By Mark Esposito, Guest Blogger
When I was a young lawyer twenty-five years ago or so, I remember a particularly enlightening client meeting. A 30ish woman had scheduled an appointment to discuss a sexual harassment case against a prominent lawyer in town. Being the new guy at the firm but with some considerable jury trial experience even then, I was asked to sit in while our senior partner met with the client. The client arrived and began a convincing narrative about a sexually charged work place replete with provocative innuendo, being subjected to daily dirty jokes, some pass-by groping in the hallway and even arriving at the office in the morning with an open Penthouse magazine on her desk. Despite complaints to the other partners with nothing of substance being done, she claimed, the client had taken all she could and resigned citing this treatment as the reason. Since the claimed harassment involved a superior and a text-book hostile work environment seemed evident, we were seriously considering taking the case despite what we knew would be a no-holds barred defense.
When we came to the part of the meeting where we asked about corroborating evidence in the form of witnesses or documents confirming her version of events, the client’s demeanor changed from cool professionalism to anger. “Don’t you believe me?”, she shot back like a dagger. “No, it wasn’t that,” our senior guy said. “We just need to know what kind of case we can present.” Wrong answer! ” I don’t want a lawyer who doesn’t believe me. I know what happened and all you have to do is subpoena every staff person there and they’ll tell the truth.” I recall thinking at this moment about all the clients I represented and their look of absolute betrayal as witness after witness “couldn’t remember” this event or that one in deference to preserving their job status. I didn’t say anything, but the senior lawyer did. “Look,” he said quite understandingly I thought, “This is a bad situation for you but he’s a prominent person in the community. His firm is on tv doing all kinds of charitable work around the holidays. He has represented thousands of people in the area, is well-connected politically, and has tons of financial resources to throw at you. We need to know how strong your evidence is going to be.” That broke the camel’s back. “You’re in cahoots with him aren’t you?,” spat the client. “I was told you would take the case because I was in the right, but now all you want to do is talk me out of it by telling me how good his case is going to be.”
“No, not at all,” came the reply as the client was gathering up her papers to make a fast exit. “I not interested in you representing me ,” came the terse rejoinder and “I’m thinking about reporting you to the bar for being in league [with her tormentor].” With that she turned on her heel and strode out the door. A little sheepish, I asked “Should I go and try to get her to come back? It looks like a winnable case to me, if we can get some confirmation of her story,” I asked. “No,” came the seasoned reply. “She’s a chip person, and juries can smell that a mile away.” I went back to my desk thinking here was an intelligent person with a potential case who can’t step away from the emotion of the moment to aid even those who want to help her. It’s an emotional blindness we all suffer from.
I thought about that while reading about the dust-up between Professor Leong and her Moriarty, dybbuk, as well as the unseemly sandbox dispute between Professors Campos and Leiter. Let me know how these statements strikes you, the blog jury. First from Professor Leong’s website, Feminist Law Professors:
Some argue that racial and gender harassment are part and parcel of participation in online discourse. As one white man commented on my prior post: “Welcome to the jungle . . . . If you want to have a voice . . . just do what we have been doing for over a decade and laugh it off.” (In context, “we” meant “white men.”) Of course, it’s easy to talk about “laughing it off” when, because of your status as a white man, you’re virtually never the target of identity-based harassment that deploys historically subordinate or marginalized status as a silencing tool.
My obvious question is how does Leong know that her poster is a “white man”? Does he say so? Did she ask? Did she track him down and call his workplace to find out? Or is she just assuming and making the same stereotypical argument of which she complains herself? Are her assumptions about white men any more venomous than the assumptions about a “white man’s” reaction to her identity? My reaction, which I think some will share, is that Professor Leong is a “chip person.” That is she views every criticism through the lens of her own personal battle and doesn’t understand how the same statement would be viewed by an independent person freed from the emotional involvement of her circumstances.
And for Exhibit A consider this screen shot of the exchange between Leong and dybbuk which she entitles “Luau Train”:
Leong’s take on the first comment: “Rather than explaining why (for example) he thinks that the racial capitalism framework is analytically flawed, the first commenter disparages my Native Hawaiian background with a reference to the “luau train.” He then attempts to undermine my intellectual contribution to an academic conference by claiming that the reason for my presence is to serve as an object of sexualized attention for a presumed heterosexual male audience.”
