Don’t Blame Rabel …

Jerry Coyne had a debate with John Haught where according to Coyne Haught lost and Coyne won. Now comes word that Haught doesn’t want the video posted and Robert Rabel at the university has honoured that request. Coyne suggested other options to Rabel and Rabel has refused, and Haught has said that it doesn’t meet what he considers reasonable standards for civilized discourse and so won’t allow it to be posted.

Now, I think that Haught really should allow it to be posted and that he’s using a technicality — ie “I agreed to be filmed, but not necessarily to post the video” — to get around that. I won’t go so far as to accuse him of not wanting it posted just because he lost — I’d need to see it to say that — but win or lose it should be posted, or else he needs to give more of a reason than what he did. Haught is wrong here.

But some of the commenters on the site are going after Rabel as well. Most of them are semi-polite, but the worst are like

Not only the cowardice of a theologian, but the quite contemptible cowardice of Dr Rabel of the Gaines Center.

and

Everyone should email Rabel and Haught for their cowardice and censorship.

The problem is that Rabel may not be at fault here, at least not in any really problematic way. Haught is, as I said, pulling out a technicality to avoid having the video published. Rabel has to honour that for two reasons. The first is that he may have legal obligations; posting this debate probably isn’t worth having the organization sued. The second is that he wants to play nice with the people who come to debate there, and that means respecting their requests. While Coyne might not ever do it, if he had a reason to insist that the debate not be published he would want Rabel to respect that. So Rabel’s in a tough situation here, and Coyne’s pushing is likely to simply annoy him since he’s really trying not to say “Neither I nor anyone else can do this due to potential legal issues that I’d be responsibile for and you wouldn’t be”. The E-mails from some of the commenters likely didn’t help at all, especially if they expressed any notion of Rabel being a coward or anything like that.

Look, it isn’t censorship for Rabel to not post something that he not only has no legal obligation to post, but where he may not, in fact, be legally entitled to do so. I doubt he cares enough about this debate to get himself in legal trouble for posting it, nor should we expect him to be. So lighten up on him.

Haught should allow it to be posted, but given Haught’s objection Rabel is doing nothing wrong in honouring it.

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16 Responses to “Don’t Blame Rabel …”

  1. Gary Radice Says:

    OK, but you just said, “Rabel has to honour that for two reasons.”

    Has to?

    The first reason you gave was pure speculation about possible legal reasons, the second was also your speculation about Rebel wanting to play nice.

    Neither of your speculations seem to me to rise to a level of imperative.

    I’ll give you that there might be legal reasons, but the second would simply be Rabel’s choice among several alternatives, including “playing nice” with his funding sources.

  2. Shawn Says:

    You are glazing over the crux of the issue regarding the outrage toward Rabel:

    “Coyne suggested other options to Rabel and Rabel has refused”

    By allowing Coyne to make his own comments public, not only does this “…play nice with the people who come to debate there, and that means respecting their requests.”, but it also shows that he is impartial.

    By not allowing Coyne access to his own words, he is, de facto, taking sides.

    It is this that places Rabel in the same camp as Haught.

    Why would you video tape a debate, with the agreement of both sides, and let one side determine if the other side can have access to that tape?

  3. verbosestoic Says:

    Gary,

    The instant that Haught said — as was reported in Coyne’s post — “I didn’t agree to have this published or posted”, a potential legal situation was created. That’s not speculation, nor was my reference to “may have legal oblgiations” wasn’t conveying speculation, but was conveying that Haught’s technicality might indeed be a basis for Haught to sue and win the suit if Rabel did post it. The reason it’s only a may is that the court may well side with Rabel over Haught on this, but I doubt Rabel would like having to go to court to settle it.

    The second one is only slightly speculation, but a quite reasonable one: It would hardly promote speakers coming to these events if the institute was sued by one of them for posting the speech without permission. Surely you can accept that as reasonable, no?

    Because of his obligations — as you accept — to the institute and his own interests, Rabel has to honour the request. Yes, you can try to make an argument that it doesn’t rise to the level of moral imperative, but posting the debate doesn’t either, and Rabel clearly has obligations that would mean that he really should honour this and is doing nothing wrong in doing so. At which point, your objection turns into nitpicking over a word while glossing over the fact that these are legitimate reasons for Rabel to make the choice he did.

    • Gary Says:

      I agree that as soon as Haught balked at having the recording posted, a legal situation was created, but not in the way you think. The debate series is funded by a grant from the NEH. Grants from these public funds include the condition that the results be made available to the public, and the results become the property of the NEH. Previous debates in the series were published at the Gaines Center site. So, Haught seems to have asked Rabel to violate both the spirit and the terms of Rabel’s funding. In complying with Haught’s request, he might have some serious ‘splainin to do to the Feds.

