Slack v. Stream

• Decision Date: 18 January 2008
• Docket Number: 1060007.
• Citation: 988 So.2d 516
• Parties: James SLACK v. Christopher STREAM.
• Court: Alabama Supreme Court

988 So.2d 516

James SLACK v. Christopher STREAM.

1060007.

Supreme Court of Alabama.

January 18, 2008.

Ralph D. Gaines II and David E. Miller, Jr., of Gaines, Wolter & Kinney, P.C., Birmingham, for appellant.

Susan Williams Reeves of Reeves Law Offices, Birmingham; and Stephen D. Heninger of Heninger Garrison Davis, LLC, Birmingham, for appellee.

COBB, Chief Justice.

James Slack, the defendant in an action in the Jefferson Circuit Court alleging against Slack defamation, invasion of privacy, and intentional interference with a business contract, appeals from a judgment in favor of Christopher Stream, the plaintiff. We affirm.

I. Factual Background and Procedural History

The testimony at trial reveals the following facts. In the fall of 2002, Stream accepted an appointment as assistant professor in the Department of Government at the University of Alabama at Birmingham ("UAB").

During the summer of 2003, the Young Men's Business Club of Birmingham invited Stream to speak about Amendment One, a proposed constitutional amendment placed on the ballot in a 2003 special election that would have significantly restructured the sources of revenue for Alabama. Stream asked his graduate assistant, Vladimir Shilkrot, to assist him in finding newspaper articles concerning Amendment One. Stream used these newspaper articles, as well as other articles and research he had compiled, to compose his notes for the speech.

Soon after Stream presented the speech, Michael Howell-Moroney, also an assistant professor of government at UAB, approached Stream about coauthoring an article regarding Amendment One for submission to a scholarly journal. The article, Evidence of Public Regardingness: Doing the Right Thing in the Alabama Tax Vote? was submitted to the Journal of Politics ("the JOP"). On December 17, 2003, William G. Jacoby, the editor of the JOP, e-mailed Stream, informing him that the article was being rejected for publication based on the reviews of two referees.¹ In his e-mail, Jacoby referenced issues raised by the two referees such as "the sizable literature of self-interest effects" that were not referenced in the article, the model specification, and the use of aggregate data to test hypotheses about individual behavior. Jacoby, however, encouraged Stream and Howell-Moroney to revise their article using the referee's critiques and to submit the article to a more subject-focused journal.

Attached to Jacoby's e-mail were the comments from the two referees, designated as "reviewer 1" and "reviewer 2." Although the reviewer's comments concerning the alleged plagiarism were not specifically referenced in Jacoby's e-mail, reviewer 1 stated in his comments:

"The quality of writing is also problematic, in that I found several instances of plagiarism in the manuscript with fairly modest effort (I suspect there are many more cases in the paper as well). This is completely unacceptable for a manuscript submitted for publication. If one of my students had turned in this paper to me, he or she would have faced serious penalties in the university's honor court."

(Emphasis in original.) Reviewer 1 quoted three sources he found had been plagiarized: an Associated Press article by Phillip Rawls, an article by Thomas Spencer, and an article from the Clarke County Democrat, a local newspaper in Grove Hill.

Stream forwarded Jacoby's e-mail to Howell-Moroney on the same day he received it. After reading the comments of reviewer 1, Howell-Moroney telephoned Stream and learned that Stream had not read the reviewers' comments. Upon learning that one of the reviewers had found incidences of plagiarism in the article, Stream testified that he was "stunned," "embarrassed," and "ashamed." Stream claims that during the conversation with Howell-Moroney, while thinking aloud he stated that he wondered if the plagiarized material could have come from materials provided by Shilkrot. That evening, Stream e-mailed Howell-Moroney apologizing for his "laziness." In the e-mail, Stream wrote: "It's no excuse, but I've had several career decisions to make this semester and the stress has gotten to me. I had hoped to ease my stress by taking advantage of my grad assistant, but that's no excuse. It was still my responsibility to check what he had given me." Howell-Moroney responded to Stream's e-mail, writing: "I appreciate your apology, but don't hassle it. Let's just tighten that puppy up and send it back out."²

By the 2003-2004 academic year, Stream had become dissatisfied at UAB and decided to look for other employment. On January 26, 2004, the University of Nevada, Las Vegas ("UNLV"), extended an offer to Stream to become assistant professor in its Department of Public Administration, and Stream accepted UNLV's offer on January 30, 2004, to begin teaching there in the summer of 2004. Howell-Moroney learned on or about February 16, 2004, of Stream's planned departure from UAB and decided at that time that he would inform Slack of reviewer 1's findings of plagiarism. According to Howell-Moroney, he decided to inform Slack of reviewer 1's findings because he believed that he could be accused of plagiarism if it was ever disclosed that the reviewer found incidences of plagiarism in the manuscript. Upon learning of reviewer 1's finding of plagiarism, Slack asked for and received a copy of the e-mail from Jacoby and a copy of the manuscript.

