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
Mespo, cyber bullying has repercussions, those who are too cowardly to abuse under their own name risk being outed and retaliated against. Action / reaction, it’s natural law.
criticism is not bullying. The comments are childish and in some cases ridiculous. They undermine any criticism to which they may be attached; however, Criticism should not be the basis of an ethics complaint. Neither should being an adolescent fool. If that were so, there would be few members of the bar left.
annieofwi:
Nowhere in the Feminist Manifesto does it accord females the right to be selfish and disregard everything they have learned about the First Amendment. “Standing up” doesn’t mean tracking down, violating anonymity, and then trying to exact revenge by public or professional censure. “Strong” doesn’t connote whiny or boastful or anything besides putting on your pants (or dress as the case may be) and moving forward and not proving by your childish actions that you are in fact “hysterical, thin skinned, too sexy, a harridan, and conceited.”
Annieofwi, what’s your opinion on Leong’s article: The Open Road and the Traffic Stop? Surely as a strong woman, you can understand that such an article deserves no place in legal scholarship.
I also posted about this issue today with more details for setting the record straight — especially Leong’s distraction technique of pretending that this bar complaint is about Girl Power and not her bruised ego:
http://outsidethelawschoolscam.blogspot.com/2014/01/nancy-leong-entitlement-privilege-and.html
Strong women, beware. If you stand up for yourselves you will be branded. You may be painted as hysterical, thin skinned, too sexy, a harridan, and conceited.
Sigh.
Laser, you are correct, it is precisely about rights! He is fully entitled to make these comments without legal repercussions. But he made these statements in a public place, hiding behind the presumption of anonymity. There would be no question that he should be sanctioned had he openly spoken something like this on radio or television. I see no reason why we should hold him to any lesser accountability or contempt when he voluntarily makes his private thoughts public, simply because he presumed he would remain anonymous.
“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.”
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My read: Smart, cute, immature — and by her over-reaction proving just about everything her critic says about her to be at least plausible, if not true. Needs some seasoning and a skin thickener. Maybe a lesson in humility, too, judging by the statement written above. Funny how the kind of stuff written above always sounds better coming from other people.
RA;
I concur in the sense that this is not a “cut & dry” case (as implied). Free speech is permitted; and yelling “FIRE” in a theatre has consequences.
The lawn 1/2 mowed – is what keeps legal eagles – employed!
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MASkeptic;
Apples to orange compares aside; we are arguing “rights” here and this case is just as good a platform to ferret out the logic as any other.
So people dream of being flashed; that doesn’t mean it is okay to do so!
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annieofwi;
Concur – almost entirely!
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Hey AY;
Normally, I’m so deprived of good faith banter and/or thoughts; I’d bug you earnestly, for the specifics. But this past week, we had over 1 million web views on the case and over 100,000 FB likes/shares. (and more stories are on the way).
Unfortunately (today) my pursuits for qualitative attention, to (in turn) gather quantitative discussion and thereby compel justice; may have cost a good faith camera man his job of several years.
That sucks.
In the meantime, if you’d care to elaborate further, I’m still curious (laser dot haas @ yahoo).
Hope all is well with you and yours in 2014!
http://www.addictinginfo.org/2014/01/02/romney-facing-racketeering-lawsuit/
Creatures like this Leong shouldn’t be allowed to be attorneys, professors, or anything else that places them in position of authority. Nor should anyone give them the hand-out of allowing them “standing” to make a complaint about anything.
Of course, the Feminists and others who make their living or feelings of worth will decry my comment…but they fall into the category of those not having the standing to be heard.
When I was young there was a kid in the neighborhood we called confusus. He was always saying smart sounding things that most of the time we never understood.
One of his most used wisdoms was “I’m rubber and your glue, whatever you say bounces off me and lands on you”. Everytime our gang tried to insult him, he would say this and smile. This really bugged us and eventually we stopped. We decided we were not glue and Confusus was not rubber. Surprisingly we all got along better when we stopped trying to insult him. If this lawyer had hung out in our neighborhood he’d be a better adult today.
