the C.E.O.” Among other things, it seems to suggest, he says, that Mr. Harad “underpaid for that building permit.”
Another of Boise Cascade’s protests is one that strikes the authors as grimly amusing: that they described the company as having a practice of intimidating its critics. Specifically, the article says, the company has tried to discredit and silence Mr. Ross, the freelance journalist whose work they cite, who has published scathing attacks on Boise Cascade in investigative articles that have appeared in Sierra Magazine, published by the Sierra Club. The Denver law-journal article says Boise Cascade tried to prevent a talk that Mr. Ross was to give at Boise State. The company denies doing so. The authors’ basis for that claim, as contained in a footnote: Mr. Ross’s say-so.
In an interview with The Chronicle, the authors say a second source confirmed Mr. Ross’s account for the article, but asked not to be cited. That source was Errol D. Jones, former chairman of Boise State’s history department. In an interview with The Chronicle, he said Mr. Harad, the Boise Cascade chairman, did telephone Boise State’s president to protest Mr. Ross’s appearance, which went ahead as scheduled. That news came to Mr. Jones via the university’s director of university relations, Larry D. Burke, who confirmed as much in a separate interview.
Are the University of Denver’s reservations, then, simply that the article was lacking in scholarship and was “bad journalism,” as lawyers for Boise Cascade have called it?
“I’m not going to label it good, bad, or indifferent investigative journalism,” says Mr. Jones, the university lawyer. “The point I’m making is that, to the extent that it has a place, it probably would be more appropriate within the context of an investigative-journalism type of piece, and that’s not what law-review journals, and particularly this law-review journal, are about.”
The retraction was not prompted by any legal threat -- “not from Boise Cascade or any corporation,” says Mr. Nanda, the faculty adviser. He notes that the Denver law journal, like student legal clinics around the country, is known for being outspoken. “That is our job -- to be looking at and appraising the status quo, and if need be, to be critical,” he says. However, “at the same time, we are aware of our responsibilities -- that when we criticize someone, we have total support” from facts, footnotes, and legal authorities.
As a student-run publication, the journal is “designed to help the writing and analytical skills of the students, as well as to serve as an outlet for scholarly publications,” says Mr. Jones. “I’m sure the editor in chief felt that he made an appropriate decision” to publish the article.
Mr. Nanda says he did talk to the then-editor-in-chief, Michael J. Mauseth, who graduated from the law school last year. “He was very sorry about it, and he felt bad about it. But it had gone out.” Contacted by The Chronicle, Mr. Mauseth would say only that normal procedures for selecting and editing articles were followed in the case of this one.
To the authors, the students-as-rube-editors explanation doesn’t fly. Mr. Smith says that when he spoke to Mr. Chan and Mr. Nanda at some length about the retraction, neither so much as mentioned such a rationale for withdrawing the article.
Instead, he says, Mr. Nanda mentioned to him that Denver’s chancellor, Daniel L. Ritchie, was “up in arms” upon learning about the article’s contents from Boise Cascade. Mr. Smith’s recollections, based on notes he took at the time, are quite detailed. He says he gained from Mr. Nanda the impression that officials of the private university were concerned that the article might alienate corporate and individual donors. And, he says, Mr. Chan told him that the libel claims seemed meritless, but that the university was bearing in mind that Boise Cascade had billions of dollars of clout.
Mr. Chan remembers otherwise: “What my discussions with Mr. Smith involved were whether this article was appropriate as published.”
Mr. Ritchie dismisses the charge that concern over how the article might harm fund raising affected the decision to retract. “Boise Cascade has never contributed to the university,” he says.
Mr. Ritchie also responds to the authors’ suspicion that he personally ordered the article’s withdrawal: “I have not been involved in any significant way. That was solely a matter for the law school to decide.”
Mr. Chan says only that “it was a university decision, and yes, the chief executive officer of the university was aware of it. But I can’t really get into the extent to which he was involved in the decision himself. At least not at this time.”
What the general counsel does say is that the decision to retract the article was made by the journal editors who were in place last year, in consultation with Mr. Nanda, Mr. Chan, and the dean of the law school at the time, Nell J. Newton, who is now law dean at the University of Connecticut. She did not return calls seeking comment.
Convinced that the university is concealing the real source of the decision, the authors of the journal article have obtained a subpoena demanding any documents that might reveal the process.
If the editing and faculty-advising Denver Journal of International Law and Policy failed so badly, will any steps be taken to prevent a recurrence?
It may be, says Mr. Jones, the lawyer, that the episode “means we need more supervision, or maybe that means we need more training, or maybe that just means reasonable people can disagree about it.”
Mr. Nanda disagrees. “No, we won’t change [oversight of the journal],” he says. “Once in a while, that kind of crack happens.”
Is any disciplinary action contemplated against either Mr. Nanda or the journal? “As far as specific actions we might be taking pursuant to this, I wish I could talk to you about that, but I can’t,” says Mr. Chan.
What about academic freedom?
The Association of American University Professors says it will look into the dispute. The academic-freedom program of Human Rights Watch, an international organization, already has investigated, and is preparing an announcement. “We are very concerned about the whole situation, and we’re hoping it’s going to be resolved with republication of the article,” says Saman Zia-Zarifi, director of the program, in New York.
His reaction to the university’s argument that the article was simply too egregious to let stand: “That’s exactly what I’m most concerned about. Within the bounds of truth and good form, there’s no reason for law journals not to be forums for strong social commentary. One should be able to criticize people who are doing not very nice things.”
He derides the university’s legal stance, saying it should be hiring experienced lawyers, like Mr. Jones, to defend its right to publish, not “to justify censorship or redaction of material.”
“I can understand how university administrators would read that piece and find it inappropriate,” but “this is not a bureaucratic, administrative issue,” Mr. Zia-Zarifi says. “This is an article that was published, and a proper response to it is a response from Boise Cascade saying what’s wrong with it -- not pulling it and killing the issue like that.”
Like the authors, university officials stand behind the principle of academic freedom. But they construe it more subtly. “It’s not just the academic freedom of these authors that’s at issue,” says Mr. Jones. “It’s the university’s academic freedom as well, to make a determination about what it believes to be appropriate scholarship that’s going to go out in its own journal.”
The authors’ lawyer, Mr. Thomas, says Boise Cascade not only has provoked discussion of academic freedom, but also, ironically, has drawn far greater than usual attention to an academic article. “If they had just let it lie, it’d just be another academic article fading into obscurity.”
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