First, AutoAdmit is, by its own description, “The Most Prestigious Law School Discussion Board in the World”–where participants presumably share information and advice about attaining a professional degree and gaining employment. Given the nature of this environment, is it possible to understand the negative postings to be subject to Title VII? That is, federal law explicitly prohibits speech that creates a hostile or offensive work environment not only for employers but also for employment agencies and labor organizations. Are professionally oriented message boards a 21st-century equivalent?

Second, does the anonymity of the posters have any relevance here? That is, “they have a certain right to be a**holes” as A.W. said, but is it wise to let them be anonymous a**holes? It seems that anonymity leads very quickly to the ugly mob attacking a scapegoat under the cover of night. This is most likely an ethical question rather than a legal one … but setting in place some safeguards that could lead to anonymous creeps who post such material being “outed” seems like a good way to impose restraint and might actually result in some civility. (I guess this would mean that forums and service providers need to keep records of IP addresses and not dump them in an attempt to be a “safe haven” for all free speech, regardless of how reprehensible.)

Speech can have both good and bad effects; I for one think that a public discourse that continually humiliates and intimidates a group of people (whether female law students or African-Americans under Jim Crow) inevitably has a chilling effect on the productivity of that group–and thereby harms us all. Yeah, it would be great if we could all just buck up and get on with it, but humans don’t work this way, which is exactly why insulting, offensive, and dehumanizing speech persists. It’s intended to be harmful, and it is.

We foster the good consequences of speech by ensuring that it’s free and unfettered. But that doesn’t mean we can’t also take measures to limit the negative ones–so, for example, we don’t have to permit employers to make unwanted sexual remarks to employees. If the AutoAdmit speech is worthy of being protected, shouldn’t the authors of that speech be required to be accountable?

As I said, this most likely isn’t a legal question … Just an idea for how to have the best of both worlds.

Revolver is actually much better for personal protection. I carry one of those at times too. A little S&W .38 with recessed hammer. Reliable and makes a kaboom like the Illudium Q-36 Space Modulator. Not too accurate at much of a distance, but if you’re far enough away to have that as a concern, you’re far enough away to flee and avoid shooting someone in the first place.

Dude, you made me laugh, especially “at least, one would hope that they’re unintended.”

And i very much know what you mean about the anti-semitism. I am not jewish, but my first name is considered “jewish” and sometimes i use my first name online. So i know how vile it can get. And that isn’t even getting into the category where i am actually a minority.

Btw, the conversation has moved to a new thread. maybe you want to share there, too.

Back when I was first getting rather unambiguous anonymous death threats (“Stay away from the wite (sic) women or yur (sic) a ded (sic) jew” — hey, at least he spelled “Jew” more or less right) I felt perfectly comfortable in calling the cops, as well as getting the carry permit and the gun.

But that was pretty straightforward, particularly given that some of the other threats were rather a lot more precise as to what supposedly was going to happen, and when.

The folks who want to try to fix more ambiguous wrongs (and, sure, all of the mean stuff quoted in the original article is wrong) might want to consider that among the laws that simply can’t be violated is the Law of Unintentional Consequences, and as the Canadian experiment has demonstrated pretty conclusively, attempts to legislate away pretty scummy speech have pretty serious unintended consequences.

At least, one would hope that they’re unintended.

I hope nobody will think me too terribly insensitive if I suggest that the chicks offended by this stuff should just man up and get a pair, but, hey, that’s kinda the way it goes, and not all hopes are fulfilled.

Actually that is where i part ways with you some, on the first link. The cop can choose to be a klansman, or a cop, but not both. First, the Klan is not merely a political organization. They are a terrorist group.

Its like if someone wanted to be in Special Forces and al Qaeda at the same time. Not going to happen. Or, well, I hope it won’t.

