Professor Ann Lipton (Tulane) explains:

Previously, I announced that my paper, Capital Discrimination, would be forthcoming in the Houston Law Review, and had just been posted publicly to SSRN.  As I explained in that post, the paper explores the problem of gender discrimination against women as business owners and capital providers, and proposes changes to both statutory law and common law fiduciary duties in order to address gender-based oppression in business.

 

The paper itself describes several business law cases from different jurisdictions, including Shawe v. Elting, a matter very familiar to business lawyers, and which involved an acrimonious dispute in the Delaware courts.  Just before Christmas, an attorney representing Philip Shawe sent this cease and desist letter to SSRN, demanding that the paper be removed from that site as defamatory. 

 

On New Year’s Day, SSRN removed the paper in response to Shawe’s letter.  After that, Houston Law Review could no longer assure me that the article would run in its journal, and stated that they would not preclude me from submitting the paper for publication elsewhere.   

The court opinion in Shawe v. Elting does not present, shall we say, a flattering portrayal of Mr. Shawe.  But Mr. Shawe's counsel, in the cease and desist letter, takes the view that Professor Lipton's characterization of Mr. Shawe as having engaged in sex- and gender-based misconduct in his trade (based on the fact described by the court) is defamation per se.  (The court does not find that Mr. Shawe engaged in sex- or gender-based discrimination, since that was not the legal issue before the court.)  Tulane's legal counsel takes the position that Professor Lipton's characterizations are non-actionable "opinions."

There are two legal issues here:  first, some commentators have asserted that Section 230 protects SSRN from liability even if Professor Lipton's article is defamatory; and second, and most importantly, there is the question of whether or not Professor Lipton's characterization of Mr. Shawe's conduct as sex- or gender-based "misconduct" is a non-actionable opinion.  I am inclined to think it is, but would be glad to hear from defamation, as well as Section 230 experts, on both these issues.  Submit your comment only once, comments are moderated, and may take awhile to appear.