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
LaserDLiquidator, I misunderstood your question. I should have said “Quotes from the Professor’s article”. Really, I’m sorry to have given you a non-answer.
This is an important topic, but I sense that the thread has gotten bogged down a bit because we are discussing at least three distinct issues interchangeably.
I prefer to start with what we can all agree upon. The gentleman in question is rude, condescending, juvenile, sexist and unimaginative. He may also have serious issues with anger and misogyny, but we don’t know that yet.
I do not believe that Prof. Leong’s complaint states grounds for bar disciplinary action for the reasons Prof. Turley has already expressed. However, that need not be the end of the inquiry. If the number and content of the comments could be reasonably expected to cause Prof. Leong genuine fear for her safety, there may well be grounds for a criminal investigation under applicable cyber stalking laws. A stalking conviction in turn would provide a basis for bar discipline. And a civil action for trade defamation might also lie, although that would clearly be a tough case on both liability and damages. In any event, the approach taken by Prof. Leong suggests that she could benefit from advice from a disinterested lawyer.
Having said all that, I confess to having mixed feelings about lawyers blogging anonymously. I’m not suggesting that it should, or could, be prohibited. But I believe that professionalism demands that a lawyer use some minimal level of restraint off duty. This guy qualifies as an internet slob at best and a poor excuse for a lawyer.
Spot on once again Professor. I have a feeling this young lady is about to get more criticism than she can handle. Not by me though, she can say or believe whatever she wants as long as we still have a semi-free country. I could see why she would want to shame the guy but as a public defender he probably doesn’t have a lot of shame. This one should get thrown out right away.
Attorneys have free speech rights just like everyone else. If it’s a statement that a lay person could get in trouble for making, so too can a lawyer. If it is one that a lay person would not get in trouble for, then neither can the attorney. You can’t use disciplinary rules to impose additional restrictions on attorneys because of their professional position. I quote from Justice Kennedy’s opinion in Gentile v. Nevada:
“We have not in recent years accepted our colleagues’ apparent theory that the practice of law brings with it comprehensive restrictions, or that we will defer to professional bodies when those restrictions impinge upon First Amendment freedoms.”
Most attorney free speech cases concern criticism of judges. Many state courts have, under the guise of protecting the public, sanctioned attorneys for judicial criticism they consider unfair, inaccurate and/or intemperate in tone. Those decisions fly in the face of several Supreme Court decisions. But even then that dubious justification for limits on attorney free speech isn’t present when you’re talking about criticism by an attorney of another attorney.
Not that discipline of this sort doesn’t happen. An attorney in Florida was hit with a two year suspension for criticizing another attorney in correspondence to him. It’s a case that would have no chance of being upheld if the US Supreme Court accepted cert. It is inevitable that the Supremes will take an attorney free speech case and that the court by about a 9-0 margin will put a stop to these states that insist that attorneys can have their speech limited because they are, well, attorneys.
Finally (at least I hope so for today)
Mr. “dybbuk”s remarks of Oct 18, 2011 – 11:27 pm
is represented to be verbatim
(lacking the requisite proof/link to actual)
——————————————
Question 1 –
How many of you are eager to hire “dybbuk” (even if he is Michael Jordan)?
No 2 –
If the victim of these “anon” assaults were your daughter, mother, sister or some held dear and precious to you; how insignificant would “dybbuk”s comments then be?
Finally;
No 3
You decide to rally the wagons around “dybbuk” and the night before you go to trial, the entire team set out to prove how “inconsequential” the remarks of “dybbuk” are; by the 1/2 dozen others ganging up on the victim – all in their own babbling, banter manner – hurtful, mean and obtuse to the fact that what is really transpiring is that a “coward – behind a pseudo name – is making comments of abuse to someone that he would never dare do face to face” especially in front of yours truly.
Then the whole team sits down in the defense chairs;
while the judge recuses himself.
Because – as His Honor was already prepared to disclose
the gal in question is his adopted daughter!
And your going to sit there and tell me the “behavior” is “inconsequential”.
