Friday, October 16, 2009

University Sues Student Blogger

October 16, 2009

Butler University has sued an undergraduate student for making libelous and defamatory statements about administrators on a blog he kept anonymously.

Details of the case became public last week when Bill Watts, an English professor at Butler, wrote a piece in the student newspaper and sent an e-mail to the university’s Faculty Senate in which he questioned “the practice of suing our own students for their utterances.” The e-mail provoked a written response from Bobby Fong, Butler president, who defended the lawsuit Tuesday at a Faculty Senate meeting, noting that “academic freedom does not provide protection for defamation and harassment.”

Jess Zimmerman, a junior at Butler, created “TrueBU Blog” in October 2008 to chronicle happenings he deemed of import at the institution. Though he managed the blog anonymously under the tongue-in-cheek moniker “Soodo Nym,” he has recently come forward publicly. In addition to posts by Zimmerman, the blog also featured “reports” from other anonymous faculty and student “correspondents.”

In his first post on the blog, Zimmerman writes, “This is not a forum for attack. It is a forum for truth.” He also asks that all commenters and fellow posters “please refrain from making ad hominem attacks,” noting that “they will not be tolerated.”

The blog did not attract much traffic until December 2008, when Zimmerman started chronicling what he viewed as the unfair dismissal of Andrea Gullickson, then chair of the Butler’s School of Music and Zimmerman’s stepmother. (Gullickson, who retained her faculty job, said that until recently, she did not realize the author was her stepson.) In multiple posts, Zimmerman cites various other anonymous sources and internal e-mails in presenting a case as to why he believes Peter Alexander, dean of Butler’s College of Fine Arts, and Jamie Comstock, Butler’s provost, acted “inappropriately and inexcusably” in their handling of Gullickson’s departure. During that month, Zimmerman said, the blog received more than 2,000 hits.

Just before the New Year, Zimmerman took down the blog after receiving an e-mail (to his anonymous account) from the university’s lawyer noting that it was pursuing charges against him.

The Lawsuit

In January, the university filed a libel and defamation suit against “Soodo Nym,” listing numerous statements from his blog that they argue “have harmed the honesty, integrity, and professional reputation of Butler University and two of its high-level administrators.” University officials insist that, at the time the suit was filed, they did not know that Zimmerman was the blog’s author, and they hoped the case would identify the author.

Michael Blickman, one of the university’s lawyers, wrote in an e-mail that the university “had a sense that the blogger could have been [Zimmerman] or another student” but that it also “could have been an outsider.”

As late as Thursday evening, even though Zimmerman had openly admitted to Butler’s student newspaper and to Inside Higher Ed that he was the blogger, Blickman maintained that Zimmerman “has yet to acknowledge this to the university.” As for naming Zimmerman to the suit in place of the current “John Doe,” Blickman said the university “is reserving all options” in the future.

Among the specific statements written by Zimmerman that the university deems libelous include the following description: “Peter Alexander, Dean of the [College of Fine Arts] is power-hungry and afraid of his own shadow. … He drives away talented administrators. He frustrates students within the departments. He hurts the ability of the school to recruit talented students and faculty members. He announces to the campus that the Butler Way, the ideals for which the school and everyone at it stands, mean nothing.”

The university also takes umbrage at Zimmerman’s description of a meeting Alexander had with the School of Music, regarding the departure of Gullickson, a well-liked chair who received favorable reviews from her peers. Zimmerman writes that Alexander “lied” to faculty and left the meeting “embarrassed” for having done so. The university also challenges Zimmerman’s claim that Alexander and Comstock were, as the suit phrases it, “engaged in a conspiracy to misrepresent the circumstances of the departure” of Gullickson as chair.

The university noted in the suit that administrators “have received threatening/harassing emails in connection with the events reports on the TrueBU Blog.” One such e-mail was sent from Zimmerman on Dec. 25, wishing Alexander and Comstock a “very merry Christmas and a good new year,” but adding that “I haven’t forgotten the abuses of power and poor leadership you showed last semester.”

Fong also noted in his written statement Tuesday that Comstock had received another e-mail that made her fear “for her own safety, for her husband for her house and property.” Fong quoted the e-mail as having read, “We can create much more trouble for you than we have so far.” Zimmerman and Gullickson both said they were not responsible for the e-mail and did not know who had penned it.

Identifying the Blogger

Even though the university had filed a suit against “Soodo Nym,” Zimmerman said he was unaware of any legal action being taken against him until early last summer.

Then, Michael Zimmerman, Jess’s father and a biology professor at Butler, did not have his contract as dean of the university’s College of Liberal Arts and Sciences renewed. After hearing that Comstock had openly disparaged him and misrepresented the nature of his departure as dean to members of the college’s Board of Visitors, Michael worked with his lawyer to get Comstock to retract her statements. He said his goal was not to get back his position as dean, noting that like Gullickson, he was content to move on from what he felt was an injustice and return to a teaching position.