Professor Leong in word and deed (naming the image) obviously considers this comment by dybbuk to be a slur aimed at her heritage, but there is also a more benign interpretation that dybbuk is merely commenting about the location of her speech and not her heritage. Why does an educated person fail to consider the view of things than a simpleton like myself would have to concede could also be true? For his part, dybbuk claims he has no knowledge of Leong’s Hawaiian roots and was referring to the sumptuous spreads some speakers get at these seminars that never seem to be scheduled in Dubuque in the winter time.
Now consider the case of the dueling professors. Prof. Campos sends the following email to his apparent long-time intellectual adversary:
From: Paul F Campos [mailto:paul.campos@Colorado.EDU]
Sent: Tuesday, December 31, 2013 11:03 AM
To: Leiter, Brian
Subject: Dybbuk
Brian,
I have been asked by somebody who has passed on (unsolicited) some potentially very embarrassing personal information about you to me, regarding your activities in cyberspace and some related goings-on in the real world, to make this information public, should you choose to “out” Dybbuk.
Paul
Professor Leiter upon receipt of the email launches a broadside attack lambasting Campos for, what he says, is “resorting to blackmail.” He then adds the following dittie that struck my logistician’s eye:
I am told by a colleague who teaches criminal law that this threat is blackmail (criminal “intimidation” as we call it in Illinois, or “extortion” or “criminal coercion” as it is in many other jurisdictions). I have no idea what fabrications Campos would produce this time, but there is nothing truthful he could post, and he knows it. (Remarkably, this is also not the first time Campos has tried to coerce another law professor with threats.)
You guessed it the classic logical fallacies of an ad hominem attack (Campos is bad because he’s done bad before and he lies ergo he is not to be believed) and a borderline appeal to authority (My colleague teaches criminal law hence he must be knowledgeable in charging decisions by local prosecutors. Maybe he does, but Leiter never tells us.) by an unknown source.
For his part, Professor Campos says his email was mere warning and the twisted grammar aside, it’s a reasonable interpretation especially if Lieter has already “outed” dybbuk thus making any such disclosure of “embarrassing personal information” an empty threat since the trigger on the disclosure has already been pulled.
Leiter comes off as prickly and seeking to find the worst possible interpretation of Campos’ actions. I don’t think a fair-minded person would make the same mistake in the courtroom or that other bastion of democracy, the court of public opinion. So why lose your case in both courts simply because you need to “strike back” by questioning anyone and anything that contradicts, in the slightest way, your interpretation of other people’s motives.
Ultimately these two episodes prove to me why litigants need to arrive at court with everything except that chip. It’s unattractive and lends an air of holy crusade to a civil dispute that the resolver of fact will assuredly sniff out. Juries have their limitations but divining motivation isn’t one of them. Oh, they can be mislead and fooled but they never miss a chip the size of a 2×4.
As the pre-eminent blue ribbon jury on the blog-o-sphere what say you about these two alleged wrongs? Chip people or victims — or both?
~Mark Esposito, Guest Blogger
Elaine M:
Sorry, not to respond to Elaine’s question. Professor Leong actually posted alternate way she could have handled the situation on website. See the citation for her site above in my reply to Dr No JD for the ways.
Dr no JD:
“that constitutional law somehow dictates what Professor Leong may or should do with information about the identity of this commentor.”
**********************
I am freely admitting my Popeye position that ” I am what I am and that’s all that I am.” As a lawyer who has litigated these US Constitutional issues in some occasions (my law partner has one of the seminal cases on it here in Virginia), I am sensitive to the value of the First Amendment. One of those principles implicit in the notion of free speech is the right to comment anonymously. Prof. Leong admits this herself in her blog post and shares the case citation. This has been a bedrock of our democracy since Thomas Paine made his way into the print shoppe. That a teacher of Con Law would seriously debate infringing this right for someone else absent a threat of serious bodily harm struck me as intellectually schizophrenic and hence my comment.