AND this poor guy, from the wrong side of the tracks;
and chump whom Romney’s gang beat up on (via fed venality)
is suppose to respect anything YOU have to say?
REALLY!
Lottakatz;
You stipulated the following caveat –
and you concluded with “Quotes from article–”
These items are telltale and the “article(s)” in question should’ve been cited.
However, I did the leg work (keyboard work) and found the qualitative banter germane. And (as iterated above) “if” your (lottakatz) [re][in]ferences be “actual”; then “Dybbuk” be in a whole bunch of trouble.
Making remarks – anon or not – in a public forum, concerning professionalism, whilst inferring abuse; could be tantamount to libel & slander. (Even if, arguendo, a defense would be that the female in question is a “public” speaker)
——————————————————————
Here’s a ‘What if’
1 – If the teacher/gal came to your office and said she wanted to hire you to sue “Dybbuk” for “x,y or z” issues; would you be saying hell NO to the retainer dough? (Because you REALLY believed the court would spank you under Rule 11)?!?!?!?!
And – please be silent – if you can’t be totally candid!
NO – 2
You are GC of IBM or AT&T – and this matter is brought to your attention as “if” Mr. “Dybbuk” were saying this about others in your various manage/worker ranks (and/or a competitor) etc.
What would your advice on “risk” – be to your client (the corporate entity) – on exposures?
Silence is golden if candor is banter!
How did the judge find out the name of the anonymous commenter, without breaking any privacy law, herself?
Darren,
From the ABA Journal:
“Leong adds that dybbuk commented about her about 70 times on five different websites, starting several derogatory threads devoted exclusively to her. She tried to call and email him, but there was no reply.
“In Leong’s request for an ethics probe, obtained by the ABA Journal from another source, Leong says dybbuk also wrote two lengthy plays that depicted her using illegal drugs. He wrote posts disparaging her scholarship that described her as “a comely young narcissist” and a “law professor hottie.” He has also disparaged other law professors, she says, and, as far as she knows, nearly every one is either a woman or a person of color or both.
“Leong says in the letter of complaint that dybbuk’s “sexualized comments about my appearance and other disparaging remarks made me concerned for my safety.” She says she was relieved to learn he lived in a different state.”
*****
I wouldn’t dismiss this as just an insult to her ego. Sounds to me as if “dybbuk” may have some serious issues. I’d be pretty upset if someone in my profession did something similar to me. I’d be concerned too.
David: “I don’t think sexism in this case can be proved.” Not if Dubyuk can pint to postings where he argued the professional quals of male peers by objectifying them as sex objects. If he can produce those postings and they predate the complaint them sexism will not be found to be valid. I especially want to read a posting of his wherein he fantasizes about spanking a young, handsome male with a wet slipper, yeah, I want to read those.
lottakatz wrote: “Not if Dubyuk can pint to postings where he argued the professional quals of male peers by objectifying them as sex objects.”
Help me understand this “objectifying them as sex objects” thing. A lot of men make racial epithets at other men. President Nixon had a favorite word: c0cksuck3r. If a man calls another man this word, is he objectifying him as a sex object? From a legal standpoint, would it be different if a man referred to a a woman using the same word? It seems to me that sexual epithets made toward the opposite sex is labeled sexism and thereby made illegal. Isn’t there kind of a double standard here?
I don’t believe her story has merit. In my opinion it harks more of insult to her ego and she seeks to avenge it by a means she found available to her. If her adversary was Joe the Carpenter she would have complained to his union if she found it might cause him difficulty.
LaserDLiquidator request for cites, It was an if-then construct. If the local association has rules against sexism (or any ism that may be appropriate) or denigrating other lawyers in the public, then dubyuk’s comments are fair game for investigation. I don’t know if the local bar association does.