In working to get an out-of-court settlement with the university regarding Comstock’s statements about Michael, university attorneys approached Michael’s lawyer with terms that sought to settle not only his complaints but the suit they had filed against his son, Jess, regarding the blog. It was at that point, Michael and Gullickson said they became aware of their son’s sole involvement with the blog.

Dan Altman, Michael and Jess’s attorney, said the university’s attorneys approached them with a settlement that tied both cases together, even though he considered them separate matters. He noted that they made settlement in Michael’s matter contingent upon Jess agreeing to submit to university punishment for the blog and signing away any right of appeal to the university’s decision. Also, the university’s attorneys wanted both father and son to sign confidentiality agreements, mandating that they not speak about either the blog or Michael’s case. Negotiations fell apart a few months ago, he said, when Michael and Jess did not agree to these terms, not knowing what punishment to which Jess would be subjected.

“I don’t think there’s any thing libelous in that blog,” Altman said. “There might be some opinions that Butler people don’t appreciate about certain things, but there’s nothing untruthful. I think the difficulty with the blog is that it was anonymous. If you know where the source is, then there’s a different way to interpret things. If they knew the source, I don’t think they would have interpreted the blog as something that would reach harassment. In regard to the e-mails being cited as harassment, I think any reasonable person would not have interpreted them that way.”

Altman said he believes the case being brought by the university is a strategic lawsuit against public participation [SLAPP], intended to silence his client and burden him with with the cost of legal defense until he ceases his criticism of the administration.

“This isn’t about winning,” Altman continued. “I mean, what damages are they going to get out of a college junior?”

On behalf of the university, Blickman said the case was not a SLAPP and characterized the failed settlement between Michael, Jess and Butler differently.

“Butler University found itself in a position where individuals felt harassed and they believed that Soodo Nym's mission was to maliciously harm their reputations,” Blickman wrote in an e-mail. “We came to the defense of these individuals. Butler did not know Soodo Nym's identity until June. We pursued a resolution that we felt was fair for all parties. Regrettably, that did not occur. The university is following its normal and customary processes in handling this matter.”

He also countered that the university’s suit was fair and reasonable, considering what the blog contained.

“Some people mistakenly believe that the Internet is the Wild West where no rules apply,” Blickman wrote. “But that is just wrong. It is simply a venue no different than the newspaper or the town square. If you defame someone on the Internet you should be held accountable. You can't hope to find shelter from the First Amendment when you engage in serial harassment and defamation. The Founding Fathers certainly could not have imagined the Internet but they surely never intended our First Amendment to protect individuals who engage in malicious conduct that harms others. I suggest that you review each entry in Soodo Nym's blog. It is not appropriate to consider a single e-mail in isolation. If one reads the entire blog the only reasonable conclusion that can be reached is that Soodo Nym's comments were defamatory and legally actionable.”

Impressions of the Case

Now that he has identified himself as the blogger, Jess Zimmerman said he has no regrets about anything he wrote under the previously anonymous moniker “Soodo Nym.”

“I’m willing to say that I might not have been as nice as I could have or should have been,” Zimmerman said. “But, being a little mean isn’t harassment, libel or defamation. There can be good reasons for remaining anonymous. Butler being so small is a blessing and a curse. It’s great that everyone knows everyone, but it can make it hard to discuss serious issues. I’m not in the game of playing hindsight is 20/20. I believe I would make the same decision to be anonymous again.”

He was also willing to acknowledge that the situation involving his stepmother might have affected his writing or decision to write. Still, he noted that he would have done the same for anyone “suffering a similar injustice,” calling himself a student who was “concerned” and wanted to “do something to help the situation” by making it public.

Now that he has come forward as the former “TrueBU” blogger, Jess has started a new blog, “I Am John Doe” to chronicle openly the lawsuit being filed against him by the university. He said he feels it will be “less stressful” to “put [his] name on this blog.”

Michael Zimmerman, while making plain that he and his wife played no role in Jess’s blog, said he was “incredibly proud” of how his son has “handled himself,” noting that his blogging was an example of him putting to use the critical thinking skills the university has taught him.

“The question of whether or not he should have been anonymous from the beginning is an interesting one,” he said. “In particular, I don’t think there’s any second guessing or looking back. … I honestly don’t think people should put so much emphasis on his being anonymous. What’s the difference? If what he wrote was appropriate and he had documents to back everything up, what does it matter that he signed it or not?”

Andrea Gullickson expressed a similar sentiment, but said a “culture of fear” pervades Butler to the point where being anonymous is often the only way students and faculty members feel they can voice concern.

Of what her family has gone through at Butler, she said, “We want to move on with our lives.”

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