As for Prof. Leong’s dilemma over the “outing” I think that while Leiter was considerably more vocal and publicity minded she likewise made her personal agony on the topic public. Here’s her post where she describes her angst:
I thought about publishing the names of some of my harassers. Several colleagues, both within and outside the academy, urged me to do so, particularly with respect to my most persistent harasser, and particularly after they learned that he was a public defender. As one eloquently explained: “This person is a public servant with a very important job. His work has a very direct effect on the lives and freedom of his clients. Even if this person is struggling with a mental illness, if that illness is manifesting itself as bigotry, then it’s important that his clients, the courts and his employer know that.” Another agreed: “Out his ass. He is an officer of the court with duties and obligations to his ENTIRE community. People have a right to know. You do not control what is done with the information thereafter.” And another: “Public defenders have an incredibly important job and need to be held to incredibly high standards.”
I struggled with this decision for a long time. Ultimately, however, I decided against publishing the person’s name for the reasons I have already described. Without full information, I hesitate to expose someone else’s life to the permanent censure of the Internet. I see a fairly obvious irony in the situation: I am protecting the online reputation of someone who has shown nothing but contempt for me and many other women and people of color, and who has polluted my google search results with hateful and disparaging statements. (emphasis mine).
Leong, Nancy, “Consequences and Conclusions,” Feminist Law Professors. Dec. 17, 2013. http://www.feministlawprofessors.com/. Accessed Jan. 10, 2014.
Elaine, I noticed. It’s blaringly evident and disappointing to say the least.
Chip people or victims — or both?
~+~
These blokes put a lot of vinegar on their chips.
annie,
No one has suggested how Leong could have better dealt with this cyber harassment yet.
How could she have avoided it? He posted this drek on 5 different blogs. You place the onus on Leong, who is the victim.
mespo,
I do feel an attachment to this blog. I have been disheartened by some things that have gone on here and by the recent loss of two fine guest bloggers–as well as some of our most respected longtime regulars who always added greatly to our discussions. I feel sad that it came to pass. I miss them all.
I think you missed the point that Annie and I were trying to make. It is indeed cordial to welcome new posters. Is it magnanimous to warn newcomers about elitists and ideologues and people who are “intellectually dishonest” that they will encounter here? Is that a good/an appropriate way to welcome new folks to this forum?
davidm:
” Nevertheless, I assume you would agree that some lessons in civility are warranted for everyone involved.”
**********************
Thank you for the reply. I would absolutely agree that all involved could benefit from some civility counseling and a slice of humble pie. As you know, I am not a civility absolutist as I know it can be used by the powers that be as a blunderbuss against change that is needed. Still that’s not the magnitude of the situation here. This is a jerk goading a nice but inexperienced person into an unflattering position that she could have avoided. That she didn’t is what caused me to write the article along with the Campos-Leiter situation.
Mespo – I appreciate your willingness to consider my perspective on the matter. And to do so respectfully. Since you’ve been nice enough to respond to my little clarifying questions, I hope you’ll consider another. I’m confused by part of your response to Professor Apel. Maybe I’m reading into it, but it seems like you’re saying that constitutional law somehow dictates what Professor Leong may or should do with information about the identity of this commentor. I’m having trouble seeing this. Professor Leong is not the government and is not restricted by the First Amendment. Indeed, I would think that the First Amendment would protect her right to disclose such information publicly (as long as it was legally acquired). As I said earlier, I’m not a First Amendment expert, so maybe I’m wrong.
Let me also (gently) suggest that I think you might be engaging in a small bit of the tunnel vision that is the theme of this post. I say that because it seems to me that you’re conflating, to some extent, what Leong has said and what Leiter has said. (I’ve been sufficiently intrigued by this thread to read through the various posts written by most of the principles — at least the one’s that I could find). Leiter has been hand wringing about outing the guy. He even hosted an online poll about it. As far as I saw (and my apologies if I missed something), Leong talked about it only once in a blog post about internet harrassment more generally. As I read her comment, she was suggesting that outing a pseudonymous poster may be appropriate in some circumstances, but that she decided that from her perspective this wasn’t one of them. It may make for a neater narrative to view her as similarly beating that issue, but I don’t think it’s quite accurate.
