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
rafflaw;
Just making a point.
What was your “gut” reaction to the – less than considerate banter?
I am normally *almost* as strong on free speech as Prof Turley. However, false or intentionally misleading accusations (I won’t say defamatory without more specific information) from one lawyer against another are not (and should not be) immune from discipline. We expect more from lawyers, including not publicly defaming another lawyer or promoting sexual and racial harassment. As you note, Prof Leong is not filing a criminal charge, or even a civil action. Rather, she is asserting that it is professional misconduct for a lawyer to engage in false accusations against another lawyer, and suggesting sexual misconduct toward another law graduate (it is unclear from your blog whether she is a licensed lawyer as well). Many jurisdictions have “civility codes” under which lawyers can be disciplined for statements and conduct not actionable civilly or criminally. While some of the codes are too vague and broad for my taste, there is a point where conduct by a lawyer toward another lawyer is so far over the line, and so unjustified under any leeway afforded to free speech, that it is entirely proper to discipline that lawyer. It is not a stretch to believe that a lawyer who would engage in such improper and discriminatory conduct toward women and minorities, would do so (albeit in less public and obvious ways) while representing indigent women and minorities as a public defender.
Laser,
you are welcome.
As I see it, from my vantage point of the side of the river that runs through it, a blog is like a sewer. All things solid and liquid get put into it and the sewer runs into the river and the river runs out to sea. As it floats by, an item might offend. But in time it floats out to sea. Civility should be practiced on a blog. The perp who is making fun of Leong should be run out to sea on a barrel. But, forget the law bar and all that. Because the defendant at the bar forum will post the photos which Leong put up for the sewer of Google for all to see and then ask if he is being sexist for saying she is hot to trot. If ya know what I mean, jelly bean.
Me thinks this professor has a thin skin. If she doesn’t like what she is reading on her blog, maybe she should get out of the blog business. Just how far did she go in “investigating” her commenter?
How dare Leong post sexy pictures of herself, I guess that means she’s asking for it, hmmm?
For this issue, I’m perplexed; having been the subject of much bad faith banter.
Without a full trial upon the merits (where both sides get to present their case – IN FULL); I’m going to disagree with our esteemed Professor.
In this country, free speech is a civil right.
So is the right to redress grievances!
There are issues of the Bar and Professionalism; and the Professor knows that your BAR Card Oath and Rules of Conduct are not cavalier matters of Professional Responsibility.
If you are going to walk, play and get paid higher than the trodden crowd; you must also adhere to different set of standards.
Hence, the court is the proper place to address the issues in this case; and the presiding justice will have the proper authority to put any/all parts of the legal arguments/arguing – Under SEAL!
However;
that being said – I would also stipulate that one has the right to maintain their anonymity in certain situations;
but I hardly think an attorney at law publicly making sexists slams – is such!
Jill, thanks for posting a link to that article. Women have been disproportionately targeted online for abuse, it’s sickening.
I am not sure we need to see the painting of George the slave holder addressing the crowd— every single day. Maybe a photo of a painting of Ben Franklin.
This Leong lady reminds me of people in towns who insist on having leash laws. The dogpac is thinking about moving to Oriental, NC because they don’t have leash laws. Having a blog and inviting speech is like having a food pantry and inviting the peasants. If you don’t like the peasants get outta the food pantry.
I googled Leone and they put up all these photos of her. Some are supposed to be sexy. Which, if she release those photos, she is a hypocrite. Or in FL we say hypocritter.
It sounds like rude and inconsiderate comments were made. But I fail to see how those comments relate to the duties or ethical obligations of an attorney.
We have standards that regulate speech such as slander. When the situation does not involve the attorneys behavior toward a client or the court why should attorneys be held to a higher standard than ordinary citizens?
http://www.psmag.com/navigation/health-and-behavior/women-arent-welcome-internet-72170/
“Ignore the barrage of violent threats and harassing messages that confront you online every day.” That’s what women are told. But these relentless messages are an assault on women’s careers, their psychological bandwidth, and their freedom to live online. We have been thinking about Internet harassment all wrong.”
Free speech is paramount. However, along with all freedoms it comes with responsibility and accountability. The blogger who seems bent on harassing Leong should be unmasked and have his name and position attached to his words. If he can address someone in this manner, mentioning her name and position, that someone should be addressed in a like manner.
If you cant stand the heat, get outta the kitchen. So sayeth JackMehoff and a lot of other commenters who speak with anonymity or however ya spull it and make fun of those who itShay don’t stink. Jack is right here but he wont chime in because he thinks that Sierra Leone needs to be let alone. Those who can: do. Those who can’t practice law: teach law. Those who teach law: blog. Those who blog law teachers: teach em.
I agree with Steve Fleischer. He is barkin up the right tree.
I can relate to her. I think that cyber bullying is probably one of the most cowardly things a person can engage in, but yes they have a free speech right. Eventually their victims will find out who they are and then they also have a free speech right, so it goes, round and round.
When comments are anonymous, everyone needs to consider the source. During my life in academia and as an elected public official, I never responded to unpleasant, hyper-ventilating criticism. No point in giving them legitimacy. Especially from (as a friend called it) comments by A Nonny Moose.
Political correctness has created “protected” classes eg women, people of color, etc.
It has also created “free game” classes – white men, rednecks, southern males, conservatives, etc.
When a member of a “protected” class demands disbarment as punishment for unwelcome comments I suspect that we are seeing retaliation rather than justice.
Free speech is fine…as long as it doesn’t become too free. That’s always the message from people who hold a position of authority and respect, perceived or otherwise.
I agree with you 100%. Great post!
Really.