There is a free speech controversy swirling around an ethics complaint in Illinois brought by University of Denver law professor Nancy Leong. Leong runs a blog site called Feminist Law Professors and recently discovered the identity of an anonymous commenter who has, according to Leong, left racist and sexist comments. She says that he is a a public defender in his late 40s and she wants him punished for his comments. We have discussed the free speech rights of public employees in an earlier column and blog postings, including the right to speak on blogs and Internet sites. The actions of Leong are troubling for those of us who believe strongly in free speech values, including the right to anonymity.

The poster used “dybbuk” in posts that referenced Leong. In one post, he talks about a 28-year-old law grad and wrote “I think she has the right age, gender, credentials, and eager-to-please attitude for an ‘odd job’ I have in mind . . . Basically it involves the girl dressing up as a law professor, bending over, and trying to ask me questions about International Shoe while I spank her with a wet slipper.” He also criticized Leong, including her presentation in Hawaii on “racial capitalism,” stating “Now that is what I call a gravy train or, shall I say, a luau train. Law professors enjoying a free Hawaii vacation at some seaside hotel. All they have to do is attend some ‘annual meeting’ of some ‘society’ where they pretend to listen to Leong yap about ‘pragmatic approach[es] of reactive commodification,’ while undressing her with their eyes.”

Leong found dozens of references about her on five different websites as part of her investigation, including disparaging her scholarship and describing her as “a comely young narcissist” and a “law professor hottie.” She also said that other professors that he criticized on these various sites were overwhelmingly directed at women and professors of color. She considers anonymous postings with sexist elements to be unethical. She writes in the complaint that “There are over 6,000 tenured and tenure-track law professors in the United States have less practice experience than I do. Most of them have weaker publishing records than I do. Most of them have weaker teaching evaluations than I do. Almost all of them have been members of the legal academy longer than I have. Almost all of them have more power and prominence than I do. In light of these facts, it is difficult to think of a reasonable explanation for [dybbuk’s] obsessive attention to an untenured professor.”

That does not sound like the basis of an ethics complaint. I am highly sympathetic to Leong because I have long been amazed how anonymity unleashes the both base and juvenile instincts in some people. Many posters are consumed by jealously and prejudice — venting these feelings in a way that would never be tolerated in many public or employment settings. They often seem personify their anger in their own lives or careers against those who take on public causes or positions. It is a sad statement of our species and something that has led many blogs to ban either anonymous postings or all comments from their sites.

I can certainly understand Leong’s desire to set matters straight, though I have had far worse comments directed my way as a newspaper columnist and a television commentator. I rarely if ever respond or even correct false statements on my background. As many know, this blog enforces a civility rule while working hard to avoid banning individuals in light of our free speech principles. We also recognize the right of anonymity. When you write for a newspaper or a blog, you willingly become a public figure — a role that comes with both good and bad speech direct at you by others. One of the few exchanges that I have had with a critic was not over the content of criticism but the tenor. Some of you may recall that a few year ago I had an interesting exchange with another legal blog where the host expressly rejected civility on her site or other sites. I continue to believe that people, especially lawyers, carry a responsibility to engage in respectful and civil dialogue. All of us will have relapses, but most of us were raised to show such respect in dealings with others, even those with whom we disagree. Clearly Leong is dealing with someone who long ago abandoned such restraints, but that does not mean that his speech should be the subject of discipline by a bar.

In my view, the criticism of Leong’s writings or experience falls squarely under protected speech. Ironically, she has an impressive publication and academic record that speaks for itself without the need for extrinsic disciplinary mechanisms. Moreover, as an anonymous filing, these are postings that do not reflect on this man’s employer. Underlying the complaint seems to be a view that sexist or racist statements made as an anonymous person would still constitute a violation. We have discussed in many blogs and columns and (here) how non-discrimination laws have increasingly collided with free speech principles.

In a blog posting, Leong speaks about investigating harassers. She says that she tracked down her critic to confront him:

To my regret, my harasser refused to speak to me. I called him at his office (once) and left a message with the person (not him) who picked up the phone simply leaving my name and number and asking him to call me. He didn’t call back. A few days later I emailed him (once), explaining that I had identified him and that I wished to discuss his Internet posting activities. The email was difficult to write. It triggered emotions relating to an experience confronting a person who abused me many years ago. I did my best to keep the email polite and professional and–to the extent I could–I tried to express some sympathy for circumstances in his life of which I might not be aware.

It clearly did not work and Leong proceeded to file a formal complaint. That is where I have to respectfully disagree with Professor Leong. The effort to punish this poster threatens free speech and creates a chilling message for those who wish to engage in discussions on an anonymous basis. I know that that is not her purpose but she is attempting to discipline a person for criticizing her and engaging in language that she finds offensive. That is anathema for most civil libertarians even though most of us find these writings to be offensive and insulting. As academics, we owe a special duty to free speech and the need to preserve protected spaces for such speech on campus and the Internet. This is precisely why it was so alarming to see Jewish students recently seek to strip anonymity for posters of material that they find objectionable. Free speech comes at a cost, particularly for those who become public figures. The Internet is rife with hateful and false statements. However, it is also the single greatest advance in free speech in history. I am confident that the work of Professor Leong will be remembered long after dybbuk has passed into well-deserved obscurity. However, this should not be part of that legacy.

I understand from personal experience the anger and frustration of having trolls and critics write false or vicious things about you. Yet, Professor Leong should withdraw this complaint. If not, it should be denied by the Commission as intruding into free speech areas, in my opinion.

What do you think?

Source: ABA Journal