      As you note, the recording does not belong to Coyne. Presumably it does not belong to Haught, either. Rather, it looks like it belongs to the Gaines center and to the NEH. If it belongs to neither participant, what gives Haught the right to control its disposition?

      So, not only did Rabel not have to make the decision he did, there are legitimate reasons for believing he should have made a different choice. I’m not piling on Rabel: Haught put him in a difficult position.

      • verbosestoic Says:

        I saw that NEH argument, but the problem is that to use that to force this video to be published would get into a lot of legal wrangling over what “make public” and “results” actually mean, as well as if that obligation holds even if one of the participants says that they didn’t agree to have that be made public. It isn’t clear that the NEH obligation would allow Rabel to publish it, and Haught could certainly have sued on the basis that he didn’t give permission.

        As for control, the issue is that if you do something and try to make it public that the other person did not agree to make public, you do run the risk of being sued for not respecting the various agreements or their privacy. Thus, both Coyne and Haught have equal control in that respect. Haught was the one who exercised that control, but that both of them have that control does not in any way mean that there is any notion of control to force the publication of the video.

        Ultimately, regardless of the NEH position, if Rabel had published it over Haught’s objections Haught would have had grounds for a lawsuit … and the ability to rant that they published something of his without permission. Which is more than enough reason for Rabel to decide to simply not get involved by deciding to not publish it.

  4. verbosestoic Says:

    Shawn,

    All Rabel has done is say that he won’t publish the footage himself and won’t give Coyne the footage that belongs to the institute and not Coyne. That does not mean that he is taking sides. One of the participants stated that he did not give permission for the footage to be published, and Coyne has no right in any way to the footage from that even or for it to be published. Looking at it impartially, Rabel’s stance is quite reasonable; he’s refusing to do something that might get him and the institute in legal hot water and would risk alienating potential speakers by demonstrating that he won’t respect their wishes if they don’t want the speech posted, and he has no such obligations to Coyne’s request that it be posted at all.

    And note that he isn’t denying Coyne access to “his own words”. Coyne, as far as I know, is free to post his entire speech and notes as he remembers them, and Rabel can’t and probably wouldn’t want to do anything about that. All Rabel is denying Coyne is the footage of the speech … but that footage is the institute’s, not Coyne’s and Coyne has no right to it.

    So I definitely think that the outrage towards Rabel is misplaced and excessive.

  5. Lou Jost Says:

    I don’t see that anyone can defend Rabel in this. The Kentucky Freedom of Information Act gives Coyne the right to a copy of the tape, and and the NEH requires that the products of their grants be made public. See Coyne’s posts for full details. Furthermore, the event was public, free, and happened at a public institution. I think anyone had the right to film this, and anyone could post it without asking the participants’ permission.

    In most debates there are winners and losers. Giving the participants veto power over the distribution of a debate video is tantamount to ensuring that most debates get suppressed. It did not make sense for the Gaines Center to hide this debate (and as mentioned above, it may also have been illegal for them to hide it). What big-name person would come there to debate, if he knew that the loser could make the debate disappear? This would trash the reputation of the Center.

    Anyway the right decision has now been made. In retrospect, after seeing the video, Haught’s complaints seem absurd. There was no ad hominem, just very direct assessments of Haught’s vacuous claims. Haught just didn’t like someone daring to point out the obvious: Haught’s fancy verbiage = “making stuff up”.

  6. verbosestoic Says:

    Lou,

    First, I highly doubt that the Freedom of Information act would allow Coyne a copy of the debate that he then would be allowed to edit and post, which is what Coyne asked for.

    Second, the NEH grant stipulation does not necessarily apply in cases where there are potential legal issues, such as one participant saying that they never gave permission for it to be posted and were unaware that it would be, as I’ve outlined in other comments.

    Third, Haught’s actual objection — that I called a “technicality”, remember — is that he never agreed to have it posted and you can’t post something if one of the participants did not agree to have it posted beforehand. That’s a special case and I’d presume that for future debates Rabel and the institute would make it abundantly clear beforehand that this will be posted so that they can agree or disagree to it. So it in no way involves allowing someone to control whether or not it gets posted in general from Rabel’s view. So, none of those objections really impact the discussion.

  7. Lou Jost Says:

    Here is what the Kentucky FOIA says:
    “Any person shall have access to any public record relating to him or in which he is mentioned by name, upon presentation of appropriate identification, subject to the provisions of KRS 61.878“.
    Rabel initially refused this request.

    Here is what the NEH grant rules say:
    “Recipients are expected to publish or otherwise make publicly available the results of work conducted under an award. Unless otherwise specified in the award documents, two copies of any published material resulting from award activities should be forwarded to the appropriate NEH program officer as soon as it becomes available. This material should be labeled with the identifying NEH award ID number.”