Mespo, I’m am in no way saying that Professor Turley wouldn’t be happy to see new commenters here. My issue is with Spinelli appointing himself spokesperson, it grates and is annoying and if and until Professor Turley states its just fine with him, then I’ll shut up.
annieofwi:
“Amazing how Spinelli feels he can speak for the community here. He is not my spokesperson Dr.No JD, nor for many here I suspect. Of course, I know better than to try to speak for them.”
**************************
Since I started here in 2008, many regulars have come to feel a certain attachment to this place. I like that and we welcome lots of people into our little soiree all the time. JT is a magnanimous host and he has described himself as our bartender in the cyber-bar where ideas get imbibed. (Some are lots “harder” to take than spirits, by the way). I think JT is happy to welcome any new face and I don’t think he is in the least bit offended by nick placing out the welcome mat in his absence.
Susan Apel:
Thank you for your legal input as well as your personal perspective which by reason of my gender I will likely never fully appreciate. That said, I have no doubt the comment was sexist. My focus as I tried to explain in a prior comment to Dr no JD (and I assuredly don’t expect to hang on my every word) was that:
” No one is promoting sexual stereotyping, minimizing it, or justifying it. That was the point of my little anecdote about a probable valid claim. I was merely pointing out that even meritorious claims are undermined by a rabid sense of self-justification and indignation at mild criticism. Hence,a “chip person.”
I say this as an a person with some advocacy skills not as a judge. Forced to render an opinion of the offending poster I would agree his comment was … well … offensive. I am just critiquing an obviously intelligent woman’s approach to the affront by tracking him down at his workplace and expecting a reasoned discussion. Not going to happen and I suspect Prof. Leong knew that in her heart of hearts. I’m also not enamored of the horn tooting or the Hamlet-ian angst over whether to “out” or “not to out” — despite the slings and arrows. In my judgment, that really shouldn’t be a tough question for a teacher of US Constitutional law absent a credible threat of serious injury or death.
I think she put herself in the same position our prospective client did in seeking justice with an indignant attitude. It just doesn’t work even if you’re as right in your position as moral certainty allows.
That said. I hope you will stay aboard with your commentary and insights.
Mespo, You make a great point. People can look @ the same incident and have very different takes on it. If you gave both a polygraph, they would pass it. I’ve had that happen many times investigating civil cases. Hell, I would get suspicious when I interviewed several people and they had almost identical takes.
I posted the following comment on another thread earlier today:
I know most of the people commenting here feel that Leong took the wrong approach in order to deal with her cyber harasser. I’d like someone to provide a suggestion/some suggestions for how she should have dealt with “dybbuk.”
Ah so easy to hide behind free speech in an attempt to destroy someone’s career. What an insult to the principal of free speech. Just
like any really good thing, it’s so good it’s abused.
I can’t believe anyone is seriously defending the conduct of Prof. Leong and her full frontal assault on free speech, as an academic no less. Her attempt to use disciplinary rules to silence a critic is reprehensible.
I find it a bit insulting to Professor Turley, that Spinelli continues to place himself as the spokesperson for Professor Turley and other commenters here. It’s not incivil to point out that he does not speak for everyone here and I don’t think Professor Turley makes a good dummy for any ventriloquist.
Dredd:
I debated the grammar snafu of the picture but Gene Wilder looked so disarming (but with a dagger at your ribs) that I couldn’t pass it up.
Dr. No JD:
I appreciate your perspective and it makes sense, too. I was looking at Prof. Leong’s statement as a lawyer would look at another lawyer’s. The rule of primacy and the “naming” of the screenshot were persuasive to me that this lawyer intended to convey more umbrage at race than gender. Certainly, I could be wrong but I guess my point is that people honestly looking at the same set of facts can reach different conclusions. That said, I would no more disparage your interpretation that I would assert categorically my own. That’s the difference I try to make between “chip people” and folks who fervently believe in their position but are willing to listen to new information before fixating.
Like nick, I hope you stay on and welcome aboard, if you do. We really think we have something special here and that’s probably my situational “chip.”
Some describe a place where everyone doesn’t agree with them as a jungle.