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
hsk, Good to see you back in the rotation.
Philip S. Zivnuska:
“Slander and/or libel based upon sexist predjudice is unethical.”
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That’s fine as far as it goes like most bumper sticker analysis, but the question is should the anon. poster be disciplined for his remarks. Spitting on a crowded sidewalk is likewise unethical. Should a lawyer be suspended for that too? What if he was a misogynist lawyer who did nothing more than spit when he knew a group of women would be happening by later? Off with his head?
The question is did the unethical conduct bear on his fitness to represent his clients? In this case, I don’t see how. The Bar is not a nanny.
Profound insight Nick;
Most “attorney’s at law” are disciplined enough to refrain from making any remarks on the open realm. Like the Hollywood Rule that Joe Pesci violated (and halted his stellar rise); most counsels are aware todays remark on behalf of one client – may well cost you dozens to the contrary position in the future.
Yours truly – too – suffers from breaking the “norm” rule; going by name (instead of moniker quaint). As my chosen “real” moniker (like others chose AJ instead of Andrew – or Dick instead of Richard) – is outside the norm as well, the slings & arrows of the petty/snide are often and hurtful.
We are, in this modern day of social networking – What we Network Socially!
Judges can surely spank counsel for being anonymously critical of a ruling vis-a-vis any forum. Especially that of a public realm.
Hence, everything else is ‘case specific’!
What others think of you is none of your business.
Nancy Leong is acting like a woman… emotional. [Ooops, did I just say that out loud?]
Seriously, though, she is way off base to go after this guy like this. I agree with civil discourse. I have mixed feelings about anonymous posting.
If anonymity is being used to allow someone to criticize policy through rational speaking without owning the speech, fine, but if anonymity is being used as a cloak to be uncivil, to defame and slander people, then I don’t agree with it.
Leong should not go to the bar about the problem, and even if she does, the bar should do nothing. It is protected speech.
I respectfully disagree that this is a 1st amendment issue — it is one of professional ethics. For the privilege if earning one’s living as a licensed attorney, one agrees to abide by the licensing authority’s imposed code of conduct. One is bound to comply regardless whether one agrees with all of the particulars — failure to do so is a basis for a grievance. I’m not saying that in this instance a violation of the rules of ethics occurred, only that an anonymous breach is still a breach and still punishable if the identity is discovered.
So, the issue may well become whether application of “the licensing authority’s imposed code of conduct” is unconstitutional?
But i think a grievance, even if well-founded, is a mistake. One ought’n feed a troll, especially with a super-sized meal
Buck up and stop being a bunch of wussies. With all that said and done, kick him of the blog and be done with it. You shouldn’t be able to sue or disbar someone for being an a**h*le. The blog master should have the right to kick anyone off the site.
Now a Prosecutor, Judge or Attorney is a court room; that’s a different issue and one we she be really talking about.
When I first started getting involved w/ blogs I just read. I think many folks are similar. I noticed the people who commented w/ their full names were, for the most part, less negative and rude than those w/ monikers. I then thought about my profession. I routinely dealt w/ anonymous sources, some reliable, many not. With an anonymous source, the first thing you have to determine is what motivates this anonymous source. Is it anger, jealousy, greed, etc. In rare instances it is righteous. They see a neighbor, co-worker, even family member committing fraud and they are outraged. Now, it’s never clear cut. Their motivation may be righteous but there’s almost always some dislike of the person on whom they’re snitching. If it were a surveillance, I would try and get the source to identify themselves so I could contact them. Often times, I got to know who they were via investigation, but you don’t tell them that, you lose them if you do. An upfront source is almost always more reliable than an anonymous one. That shouldn’t surprise anyone
Using that experience, when I first started commenting on blogs I used my full name. I gave identifying information about myself. An open book. And, once I gave out my name and identifying information, I knew, better than most, that there is MUCH information someone could find on the internet about me. The genie is out of the bottle, and she ain’t going back in. The fact that so many people don’t understand, refuse, or are unwilling, to accept this very basic fact, astounds me.
Well said Philip.
I have followed this story a bit through LGM. This is not an issue of harassment vs. First Amendment, so much is as a story of a law professor making a fraudulent claim of harassment because she is upset about criticism of her substandard scholarship.
Leong’s ethics complaint asserts that dybbuk make 70 comments about her. He claims 25.
Leong claims that dybbuk wrote a play depicting Leong taking illegal drugs. But dybbuk’s short fictional vignette portrays two male law students taking drugs.
http://outsidethelawschoolscam.blogspot.com/2013/10/the-law-school-scam-is-like-highway-to_25.html
Leong claims that dybbuk’s cruel use of the word comely constitutes “sexualized” commentary that made her fear for her safety. But Leong contacted dybbuk by phone and email, not the other way around.
http://outsidethelawschoolscam.blogspot.com/2013/11/ego-and-exploitation-response-to-law.html
Slander and/or libel based upon sexist predjudice is unethical.
janolan:
“Of course that won’t work either because this females supporters want “equality” but with different standards applied based upon gender and race.”
