12/23/00 -- ACTION ITEM! Boise Cascade Mounts Attack on Academic Freedom

ACTION ITEM!

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WORLDWIDE FOREST/BIODIVERSITY CAMPAIGN NEWS

Boise Cascade Mounts Attack on Academic Freedom

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Forest Networking a Project of Forests.org

http://forests.org/ -- Forest Conservation Portal

http://forests.org/web/ -- Discuss Forest Conservation

12/23/00

OVERVIEW & COMMENTARY

Global timber cartels operating like mafia thugs are using heavy-

handed tactics to ensure they can commercially liquidate the World's

remaining forests. The article below shows that tactics include

threatening lawsuits to stifle academic study of the social and

ecological costs of industrial forestry. Boise Cascade has found it

necessary to stifle academic freedom, seeking to suppress an already

published academic article entitled "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", that was published in the Denver Journal of

International Law and Policy. The large timber companies have their

hands upon the throat of the Earth and all its defenders. They must

not be allowed to win. Stand up, organize and advocate!

g.b.

ACTION ITEM:

Contact George Harad, the CEO of Boise Cascade Corporation, and

demand that the company stop logging and selling old growth wood and

stop censoring academic enquiry. Unless they do so, make it clear

you will not support any business that carries Boise Cascade wood and

paper products.

George Harad

Chief Executive Officer

Boise Cascade Corporation

1111 W. Jefferson St.

Boise, ID 83728

Email: bcweb@bc.com

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Title: A Journal Article Is Expunged and Its Authors Cry Foul

http://chronicle.com

Date: December 8, 2000

By: PETER MONAGHAN

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Denver had "withdrawn" an article that the two scholars and a third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

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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