Ugly stupid senseless words have a tendency to stick to the speakers skin and clothe them in ugly.
Those who are have professions in which the public places trust in them, should be held to higher standards. If they violate the standards they have sworn or pledged to uphold they should be liable for the repercussions of their actions. This goes especially for healthcare providers, lawyers, law enforcement officers, investigators, public officials, etc.
Free speech sometimes is tricky.
Maskeptic, Carlos Danger answers “YES” to your question.
“It was an anonymous forum and respect vulgar my free speech.” is the internet equievelant of wearing a trenchcoat and wig and expecting not to get arrested for mastrubating in public. Just my 2 cents there as an anonymous interwebber on a legal blog.
Ladies and Gentlemen;
There are MANY points being missed here.
1st of all – each and every one of U.S. should make a declare of – whether or not – one is involved in the legal profession.
Bias is as bias does.
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2ndly – does the mens rea of this particular case matter.
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Next, the InterNet (believe it or not) is still in its infancy. There are going to be many (Very MANY) changes in the Codes & Rules of Law as pertains to such.
If you are blessed (as I am not; but trying harder to get better at such) – at having a “thick” skin in the online realm; such does not give you the right to be over critical of those who aren’t.
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While I dream of the day that eToys.com is returned to me; and I can pursue the premise of doing biz a whole new way (where people don’t have to drive to “the office”) – as a virtual office is created and pay is “task based” instead of hourly (freeing people up to work 3 jobs at once). The fact of the matter remains that our web worlds are going to go through many idiosyncratic (based on sovereign issues) and ubiquitous world wide treatises (akin to ICANN).
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Finally:
Though (presently) there aren’t Professional Code of Conduct Rules concerning web based banter; to scoff at the idea of such materializing is ill conceived logic.
Cyber crimes exist.
Bullying by Cyber is established as culpable/accountable dynamics.
Our POTUS was elected by social networking.
There are many more complexities/issues to consider, than that of counsels simply circling their wagons in a “blue wall of silence” defensive; in order to justify bad form (possibly bad faith) behavior as an inalienable civil right.
If this were your wife, mom, daughter and/or sister being abused so;
would your thick skin be so paramount?
I would have preferred that she do the complaint on someone else’s behalf.
Even then, I have to agree with JT that this is not something for policing in officialdom.
She should have done like JT and made a civility rule, given a warning, deleted maladjusted comments.
If the commenter did not get the message, well there is banning.
RA, precisely.
Ken Kratz, Calumet County DA and sexting.
I do not know which state is involved here, but I will tell you my experience joining the Virginia bar. Every new member of the bar is required to take a one day seminar on civility, and the need to treat fellow members of the bar, and the public, with respect. It is pointed out that lawyers are supposed to be held to a higher standard than members of the public.
Dybbuk’s comments fell short of such a civility standard; yet even there Leong treated him with enough respect to reach out to him and try to talk it out. Dybbuk not only refused to talk with her, but accused her on his blog of being a crazy stalker for trying to contact another member of the bar and work out their differences. In these circumstances, I have absolutely no problem with someone filing a bar complaint. I doubt the bar is going to take dybbuk’s license away, but it would seem appropriate for them to have him attend a remedial civility class or two.
I would have no problem if she outed him, either.
Raff,
This seems to be a waste of the discipline boards time…. But if she is so fair skinned maybe she should go to work for the DOJ…. They bury its detractos…..
Laser,
Morning to you…. I had some fairly good words to say about you today….
Firstly, one of the more shocking things to me is the alleged sexist, racist[Man do those words fly around like super balls] is a public defender. Every, let me repeat a word I seldom use, EVERY, PD I have known was quite liberal. I didn’t think liberals engaged in this type behavior. And, while this mat be sexist, I don’t care..va va voom, she is drop dead gorgeous. She should be making big bucks doing trial work!