After reviewing the manuscript, Jacoby's e-mail to Stream, and the reviewers' comments, Slack reviewed the university handbook, but he was unable to find a policy or procedure dealing with plagiarism by a member of the faculty. According to Slack, he met with Tennant McWilliams, dean of UAB's School of Social and Behavioral Sciences,³ before March 1, 2004, regarding the plagiarism incident, and Dean McWilliams did not disclose to him during that meeting that a policy existed concerning plagiarism by a faculty member. Dean McWilliams, however, does not recall such a meeting. Purportedly unable to find a policy regarding plagiarism by a faculty member, Slack conducted research on the Internet and found, among other items, a "Statement on Plagiarism" approved by the American Association of University Professors. The "Statement on Plagiarism" stated, in part:

"Any discovery of suspected plagiarism should be brought at once to the attention of the affected parties and, as appropriate, to the profession at large through proper and effective channels — typically through reviews in or communications to relevant scholarly journals."

Slack contacted Jacoby and had tenured professors in the Department of Government review the manuscript. Slack also telephoned Shilkrot because Howell-Moroney had stated that Stream mentioned Shilkrot and because Shilkrot was referenced in the e-mail exchange between Howell-Moroney and Stream. In an e-mail from Shilkrot to Slack following their telephone conversation, Shilkrot said that he had summarized for Stream five articles for a political science publication that had been submitted to Stream for peer review as a time-saving measure for Stream.

On March 17, 2004, Slack called Stream into his office and asked Stream if he was "associated" with a claim of plagiarism. Stream responded that he was not. Slack then asked Stream if he had submitted a manuscript to the JOP that had been rejected because of plagiarism. Stream responded that he and Howell-Moroney had submitted an article to the JOP and that the article had been rejected but that it had not been rejected for plagiarism. Stream alleges that he ended the conversation with Slack so he could discuss the matter with Howell-Moroney to "put things in context."

On March 17, 2004, in response to numerous requests from Slack, Jacoby sent Slack a memorandum explaining that, besides the issues mentioned in Jacoby's e-mail to Stream of December 17, 2003, Stream and Howell-Moroney's manuscript "probably would have been rejected anyway" because of the plagiarism found by reviewer 1.

On March 18, 2004, Slack wrote the following letter to Stream:

"This letter serves as a REPRIMAND for UNETHICAL SCHOLARLY BEHAVIOR.

"(1) During Fall Semester 2003, you and a co-author submitted a manuscript, entitled `Evidence of Public Regardingness: Doing the Right Thing in the Alabama Tax Vote,' to the Journal of Politics (JOP manuscript 111803A).

"(2) During Fall Semester 2003, you received a copy of the reviewers' comments on the paper.

"(3) Reviewer number 1 ... states:

"`The quality of writing is also problematic, in that I found several instances of plagiarism in the manuscript with fairly modest effort (I suspect there are many more cases in the paper as well). This is completely unacceptable for a manuscript submitted for publication. If one of my students had turned in this paper to me, he or she would have faced serious penalties in the university's honor court.'

"(4) Reviewer number 1 provides three examples of plagiarism....

"(5) According to the co-author, you admitted that the plagiarization occurred in the manuscript sections for which you had writing responsibility.

"(6) The co-authored [sic] provides a 17 December 2003 e-mail ... from you to verify that you took responsibility for the plagiarized sections of the manuscript.

"(7) In the 17 December 2003 e-mail, you place blame for the plagiarism on your MPA graduate assistant.

"(8) However, in a 25 February e-mail ..., the MPA graduate assistant asserts the following:

"• That you instructed the graduate assistant to collect summaries for the manuscript.

"• That you did not make him aware, nor get his permission for quoting his own intellectual property verbatim in your manuscript.

"• (As a relevant aside, the graduate assistant also asserts that you instructed him to read and summarize five (5) manuscripts sent to you by a reputable scholarly journal(s) seeking your expert opinion and not the opinion of someone with a bachelor's degree, in this case, the MPA graduate...