    “All publication and distribution agreements shall include provisions giving the government a royalty-free, nonexclusive and irrevocable right to reproduce, publish or otherwise use the material for federal purposes and requiring the acknowledgment of NEH support. The publication shall also include the disclaimer contained in Article 3 of these General Terms and Conditions for Awards.”
    Rabel did not want to do that.

    Haught’s technicality about giving permission only to tape, not to make the tape public, is irrelevant, because his permission was never needed for someone to film a public, free event in a public place, and anyone could make that film public.

  8. verbosestoic Says:

    Lou,

    “Access” does not include the right to edit and post, which is what Coyne asked for.

    We do not know if these debates count as results of work for the purposes of the NEH grants. Also, if there was no explicit distribution agreement it would only mean that Rabel made an error in not creating one or assuming that it would be implicit, which would not in any way mean that he had to allow the publishing or that Haught’s technicality wouldn’t hold up.

    Again, in court, Rabel might use the last one to win … but he could, in fact, lose. But he would lose if it went to court regardless of whether or not, at the end, he won the case.

  9. Lou Jost Says:

    Rabel did not even give Coyne conditional access to his own part, contrary to Kentucky’s FOIA

    And yes, we do know this was partly supported by an NEH challenge grant, so he was violating that too.

    He also violated the implicit agreement he had with Jerry that the event would be posted.

    And as a publicly funded, free, open-to-the-public event, I do not think permission to film or distribute is even necessary.

    I cannot imagine why you are bending over backwards to defend Rabel’s indefensible behavior. You appear to have some bias here.

  10. verbosestoic Says:

    Lou,

    Coyne asked him to edit out Haught’s part and post it, which Rabel refused to do. Coyne then asked Rabel to give the whole thing to him so that he could edit out Haught’s part and post it, and Rabel said that wouldn’t work either. You seem to be ignoring this; giving it to Coyne to look at would in no way have settled the issue.

    Again, we don’t know if a public debate counts as a work for the purposes of that grant, and continually claiming that the NEH funded it in no way address that NOR the point that that requirement may well be superceded if there are other legal concerns, like one party saying they didn’t agree to have it posted.

    And the agreement with Coyne to publish it is not an issue here, because of the technicality I pointed out; if Haught claims that he did not give permission to have it posted, Rabel is indeed legally bound by that and Coyne really has nothing to say about it, as he cannot demand that someone do something illegal to satisfy him.

    Considering that everyone agrees that Haught did give permission to be filmed, your claim there is a bit doubtful. Regardless, even in public there are issues with someone being filmed and then having that posted; I am quite certain that if someone films me and posts it on Youtube I can appeal and have it taken down for no other reason than I’m in the video and didn’t give permission, even if that was in public.

  11. Lou Jost Says:

    You seem to ignore the fact that Rabel HAD TO give it to Coyne; it was illegal not to. He could have conditioned it on Coyne not posting it; there was some discussion on his website of perhaps making a transcript, or using actors to re-enact it.

    I don’t know what you refer to here: “Considering that everyone agrees that Haught did give permission to be filmed, your claim there is a bit doubtful.”

    Is your statement about YouTube really true? I honestly don’t know, but if people were allowed to take down anything that contained images of them in a public space, why would police brutality videos ever stay there? Or any other embarassing videos? I think we void our right to privacy when we are in public. I am not a lawyer. Are you?

  12. verbosestoic Says:

    Lou,

    He would have legally had to do it if Coyne made the request under the Freedom of Information Act. He didn’t. He wanted it so that he could edit and post it. Even if he after that commented that he just wanted access to it, Rabel would be quite justified in arguing that he only wanted it to do that and, as someone commented on Coyne’s site at the time, simply didn’t trust him to not do that. Thus, Coyne would have to go through formal procedures to get it, which he never did and the situation was resolved before that could be done regardless.

    While you may argue that since it was a public event they didn’t need permission to film or publish it, the institute specifically asked for permission to film, which also implies permission to publish. A recording in the audience might be different, but that would not impact Rabel.

    I know of — but can’t look now — some cases where you can indeed do that; it’s a privacy issue. But it depends on jurisdictions, and in some cases it depends on whether or not people complain. I do seem to recall, however, that police brutality videos may not last long on places like YouTube once they go public.

  13. Lou Jost Says:

    You said “the institute specifically asked for permission to film, which also implies permission to publish. ” Exactly.

  14. verbosestoic Says:

    Lou,

    Slight misstatement that you then ran with: if they had to ask permission to film, they also likely had to ask permission to publish.

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