And even if this cop only joined a racist but peaceful organization, “mere speech” can impair the ability of a police officer to do his job. If a South Central LA man says, “all N—–s are crooks” and then puts on a police officer’s uniform, he is going to be useless in his job. Every crime scene involving a person of color will be tainted, in the eyes of the jury, by this unreconstructed racist. to this day, i believe that Mark Fuhrman caused a wife-murderer to go free in the OJ case.

And i don’t dismiss easily the idea that certain people have to be able to “tow the company” line when it comes to government service. A cop should stand up for justice, which is supposed to be colorblind. if he is a klansman or just a racist, that fatally undermines the message he is rightfully required to send.

You have a right to speak freely. But you don’t have a right to a government job. And let’s hope and pray that we never get to a day when the public sector is so large that such a doctrine completely deprives the unpopular from making a living. And to the extent that the SC doesn’t agree with me on that, I don’t care what they think.

Which is not to say that the government should impose heavy off-time speech restrictions on the police. but we are talking about constitutionalism, and there is no serious argument to be made here that you cannot, as a matter of law, politicize an office. The shift away from the political patronage system to a apolitical civil service model is a modern phenomenon, unknown in the days of the founders.

Of course i am talking only about the Federal Constitution. Individual state constitutions might have a different doctrine.

> People who are google-bombing are actively trying to interfere (read: destroy) someone’s life in a way that Bathroom Stall literature has no way to do.

But in the context of interference torts, irrelevant.

> This is not innocent teasing, nor even malicious childishness.

And the fact I don’t want to repeal or significantly limit the first amendment doesn’t mean I think it is innocent, or merely childish.

> This is a mob mentality desecration, they get caught up in the fun of attempting to mutilate a person’s sense of self. Tell any black youth to ‘buck up’ when facing a lynch mob of KKK.

That’s what the courts said when the Nazis wanted to march in Skokie, more or less. Buck up, being offended is the price of freedom. We cannot end freedom of speech with the veto of the offended.

If you want to look at what an Orwellian path this leads us to, I only refer you to the “human rights” trials of Mark Steyn and MacLean’s. Among the charges against Steyn, for instance, is that he quoted an imam who compared Muslims to mosquitoes. You get that? He quotes an imam, a priest in their faith, talking about the faith, and he is hauled before a court. Ezra Levant had a similar experience and he and Steyn have documented instances where a man was pulled in by an openly anti-Semitic imam, because he said there was a lot of anti-Semitism in Islam. Steyn has said, more or less, the only thing they won’t tolerate is your intolerance of another person’s intolerance.

Marc

> It would certainly harm me in my teaching career — especially in a field so lefty-dominated.

Not all harms are actionable. Giving an opinion is not, even if it is mean-spirited and unfair.

> who seems to be a strong-willed free speech absolutist

Pretty close to it.

> That there *just might* be something in this parable that shows that we need to come up with something to cure the ill.

Not really. I would offer her police protection because she has a right to be scared. Oh, and I am a strong believer in the second amendment, so there is that, too. But ultimately we should not punish a person for mere speech, even really piggish, creepy speech. There is a line, and they are close to it, but they have not gone across it as far as I know, and I am not interesting in innovating the law to knock them back.

> Some campuses reacted to Juicy Campus by putting up a “nice wall,” where students were asked to write nice things about one another and to pledge to boycott Juicy Campus.

And that is another point. The best answer to bad speech is good speech.

Oh, and maybe we need to keep people out of the public domain more. if memory serves, the university posted their photos online. Bad idea. The combination of a pretty girl at an elite school is a recipe for resentment among certain underevolved people.

I hereby hug you back!

And.. well, you are right that asking people to stick up for the victimized creates the risk that they’ll turn the locusts on you.

I’m willing to put myself out there as a potential victim to stand up for those who might be unpopular. For example, had I been posting on AutoAdmit when the attacks started I certainly would have posted my criticism of the attacks. Would it have helped? I don’t know… I really don’t. In fact, my posting on AutoAdmit might backfire and turn into the biggest nightmare of my life.

However, I’m willing to try.