The aim of a complaint to the Bar is to convince the regulatory powers to discipline an attorney for violation or the law or codes of professional conduct. Discipline can result in suspension of the right to practice for a period of time or outright disbarment. One of the alleged problems with the legal profession “dybbuk” seeks to highlight is the extreme difficulty attorneys have in making a living when they cannot get a job in the profession. “Dybbuk’s” accuser seeks to restrict his livelihood (apparently a serious issue for “Dybbuk”) based on anonymous postings which were claimed to be racist, sexist and harassing (the argument, I suppose, is that he seeking to stifle the professor’s expression of her thoughts and opinions on the Internet and elsewhere – though, I have not seen any comments attributed to “Dybbuk” that have made any general or specific threats, explicit implicit or interpreted on Professor Leong).
Thus, the important question is whether an attorney should be prohibited (ethically or legally) from posting anonymously on Internet forums? If “Dybbuk” were to be sanctioned by the Bar for this activity, it would profoundly muffle a significant segment of the Bar on many important issues. There is a long tradition of anonymous speech (going back at least as far as Mrs. Silence Dogood) and the Bar should be very circumspect about how it addresses these issues.
If bigotry and misogyny are serious enough problems perhaps there should be bright-line rules about the bounds of an attorney’s right to speak even anonymously.
But, maybe, in the reality of today’s world, the “unidentified voice” has outgrown its usefulness. Would this be an issue if “Dybbuk” had posted under his real name? Regardless of whether “Dybbuk” would have been so candid, would Professor Leong submitted this claim in that world?
When a Guy is Bullied, He’s “Not a Man.” When a Female is Bullied, She’s “Just a Woman.”
By Katy Waldman
http://www.slate.com/blogs/xx_factor/2013/11/16/jonathan_martin_and_nancy_leong_were_both_bullied_what_does_the_difference.html
Excerpt:
Does the United States have a culture of bullying? That was the thesis of an article by the New Republic’s Chris Wallace that came out Tuesday. Following in the footsteps of Dave Zirin, who argued last week in the Nation that the NFL’s pernicious “man code” reflected a broader American weakness for “sexism, violence against women…and physical domination of others,” Wallace examines how the “power politics of the locker room” unfold across the country. “There exists a rush to dominance, a pattern of bullying,” he writes, “in every walk of life…The hardest part about watching a football game for me now (aside from knowing now the real toll of the carnage-as-entertainment) is seeing its reflection in the world that brackets it.”
Wallace was reacting to the high-profile NFL fiasco in which a white player for the Miami Dolphins, Richie Incognito, bullied a black teammate, Jonathan Martin, to the point of hospitalization. When Martin first reported the abuse, he was widely dismissed and insulted for tattling like a kid. What he’d done by going to the authorities—instead of taking his tormentor “to fist city”—was break the masculinity code. He failed to “step up and be a man,” according to Tennessee running back Chris Johnson. “I think Jonathan Martin is a weak person,” added an NFL personnel worker (who bravely insisted on anonymity). “There’s no other way to put it, other than him being soft.”
Be a man. Soft. Weak. Got that? As my colleague Amanda Marcotte wrote, “As long as we imagine that there is ‘masculinity’ and ‘femininity’ and these things are in opposition, then men are going to be under relentless pressure at all points in time to prove that they’re not somehow turning into women.”
The same day Wallace published his cri de coeur, another corner of the Internet flared up with its own bullying narrative. A law professor named Nancy Leong published the first of four posts on web harassment. “I want to look closely at…the way that Internet harassers focus on identity rather than on ideas as a specific strategy for excluding women and people of color from online discourse,” she wrote. At which point anyone with any kind of acquaintance with “online discourse” knew to get ready for some repugnant examples. Leong chose hers from personal experience.
“This over-employed pillar of mediocrity is an attractive young woman? Shocking, I wonder how this situation might have developed,” wrote one commenter on an article Leong had written.
“She love someone leong time to get herself a law professor position at such a young age,” quipped someone else. (Clever!)
Leong explains that these cracks exemplify a specific strategy cyber-bullies use to shut down minorities. Instead of engaging with the ideas presented, trolls zero in on the presenters. They hijack the conversation by fixating on the target’s lower status. Basically, they respond to notions they don’t like by telling authors: You’re just a [fill in the blank]. You’re qualified to [do whatever probably-degrading things are stereotypically associated with the type of blank you are], but not have opinions.