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While we almost always disagree fundamentally, in this small space we don’t entirely. “All men are created equal” was never a literal statement of reality even to Jefferson. Natural equality is a canard since differences in intellect, physical strength, and other abilities make it as such. Absolute equality does not exist in nature or anywhere else. It exists only before the law because we deem it so and we so deem it by way of the Constitution. That means the “equality” is subject to the law even the part about having to deal with comments we don’t like to preserve the comments we do.
annieofwi:
Natural law is survival of the fittest and no one is advocating ignoring real threats of harm. What we’re saying is that this professor is using an arm of the state government to silence a crude critic. That’s unconstitutional,un-American, and downright mean-spirited. She’s a lawyer and an adult and she should act like it when dealing with childish remarks. After all, she knows better. She taught at William & Mary and last time I looked she had to walk by a statue of merely one of the school’s most famous students, Thomas Jefferson, every day to teach her Constitutional Law class.
Laser’ing in on the target issues
“IF” the PD protected his anonymity in ironclad fashion; then there “may” be a cause of action for the breach of such.
Be that as it may – that is a “counter” point/cause of action and has nothing to do with the primary issues at hand. For, as I’m able to discern (thus far) from the banter; is that one’s BAR Card should not be at risk for comments in the internet realm and/or any disciplinary reprecussions as a violation of the Professional Codes of Conduct.
As for the banter on what the plaintiff is, was or does otherwise – is immaterial.
Unless – of course – she is the wanton, desire to be sexually exploited hussy that the PD (purportedly anonymously) portrays her to be.
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As in “waiver” of A/C privilege, if plaintiff was able to ferret the identity out by the bad faith party’s disclosing such to another (other than an attorney at law)
then he has NO claims of anonymity!
N’est-ce pas!
Mespo,
That’d be too difficult for most to do. It’s beyond them. Simpler is to use one of their “tests.”
Simply have them picture the same “abuse” coming from a woman or a racial minority (she mentioned racism (no suprise)) towards a White man and see if they’d support HIM trying to get the “abuser” reprimanded or disbarred.
Of course that won’t work either because this females supporters want “equality” but with different standards applied based upon gender and race.
Please forgive my typos. I should have proofread my entire preceeding comment before posting.
VaBar Member:
“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.”
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You might want to take that con law part over again or maybe just read some good old Virginia history. You would also do well to recall that if Patrick Henry took the civility seminar before he passed the Virginia bar, he might well have stood up at St.John’s Church and declared “Give me liberty, or give me a pen to write a firm but polite letter to Geo. III.”
Civility can be a bludgeon for power in striking down dissent. That’s why we have a First Amendment with not word one about “civility.” We’re a revolutionary government –or haven’t you heard — and it was the court of Geo. III who had the monopoly on “civility,” my dear chap.
I mostly agree with the approach of the post, however I believe when someone post of a public web site, they are taking some risk their identity might the exposed by a person with enough motivation. I think this risk increases the more volatile their remarks. While I hope we receive reasonable enforcement of anonymity in those circumstance, I do not see it as absolute. For instance, if a web site or blog promises anonymity, that expectation should be enforced, however if a person with ingenuity can discern an identity by searching for someone’s anonymous moniker elsewhere, or other references, that might be prerogative.
The question then turn to what to do with the identity. In the case where a person is in public service, or in a position to harm people or their rights in the professional position they occupy, and they have or likely have contact with people whom they clearly exhibit perforative sentiment or hate towards, then the question becomes more complicated.
For simplicity, one might take the example of yelling Fire! in a crowded theatre when there is none. Free speech is not absolute, and one test is when it might create physical harm to others (whether in a medical context, violence or someone facing incarceration.) One might consider commenters anonymity falls into a similar context with this example in mind. If a prosecutor who has exhibited certain negative predispositions in personal comments might be reasonbly expected to use his professional power to incarcerate or overcharge someone or a group that he has exhibited animus or bigotry toward, a defense attorney who might be expected to fail to provide his best efforts to represent his client, or a medical doctor who due to their comments is reasonably feared to not properly treat a patient, then we are in territory where the free speech right might be justified to be eclipsed.
I’d like to add my concern that more and more newspaper sites and other news and discussion sources are requiring users to use their Facebook, Google+, LinkedIn and other public identifies, and forgo any ability for direct sign up for anonymity at all. While it is possible to create a false identity on these services, I purposely do not participate in those forums, because I think it is a negative and unthoughtful policy relating to the greater idea of perfecting and maintaining free speech in our society. I highly appreciate the ability to use anonymity, when I wish, and for certain do not want every comment I make exposed to everyone in my circle of relationships, or beyond, with many good reasons.
Justice Holmes;
If you equate sexist (disdainful) banter condescending of another – as mere criticism;
then you need to go back to school!
annieofwi,
Given your presumed – based solely upon your weighing in on this in the manner that you have – definition of “Strong women” and “standing up for yourself,” Yes! They’re very rightly be labeled as: hysterical, thin skinned, too sexy, a harridan, and conceited.
This is because your definition more accurately equates to weak and in need of special protections. mostly from men.
Tell you what – ameliorate your attitude and tone and you just might be able to get yourself a man to provide that protection. That’s our proper role in the world after all.
Or…Act like a man more perfectly instead of trying to take from the best of both gender roles while carefully avoiding the worst of them. 😆