And that is what I beg of anyone who reads this — lets try everything before we try redefining important terms like “freedom” and “equality,” and lets try everything before we restrict either one.

Perhaps, and I hope not, but perhaps we do need to circle back one day and go down that road. However, we’ve not yet even tried more creative solutions. And we can try them simultaneously with the bad ideas. But with all these collectively brilliant people in the legal academy, why don’t we have more voices calling for more creativity? I guess that “binary” is my new word, but it is the one that comes to mind. This whole issue becomes so much more of a better drama if it becomes “us versus them” or “sexist pigs versus innocent women” or even “freedom versus censorship.”

Now of course, I’m asking for positive-mob-mentality in a world where sometimes people don’t even help, in “real life” when they see someone being attacked. Perhaps my faith in mankind is too deep, but well, that’s me.

I can’t come back to this discussion only because I’m spending too much time on it! But, I have absolutely loved it. Thank you all for the mental provocation. Please don’t ever hesitate to email me directly if you’d ever like to knock this kind of stuff around.

-Marc

I think you’ve made a bunch of strong points that I feel the need to highlight.

I felt like your first post was not an accurate portrayal of yourself. You were reacting against what you perceived as an ad hominem attack against your person, and your remarks were not as tempered as your later, more debate-like responses. I now feel like I unfairly judged you based on very limited knowledge, and I’m happy to say you’ve gradually changed my mind.

But it does prove my point. Firstly, that you saw misinformation about yourself on an internet blog and immediately felt the need to correct it. You felt like it could affect your academic career. Not because those were your actual opinions, but rather because random readers might BELIEVE that those were your opinions.

I, also, misjudged you. You first post seemed defensive, and all I knew about you was what she had posted. Which was, of course, her own opinion based on the forum (radio programme?) you and she had participated in.

Over a few posts, I came to appreciate your point of view more. But it took time to overcome the initial reaction. Now consider a forum just filled with the negative speech, and none of the positive speech. Humans are very susceptible to the opinions of others, especially groups, and anyone who views those pages would believe them.

No one would believe that she’s a heinous beast-monster like she is implied. But the belief would persist that she must have done something to deserve this. This is why these kinds of forums are incredibly dangerous, even if no individual sentence is particularly atrocious. (Side note, many of the things said in this case ARE particularly atrocious.)

I think that your response is the correct one. When you see hateful things, counter them. As you did when you saw what Danielle wrote, and I did when I saw what you wrote, and even A.W. when he saw what Danielle wrote. The only way to achieve civility is through discussion. But at the same time, social suggestion can only go so far, and i believe there should be some mechanism (I cannot think of anything appropriate that would work) that could curtail the people who go too far.

Asking people to become advocates for the victimized only works to a point, because they risk becoming victimized themselves.

You put it well when you said that we have the right to be assholes. However, we have a choice to be civil. The problem is when well-meaning people, usually left-wing academics (which I consider myself to be), try and remove that choice and take away that right — as if we’ll all be civil if we lose the right to be an asshole. We won’t. In fact, we’ll probably be more assholish.

Nevertheless, it is a fair way to analyze this that there *might be* something more involved in an organized (or even disorganized) google-bomb-online-swarm. For example, a false statement on this blog that I “trivialize harm to women,” is one thing. But, what if she got 50 people to put that in the header to blog postings, on comments all over the place, etc. It would certainly harm me in my teaching career — especially in a field so lefty-dominated.

However, one statement in a vacuum probably wouldn’t do that. Repeating the lie again and again, even by anonymous sources on questionable message boards (I’m not calling CO that!), might eventually create the impression that there must be something to this.

Accordingly, there truly is something worth exploring here — but I think it needs more creativity of thought, less of a reflexive jump to push the censorship button, and it also needs more intellectual honesty in the exploration. The OP’s premise fails. To boil it down, it seems to be “Mean boys say mean things about girls, therefore, we need special rules to apply to girls in the name of equality. Those special rules should be to suppress free speech in the name of free speech.”

