A National Law Student Code of Conduct?
posted by Dave Hoffman
Reputation Defender is a new start-up that seeks to commodify internet self-help. According to yesterday’s WashingtonPost article on Xoxohth, the service will destroy harmful content about you wherever it appears on the World Wide Web, presumably through an escalating series of gentle reminders followed by hard nudges against hosts. As I blogged yesterday, the site is trying to make a public good out of this private remedy by “encourag[ing] law schools to adopt a professional conduct code for students.”
How is this different from the codes of conduct that currently govern law student behavior? Temple, to take an example I’m familiar with, has a broad-ranging student code that includes the following provisions of interest:
It shall be a violation of this Code for a TLS student knowingly to do or to attempt to do or to assist in . . . a course of conduct . . . directed at a member of the Law School community which would cause a reasonable person in the victim’s position severe emotional distress or which would place a reasonable person in the victim’s position in fear of bodily injury or death, provided that this provision shall not be interpreted to abridge the right of any member of the Law School community to freedom of expression;
[or] . . . engage in conduct, not otherwise covered by any other provision of the Code, involving dishonesty, fraud, deceit or misrepresentation with regard to activities or programs related to the Law School, which adversely reflect upon his or her fitness to remain a student at the Law School.
Such policies are fairly widespread, often with explicit stalking provisions. I think that any law student who posts the name of another student at their school, in a public forum with a hostile sexual or racial tone, and refuses to stop making such comments on demand, would face probable disciplinary sanction if they were identified. (I understand there are First Amendment implications here, somewhere, but that is an argument I’ll leave to folks like David Bernstein to make.) This conclusion holds even if the comments were intended in jest, so long as a reasonable person would feel threatened (in the language of most codes). I assume that law students read disciplinary codes when they start their education, or would not find them terribly surprising.
Now, whether such a student would be liable for making comments about students at another university – who they may never have met, or intend to meet – is a harder problem. Individual law schools may believe that they have an attenuated interest in such cases, and that the matter is better left to Bar Committees or the police. This is a jurisdictional concern. They may also believe that they have no writ for protecting non-community members – something like an international law/statist view. (What will happen when the human rights folks get a hold of such codes is an interesting problem!) That said, I am pretty sure that a substantiated allegation of cyberharassment would be good grounds for denying bar admission, though criminal prosecution would be unlikely. So, law students submitting pictures to such contests, or commenting about the affected students, run a real risk of professional sanction if they are discovered.
What, then, does a national code add? Most importantly, I think, the goal would be to create intra-school responsibilities, resulting in a work-around of the host-immunity problem by sanctioning students who enable such conduct, instead of just the (anonymous and hard-to-reach) students that perpetuate it. Thus, the national code of conduct would make law school disciplinary committees something like private attorneys general for conduct that the criminal law will rarely reach and the ethical rules reach only on discovery.
Additionally, a national code of conduct might have a signaling function. No doubt there would be a following campaign to enlist law school student deans in education efforts about the professional consequences of cyber-stalking for victims and perpetrators alike, and to suggest that schools have ways of detecting such conduct that will (no doubt) be undisclosed. These efforts will not eliminate cyber stalking by law students, but it will push it to less public fora. Good.