‘The Archetype of Censorship:’ U of A Revokes Access to Public Clinton Archives

Hillary Journalist SuspendedThe University of Arkansas’s library system dean apparently didn’t like a recent news article in the Washington Free Beacon — an article based on information found in the U of A archives. The dean reacted by writing a letter to the Beacon, accusing the news site of violating the University’s “intellectual property rights,” demanding that it remove part or all of its news story from its website, accusing it of “blatant and willful disregard” of library policies, and informing it that it had been “officially suspended” from its archive research privileges.
This all started earlier in the week, when the Beacon published an unflattering story about Hillary Clinton’s work as a public defender during her time here in Arkansas. The story is part of the Beacon’s ongoing investigative work into Hillary’s past, in advance of her likely 2016 presidential bid. After digging through archived documents in the University of Arkansas’s library, the Beacon uncovered never-before heard audio of a conversation between Clinton and former Arkansas reporter Roy Reed in which she cracked a joke about her time defending Thomas Taylor, who had been charged with raping a 12-year-old girl.
But now the university is revoking the Beacon’s access to the public archives. In an email to the Beacon earlier this week, library dean Carolyn Henderson Allen, a 2007 Hillary Clinton donor, said access to the records was being revoked due to an “ongoing violation of the intellectual property rights” of the University:

I am writing you to direct you and the Washington Beacon Press to cease and desist your ongoing violation of the intellectual property rights of the University of Arkansas with regard to your unauthorized publication of audio recordings obtained from the Roy Reed Collection.

According to the Beacon’s report, Allen said the university would “consider lifting the suspension if the Free Beacon complied with all its demands to remove the materials from its website.”
Under media scrutiny, the U of A is now citing a different reason for squelching access to the documents: Laura Jacobs, who identifies herself as a “PR practitioner” for the University of Arkansas, notified us on Twitter that the real reason for the Beacon’s suspended access to the archives was a “lack of citation compliance per protocol.” We have requested a copy of the university’s citation compliance guidelines. As of press time, we have not received them, but we will update this post if they arrive. Update, 7:12pm: Jacobs has provided this link to the university’s “citations guide.”
In a follow-up statement to The Arkansas Project, Jacobs said:

This is just a suspension and not a ban. We treat all researchers equally but expect them to follow standard procedures and policies. Ms. Goodman references the suspension and reason in her article, but calling it a “ban” in the headline sounds more exciting, and indeed, audiences have grabbed that headline and run with it without benefit of the facts. Our collections are there for all researchers, and all researchers are expected to follow our policies and procedures — as would be the case with any library.

But the Free Beacon’s attorney, Kurt Wimmer, said library staff “provided the recordings to the Free Beacon without any condition, apprised the Free Beacon of no ‘policies’ limiting their dissemination, and required no agreement to be signed prior to receiving them.”
Ultimately, the question is: do the archives constitute public documents, and can the library really deny access to public records? UALR Bowen School of Law’s Robert Steinbuch, Arkansas’s foremost expert on freedom of information and public access, says yes (they are) and no (it can’t):

Documents donated to a public library for public review are public documents. Once those documents are public documents, the library cannot restrict access to them because they don’t like what the user has done with them.

When asked by e-mail if the Clinton-related records were considered public, Jacobs said “absolutely.”
Steinbuch also commented that the university’s actions smack of censorship:

It’s really remarkable that this person has public access before they made critical comments, but then didn’t have public access to these documents after he made critical comments…The archetype of government censorship is restricting access to public information to only those outlets that will write friendly stories.

As for the question of “intellectual property rights,” Steinbuch, an attorney and law professor, said the materials in question are almost certainly not protected by copyright law:

Almost certainly not copyrightable; it has to be something creative that is recorded in a fixed medium and that the recording is part of the creative process. If I write letter or a book, that’s a fixed medium. But the creative process to create a recording is just turning on a recorder. There is no intellectual property here.

Selective access to public property after unflattering news reporting seems to be a theme within Arkansas universities: in January, Arkansas Project editor Nic Horton was told (groundlessly) that he could no longer attend University of Arkansas-Little Rock faculty meetings after he published a story that was critical of the school’s (unconstitutional) affirmative action proposal. UA Chancellor G. David Gearhart, who also has a long history with the Clintons, was accused last year of telling employees to “get rid” of documents that might later be requested via the FOIA. Gearhart denied those accusations.
While we promise we’re still not that Arkansas Project and that we aren’t obsessed with the Clintons, we are always interested in promoting open and transparent government. Unfortunately, there’s not enough of it in Arkansas’s university-industrial complex; the months leading up to the 2016 election promise to be an exciting time for Arkansas journalists.
In conclusion, we think Free Beacon founder Michael Goldfarb said it best:

Regardless of the politics surrounding these events, we hope that press will scrutinize the university’s conduct here, and that decent people will stand with us in condemning this attack on our first amendment rights. We will not cease and desist.

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6 thoughts on “‘The Archetype of Censorship:’ U of A Revokes Access to Public Clinton Archives

  • June 19, 2014 at 9:23 pm
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    Heh. Your so-called expert law professor says recordings are “almost certainly not copyrightable.” Yet when I do a google search for “copyright on recorded speech” the #1 result is a document from the US Copyright Office that says, “The copyright law of the United States (title 17 of the United States Code) provides for copyright protection in sound recordings. Sound recordings are defined in the law as ‘works that result from the fixation of a series of musical, spoken, or other sounds, but not including the sounds accompanying a motion picture or other audiovisual work.’ Common examples include recordings of music, drama, or lectures.”
    Maybe your “expert” should take a class on how to use google, since using Westlaw or Lexis is apparently way beyond his skill set.

    Reply
    • June 20, 2014 at 8:44 am
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      Nonyo, maybe you should learn to read before you get all critical. Will everyone agrees that Google is the ultimate in references for all things legal, if you had simply read what you yourself quoted, you might have figured out that simply recording a conversation in different from recording a created work such as music, drama, or a lecture. What is in question here is a conversation, not a created work. If Hiliary had been singing an aria or reading from her immortal work, It Takes a Village, the recording would be copyrighted. But since this was just a normal conversation with her laughing about she got a child rapist off the hook on a technicality… probably an average, everyday conversation for her…. the recording is public domain.

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    • June 20, 2014 at 8:47 am
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      @NB: I believe you are incorrect. That is because you have confused *the particular recordings under discussion* with *recordings generally.* Copyright might attach to a recording of someone singing or rapping, because that is a creative work. Copyright would not attach to a recording of an interview, because just answering questions in an interview is not a creative work in this sense. You have misunderstood the Copyright Office rules that you provide.

      Reply
  • June 22, 2014 at 9:12 am
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    Thank you Nic and Caleb for a fantastic article!!!!!!! It was well written and very informative.
    Tim

    Reply
  • June 25, 2014 at 11:52 am
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    Let us also not forget that in order to enforce a copyright on any work, you must also first register a copyright for that work with the copyright office (as the holder of several copyrights, I can tell you that they are not enforceable until they are registered). If you don’t register it (including paying the fee), you have no enforcement ability. Somehow I doubt that they registered the recording of this conversation.

    Reply
  • July 15, 2014 at 11:21 am
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    Hey, is my prior comment still “awaiting moderation”?

    Reply

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