I think that the comments have fleshed out the discussion in a way that even you, who seems to be a strong-willed free speech absolutist, should be able to give some credit to the other side of the debate: That there *just might* be something in this parable that shows that we need to come up with something to cure the ill.

Of course, I would like to see more of a focus on combating negativity through positivity. Some campuses reacted to Juicy Campus by putting up a “nice wall,” where students were asked to write nice things about one another and to pledge to boycott Juicy Campus. I don’t know if it solved the problem, but it did a lot better than any lawsuit against JC ever could. It at least had more thought behind it than “lets create new torts.” Another creative way is shown here, where a restaurant reacted to bad Yelp! reviews by simply adopting the statements as their own.

Neither of these solutions might help an individual who gets netswarmed — but these solutions at least should light up pathways that don’t lead to restrictions on freedom, which seem like a great idea at the time, but always turn into uncontrollable hydras. Also, neither of these solutions require us to adopt Orwellian redefinitions of words like “freedom” and “equality,” nor do they require us to create a gender war where there is none.

Now, do I have a proposal? I do!

I have started posting on AutoAdmit and BigLawBoard myself. I post under my real name. I hope that when I find threads where incivility is ruling the conversation that I can perhaps inspire more civility. There was one thread where a woman was being referred to as “whiny.” I expressed the true opinion that I admired her. A few more chimed in that they did too. Next thing you know, the post was pretty balanced. I wish that more of my peers would do the same — because sometimes you can achieve civility through leading by example. Wouldn’t it be wonderful if, for example, thought provoking and civil discussions like this one could begin squeezing out the nasty stuff over there? Anyone want to join the experiment and try?

Tell any black youth to ‘buck up’ when facing a lynch mob of KKK.

An extreme example, but the point stands. Buck up makes sense when you are being too sensitive about something impersonal. But people who are after your livelihood, people who are trying to physically intimidate you (which they were, when they started posting about what she wore at the gym.) There’s no ‘buck up’ response to that. It’s either take action (which she did) or leave. Those women chose the stronger option.

First, what contract is interfered with. Second, in what sense is google-bombing a wrongful interference.

Sheesh. Ya’ll need to get it in your head. They have a certain right to be a–holes. Okay? the fact they are creeps, the fact that they wrote this about them, the fact that some people might be stupid enough to pay any creedence to this digitized version of scribbles on the bathroom wall, or catcalls at a construction site, is unfortunate, but it is not cause to infringe on the 1st amendment.

> “I would rape her” probably is actionable — as you correctly state that it is designed to place her in fear.

First, on its face, it doesn’t look like they expect “her” to even know they are saying it. That is why it is a third person pronoun and not a second person pronoun.

Second, look at what you can say. Here’s what a Klansman said in Brandenburg v. Ohio, among other things: “We’re not a revengent organization, but if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it’s possible that there might have to be some revengeance taken.”

Expressing a desire to do something bad is protected. Advocating that others do it, is, unless it is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” And “imminent” means very soon. And while I am not a slavish follower of the Supreme Court, especially the Warren court, I think they got it right; if anything they enabled too much restriction of speech.

> “I would rape her” probably is actionable — as you correctly state that it is designed to place her in fear.

First, on its face, it doesn’t look like they expect “her” to even know they are saying it. That is why it is a third person pronoun and not a second person pronoun.

Second, look at what you can say. Here’s what a Klansman said in Brandenburg v. Ohio, among other things: “We’re not a revengent organization, but if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it’s possible that there might have to be some revengeance taken.”

Expressing a desire to do something bad is protected. Advocating that others do it, is, unless it is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” And “imminent” means very soon. And while I am not a slavish follower of the Supreme Court, especially the Warren court, I think they got it right; if anything they enabled too much restriction of speech.

