In November, I retained one of the leading defamation lawyers in Canada to explore my legal remedies for the misstatements of fact in the boycott statement from September. As I noted on October 8, the fact that half the University of British Columbia philosophy department did not sign on to this letter on behalf of their colleague was a red flag, and further investigation revealed, as suspected, evidence that the boycott statement contained falsehoods.
On December 15, my lawyer sent the following letter to Carrie Jenkins and Jonathan Ichikawa: Download Leiter B re Prof C Jenkins Prof J Ichikawa December 15 2014 Letter, asking for a response by December 31. The letter says, in pertinent part, that, "The September Statement falsely portrays Professor Leiter as a 'tormentor' of Professor Jenkins whose actions had 'very serious' 'effects' on her, including "impacting her health, her capacity to work and her ability to contribute to public discourse as a member of the profession. The September Statement should not have said this," since these claims are not accurate, for reasons my lawyer explains in the letter. (Prof. Ichikawa, very unwisely, misrepresented* the contents of this letter on his blog today; why he picked Christmas Eve for this, I do not know.)
I was hopeful the matter would be resolved without litigation, but on December 22, Jenkins and Ichikawa, through their lawyer, rejected the settlement proposal outright (here: Download 2014 12 22 Final ltr to Schabas). Strikingly, in rejecting the settlement, they did not assert that the challenged claims in the September Statement were true (or "substantially true," the relevant language in this context), but only that they constitute "lawful expression under the law of Canada and the First Amendment of the U.S. Constitution."
These words were clearly chosen carefully by their lawyer. Of course, falsehoods and/or misleading statements could turn out to be "lawful expression" under both Canadian and American law (though the reference to American law is bizarre, since my lawyer's letter was explicit that we are going to bring suit in Canada), if, for example, they are not damaging or fall under one of the exceptions for damaging falsehoods. Under Canadian law, this does not appear to be the case in this instance. (In this regard, it is striking that their lawyer prefaces the response by stating, "I am instructed to advise you," which to a lawyer's ear means, "Against advice of counsel, this is the position of my clients.")
In any case, with this response, we now have an effective admission by Jenkins and Ichikawa that they misled the philosophical community with their claims in the September Statement.
A CLARIFICATION: Legal remedies may yet be pursued against others among the original signatories and authors of the September Statement. As I have remarked previously, I do not begrudge those who signed subsequently for doing so given the misleading statements that were presented to them.
*ICHIKAWA'S MISREPRESENTATION OF THE LAWYER'S LETTER: Ichikawa asserts that my lawyer claimed I had been defamed by Jenkins's "pledge on her tumblr blog to behave with civility" (conjoined with a threat to treat those who didn't live up to her standards as "not normal" professionals) and by Jenkins making public my July 2 e-mail to her. This is false; the lawyer's letter does not claim that either of those incidents contain or constitute defamatory falsehoods. The lawyer letter mentions these as part of the relevant pre-history leading up to the alleged defamatory falsehoods in the September Statement--the first, for example, because it was intended by Jenkins as a criticism of me (as everyone at the time knew, and as one of her friends has now admitted), and thus explains my private response, which she chose to make public. (UPDATE: Jenkins has since removed his post, no doubt after his lawyer realized the mess he was making for both of them.)
UPDATE: ON THE CULTURE GAP BETWEEN PHILOSOPHY PROFESSORS AND LAWYERS: Corresponding with colleagues elsewhere, including those who share my doubts about the pair in Vancouver, I have realized how my many years as a philosopher in a law school have left me out of touch with the sensibilities of those making careers in philosophy departments. In my world, lawyers are not scary, talk of defamation is not scary, talk of lawsuits is not scary: all this is just part of the civilized infrascture of modern societies in which possible wrongdoing can be subjected to formal procedures for adjudicating the merits.
The reason I retained a leading defamation lawyer in Canada was precisely to determine whether I had a case under Canadian law, where the defendants reside; no letter would have been sent were the answer 'no.' (Canadian law is less friendly to defamers than American law, but arguably in ways more fair to victims.) Despite being subjected to hundreds of defamatory and non-defamatory abusive and harassing attacks in cyberspace over many years, this is the first time I have ever retained a lawyer to explore my remedies formally in order to reach a settlement. That's how serious I judged the wrongdoing connected to the "September Statement" to be.
Someone in cyberspace (I now forget where) claimed it violates "collegial obligations" to challenge suspected tortious wrongdoing by hiring a lawyer. I confess I laughed out loud at this. I have collegial obligations to my colleagues, not to people I've never met who have repeatedly taken to social media to try to harm me. And consulting a lawyer expert in the area and trying to settle a case involving allegations of tortious wrongdoing is what lawyers normally do in situations like this. I now realize philosophers do not understand this and so it seems shocking to some of them. I apologize to those startled by these developments, but it is the civilized way of trying to resolve a dispute when other efforts have failed. Given how much is not yet public, I would hope that fair-minded individuals would reserve judgment.
Consider a hypothetical, not actual, scenario:
Suppose Professor X publishes purportedly factual allegations about terrible harms you have caused him, which ignite a firestorm of protest and anger at you. Suppose you then acquire evidence--from Professor X's friends and colleagues, from documents, etc.--that the factual allegations are false. You also know that Professor X will not respond to any e-mails you send seeking a resolution; in the past, attempts to conciliate have been met with ridicule and further harassment. You could, of course, publish the evidence you have on the Internet, except your sources do not want to be named, and publishing the evidence in a forum without a qualified or absolute privilege could expose you to legal liability. So how else to proceed but to consult with a lawyer, and have the lawyer state the case and propose a settlement?
But enough about hypothetical scenarios; in the real case, when challenged with making false statements of fact, Jenkins and Ichikawa did not defend those statements as "true" or even "substantially true," but only as nonetheless "lawful." This effective admission to having misled the philosophical community in the September Statement illustrates the utility already of my having sought legal counsel on this matter, even if no further action is taken.
ANOTHER: OF ALL THE MISSTATEMENTS OF CANADIAN LAW I've seen the most ridiculous is that truth is not a defense in a defamation action. Of course it is! From a practitioner's treatise on Canadian defamation law (co-authored, as it happens, by Jenkins's & Ichikawa's attorney): "Justification is a complete defence to a defamation action. If the expression at issue is true, the plaintiff's defamation claim concerning that expression must be dismissed." Moreover, "A decision to plead justification should not be made lightly. An unsuccessful plea of justification may be taken into account by the court when assessing damages....[A] failed plea of truth may aggravate the plaintiff's damages or underpin an award of exemplary damages. It may also lead to a more substantial award of costs against a defendant." For these reasons and others, their lawyer's failure to assert the substantial truth of the challenged claims was very revealing.