Some of this deplorable identity-politicking also occurred in the NFL bullying scandal. Incognito allegedly harped on Martin’s race in a series of nasty texts and voicemails. But what’s striking to me, looking at Martin and Leong side by side, are not the similarities between these cases but the differences.
Martin was bullied when the pro-football world told him he was not a man. Leong was bullied when commenters reminded her that she was a woman—specifically, only a woman, a sex object. The relevant words are NOT versus ONLY—Martin was NOT dominant, strong or tough enough, while Leong was reduced to ONLY a “pretty piece of ass” her colleagues could “undress with their eyes.” Martin was forced out of the prestigious box his gender would otherwise enable him to occupy, while Leong was chided, basically, to crawl back into her inferior box.
david;
We are in a different age – than those of hallowed antiquity;
with some who desire such and others who yell at you opening a door.
And don’t you dare be so polite as to say Yes ma’am.
Be that as it may – I concur with you on the sexism part (as such is “subjective”); and even concur more firmly on the Code of Conduct.
Obviously this thread hit many nerves.
Would someone be so kind as to provide the Code of Conduct Rule(s) at issue (or something more germane – say the “actual” complaint she purportedly filed)?
I’m just sayin…….. our banter is moot – unless we follow sue’t
Have any of you ever heard of locker room talk? The truth is that guys often talk MUCH WORSE to each other than this guy did to this girl. The Nixon tapes come to mind also with some of the choice words Nixon would use toward other men. I’m not even sure there is any sexism involved here in this case. Yeah, the speech is inappropriate. I certainly do not defend it, but a lot of guys are pigs all the way around. I have little doubt this guy has said much worse to other men.
This is why there use to be an honor code among men, not to speak vulgar in front of ladies, not to hit a woman, and to give extra respect to a woman. Opening doors for women is one thing that comes to mind, helping her carry heavy objects is another. It is like the women today want to be feminists and equal with men without realizing what brutes many men really are. If men get the message to treat women equally, there will be a lot more of this kind of talk. I say bring the old fashion concepts of chivalry which taught men a code to treat women differently than men. By that I mean treat women more respectfully than men. No, this is not a call to subjugate women at all. I just think women would be happier if men had that personal moral code of not cussing in front of women, not making gross sexual jokes in front of women, not hitting with women, not arguing with women, etc.
If this case has any merit, it is strictly on the professional ethics of acting professionally and respectfully toward other professionals. I don’t think sexism in this case can be proved.
TY nick
Ladies,
You know how we members of the “weaker sex” are emotional, overly sensitive, irrational beings. Why should a professor who is a graduate of Stanford Law School and who is an accomplished member of her profession take offense when some cretin takes potshots at her anonymously in an attempt to besmirch her reputation? She should man up and take it like a rational, unemotional…male.
“Real honest cons” – LOL
Sometimes you guys really crack me up….
I went on that blog. Boring. Why do we have a Feminist Blog? Perhaps the way to call attention to the blog is to waive the red flag against a sexist pig. And if he is or is not a sexist pig, she got the attention. She got attention here for hours. How many of you ever heard of that blog before today? Not many I would hazard. But I offer you this. Commenting on a blog can be hazardous. Unless you are a dog and few will take you seriously or try to take your dog license away for barking into a computer machine that translates your bark and growl into printed word.
I think that Leong has thrown her boomerang and it wont come back. One shot is good for the whole career. If she taught con law at my school I would transfer. But I am not in school and I have taught con law to cons. Not talking RepubliCons here. Real honest cons. Those who learned to write their way outta a paper bag or a state pen.
Laser, Absolutely about minding your own pig sty. Libertarians have NO inclination about telling you how to run yours, as long as it does not intrude on me. But, do not try to tell us how to run ours. I believe you get it, and welcome to this blog. The more the merrier!