Let’s separate out gender issues for a second (maybe that’s not possible, but let’s pretend). What we’re left with is a loosely organized but persistent and highly visible mob of insulters and harassers. There are at least three knotty issues just with respect to the activities of such a mob. One issue is the actual harm caused by their speech. A second is whether it is legally cognizable. These two issues are related, and there are at least some reasonable people who say that speech by strangers that does not give rise to a (current) cause of action should not really be considered harmful. I think that’s wrong, as I’ve argued in the comments section of this blog before, but I also think that we should avoid slippage the other way: just because something is harmful does not mean that it fits neatly into one of our existing legal categories.

In particular, while there was some speech on Autoadmit that appears to be garden-variety defamation, and other activities that might qualify as stalking (intentionally engaging in a course of conduct that places someone in reasonable fear of physical injury to themselves or family members), a lot of the harmful speech in question doesn’t really fit into these boxes. It might give rise to an IIED claim, except that I would expect that the requisite level of psychological damage is probably lacking–the strong-willed have a difficult time proving that claim.

The third knotty issue is whether this is the right result — or whether there should be an additional cause of action here. I’m very troubled by instances of spontaneous mob harassment; in a debate here with Paul Ohm, I listed it above snooping by ISPs as one of my main privacy concerns. What particularly concerns me is the ability of large groups of strangers to quickly self-organize into a campaign of harassment, in which the collective result is very disturbing to the victim but each individual action seems relatively minor. I think this is a situation without real parallel in history, given that there were previously very few opportunities for a large group of strangers impervious to social sanction to organize in this fashion.

But defining some sort of cause of action that wouldn’t reach your average flame war, and would be consistent with the First Amendment, would be difficult. You can factor gender back in at this point, and I’m sure gender dynamics are relevant, but I don’t think you need them to explain why someone might be hesitant to expand their view of the legally cognizable harms here.

Thank you for clarifying. I agree with everything you’ve said, and I also agree that my parting statement was too binary, but it was meant to be illustrative, and you did a good job of making it more specific.

The letter is a much more serious threat, but I am worried about the matter of degrees. We are moving to a much more digital culture, and email is rapidly becoming the prevalent form of communication. Therefore, as more and more of our days are lived on the internet, our laws must begin to recognize that online speech needs a keener eye than it has been given before. I’m not saying that they are the same, in fact there are many very fundamental differences between anonymous forums, and written letters. But these differences are used to trivialize what it happening in those forums. I’m not saying you are doing it, I’m saying that the general consensus of society is that anything that occurs on the internet is less serious. However, with facebook, and twitter, and other such networking tools, it should be noted that a few sentences on a website somewhere, have the power to completely obliterate someone’s life, and that power is something which needs to be noticed.

That argument is a little more abstract than the issues of this particular case, but I’m simply saying that this case should be taken seriously because internet speech should be taken more seriously in general. And, it will be in another few years, once the internet generation have become judges and lawmakers themselves.

Thank you for a thoughtful discussion =D

I accept that you might have the better view (regarding the firearm).

And, I don’t disagree in the least with where you seem to draw the line. “dood UR gay,” is clearly not actionable. Neither is “I’d pour syrup on that.” “I would rape her” probably is actionable — as you correctly state that it is designed to place her in fear. I don’t think anyone sees the internet as changing the rules or being different. Well, actually, I would take a letter as more serious of a threat because that takes more effort — thus tending to suggest there is a greater chance of follow through. But, nevertheless, nobody reasonable would say that there is no problem with attempting to take action against true threats.

However, we need to draw a line between warranted freak outs about true threats and irrational freak outs about “meanness on the internets.”

On your broader view — you’re right on all except one: Violent hate speech is, indeed, protected (at least in the USA).

I like your parting sentence, but it is too binary. Freedom of speech does not only mean freedom from the government, it also means freedom from your fellow citizens who want to use (or abuse) government systems (like the courts) to stifle free expression.

I’m sorry if you thought I was being rude by being “glib and trivializing.” I was actually trying to be G&T, but not trying to be rude. What I was trying to do is point to one half of the problem and say “on this side, we have a real problem. On the other side, we all need to get a little real.”