Free speech could cost author $5,000,000
What's freedom of speech worth?
What would you pay to be able to tell the truth even if it bothered some people?
It may seem odd to be asking the price of something which is, by definition, free.
But for Walter Brasch, author of a yet-to-be-published study of the demise of the Globe-Times, a Bethlehem Newspaper, the question has become sickeningly relevant.
Free speech for him could cost $5,000,000.
That's the amount of the bond that his publisher, Associated University Presses has told him he must obtain to protect it from potential libel suits after it publishes "Betrayed: The Death of an American Newspaper.'
AUP produces and markets books for a consortium of universities, including Lehigh University in Bethlehem, which accepted Brasch's book for publication
To get the $5 million bond, the author said, would cost about $25,OOO. Or, alternatively, I could put up my house and all my personal property,"he added wryly.
So unheard of is it to ask an author to put up a $5 million libel bond that when this reporter asked Philip Mattera, grievance officer and vice president of the National Writers Union how common the practice was, he laughed. "It's very unusual to ask for any kind of bond,"he said. 'I have never heard of it before. If this became common practice, most authors would drop out of the business."
Kyle Neiderpruen, a reporter for the Indianapolis Star who heads the Freedom of Information Committee for the Society of Professional Journalists, said, "what's sad here is that a lot of university presses tend to print more unusual topical and subject matter that tends to be a little more controversial, and that is what you associate with them as being bastions of freedom of thought. But that certainly doesn't seem to be happening here. "
SPJ lawyers indicated that book publishers have little to worry about regarding libel suits. "It's my impression,"she said, 'that in several cases in which publishers were sued for libel, the court held that a publisher can't be held liable unless it had a strong influence in constructing the book."That would mean things like helping to draft the content or doing some of the reporting, she said.
Brasch wrote his own book. Additionally, his contract with AUP contains an indemnification clause, in which he promises to pay all the costs of defending against any libel suit.
A former reporter and editor, now a syndicated columnist, journalism professor at Bloomsburg University and an author of nine other books, Brasch spent six years during which he interviewed more than 200 people to write the story of the Globe-Times.
In 1988, the Globe-Times was a respected small Bethlehem newspaper of which one former editor, John Strohmeyer, had won a Pulitzer Prize and served for some years on the Pulitzer Committee. But he left the newspaper in the mid-'80s.
The paper had a circulation in 1988 of about 35,000 when, it brought in a security company to patrol the property one day, and proceeded to lay-off 15 percent of its staff. Newspaper layoffs have become old news since, but in 1988, the fact that it was done and the manner in which it was carried out were shocking enough to shake newsrooms around the Northeast.
Over the years that followed, the paper lost 42 percent of its circulation for various reasons described in 'Betrayed,"and was bought by the Express, an Easton paper, in November 1991.
When Brasch began his research and first called this reporter, who was one or about 12 in the paper's editorial department who were cut, he was planning to do an article about the layoffs.
But as time passed, the author said he realized the paper was going to fail and decided to follow it to the end, which turned out to be its purchase by the Express.
When the book was finished in 1992, Brasch presented it to Lehigh University for publication. The university eventually agreed to publish it. Brasch's contract, which is with AUP, is dated June 9, 1994
Some time before that, he had had a Penn State lawyer read, "a very firm first draft"for libel.
"It came back,"he said, "with three pages of comments that said things like, 'Add he said.' I had it all done in a couple of days. "
The book also had been sent out to reviewers, who praised it. While lamenting its length, they called it "an important book in the field"said it had "extensive thoughtful analysis,"was "loaded with human interest anecdotes,"and sound scholarship.
Nevertheless, in the fall of 1995, things started to go sour. The book was already in galleys, the cover designed, and Brasch said he had been asked to save some time in July 1995 to do the index. The book was planned to come out in time to catch some of the Christmas trade.
"So I blocked out some time in late July, but I didn't hear anything,"the author said in a telephone interview. "I called and asked questions, but no one would give me any answers."
What happened, Brasch found out, was that, AUP had asked Lehigh's press board to have the book lawyered there. The press board sent the manuscript to the treasurer, who controls access to Lehigh's lawyers. The treasurer read it and said it was terrible, that it could anger people and restrict donations to the university. Ann Taylor, the wealthy former publisher of the newspaper, lives in Bethlehem.
The treasurer sent the book to the provost. The provost called it sensationalistic, and said the university shouldn't publish anything like that
"I was told at one point that Lehigh was going to kill the book,"Brasch said.
Several days after that news became public at the beginning of November, the university announced that it did intend to publish the book. And within a few days of that, Brasch received the letter asking for the $5 million bond.
Since then, Brasch also has been asked to pay $500 of an estimated $2,OOO fee for a libel lawyer AUP has gotten to read the book.
Brasch said he researched carefully and followed standard journalistic practice in getting facts confirmed. He also mailed out passages in which they were quoted to 200 people to assure he had quoted them correctly.
When Julien Yoseloff, director of AUP, was asked how frequently they demand libel bonds of their authors, he answered with a prepared statement, saying that, AUP and Walter Brasch are currently in discussions with regard to certain aspects of the publication contract for his book. These discussions are between private parties and are ongoing. As such, we consider it inappropriate to share the content of the discussions with outside parties at this time. These discussions have arisen as a normal part of the production process. We have not been contacted by any outside parties in regard to the matters under discussion."Yoseloff said that last sentence was included because he has been asked whether outside pressure has been exerted not to publish the book. He would not reply to any other questions.
Lehigh takes a similar position, suggesting that nothing unusual has happened. Regarding the $5 million bond, Ron Ticho, vice president for university affairs, said, "It's not our position to comment on that. That's a matter between Walter Brasch and AUP."
Asked whether Lehigh is concerned about the effect publication might have on its donations, Ticho replied, "I think the question is irrelevant. If the book has merit, then it should be published."
The book was reviewed by the press board, he said, "and after a lot of discussion was approved and sent on to AUP."
But when asked how it happened that the last November's discussions took place a year and a half after the contract was signed, Ticho said he wasn't in his current job at the time. "I don't have the exact dates,' he said.
He said the university has no treasurer.
He also suggested that this reporter's writing this story is improper. Aren't you worried about conflict of interest?"he asked.
It would be hard to see the publication of a book as a benefit to a reporter, who appears in it not because of skill, but because of having been in a group who were laid-off.
Mattera of the Writers Union said he thinks the bond is a ploy to get Brasch to withdraw his manuscript, implying that the publisher is showing excessive timidity.
The law is greatly weighted in favor of free speech, he said. For a statement to be libelous, not only must it be untrue, but its author has to have known it was untrue when he wrote it and used it anyway.
"I feel publishers have to have a certain amount of courage in defending free speech rights,"Mattera said. "Some libel suits are really just harassment
"You can't let the lawyers control the process. There are times when you have to take risks. Just because statements are critical doesn't mean its libel."
Brasch, asked whether he thinks his 125,000-word, 400-page book ever will he published, said, "Who knows? I don't know, and at this point, I don't even care. Because at this point, I don't think my publisher's going to have the courage even to defend the book from frivolous lawsuits and a writer depends upon a publisher to do that."
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