Patterico's Pontifications


Memo to Fred Thompson: There’s a Hole in Your Blogroll

Filed under: 2008 Election,Blogging Matters — Patterico @ 7:04 pm

Allahpundit claims that Fred Thompson’s blogroll is “impeccable.”

I think it’s sorely lacking.

I guess it’s a matter of perspective.

More Thoughts on AutoAdmit — and on the Remarkable Thick Skins of Tenured Law Professors with Widely Read Blogs

Filed under: General — Patterico @ 5:32 pm

I have a few more thoughts on the AutoAdmit lawsuit.

While Eugene Volokh’s analysis of the suit was well done, I disagree with a couple of aspects of his follow-up post, regarding the practical downsides of filing a libel suit.

Prof. Volokh is correct, I think, to warn of the general dangers of filing libel suits. The suit itself publicizes the allegation, and provides a legal vehicle for the discovery of further embarrassing revelations about the plaintiff(s). This is a real concern that should not be minimized.

But I think Prof. Volokh overstates the concern that law firm partners are going to come to court and start listing off the deficiencies of the plaintiffs as job applicants:

[T]he result will be testimony from sixteen prominent law firms explaining why they didn’t want to hire Doe I. What’s more, the law firms aren’t being painted as the bad guys in this law suit, so it’s not a case where (for instance) someone sues an employer for discrimination and the employer’s badmouthing of the plaintiff could be put off to the employer’s racism or sexism or what have you. It’s just sixteen law firms that come across as largely disinterested bystanders (despite the possible reason to shade the truth that I mention above, a reason that is likely not to be prominent in observers’ mind) and that talk about how Doe I botched her interview, or about how her grades were really pretty weak.

Oh, I sincerely doubt that. I can’t in my wildest dreams imagine that we will see hiring partners talking about a plaintiff’s weak interview or poor grades. Unless there is a paper trail located in discovery that forces the hiring partners to acknowledge specifics regarding a particular candidate, their testimony (if it happens at all) is likely to be incredibly bland. It will consist of assertions that the plaintiff was a great applicant, together with explanations that “other applicants better fit our specific needs.” I deeply doubt that the plaintiffs have any realistic cause to worry about a hiring partner ticking off their deficiencies and faults; that would send a very scary message to future applicants, and the law firms know it.

Volokh thinks that the hiring partners might be candid because they can’t be sued for their honest testimony. But the danger isn’t being sued — it’s having the “buzz” about your firm be that nobody interviews there, because the hiring partner might trash your character or credentials at some future date.

Moreover, I think that Volokh, Althouse, Ilya Somin, and Glenn Reynolds (law professors and prominent bloggers one and all!) all trivialize the effect that allegations like the ones in this complaint might have on a young lawyer’s career. For example, Volokh quotes his co-blogger Somin as saying:

[E]ven if law firm hiring committees did believe the comments, … [m]ost big law firms care very little about associates’ personal lives outside the office, so long as those associates are racking up the billable hours. Even if one or two firms were deterred from making offers to this student by the internet comments, it is highly unlikely that all sixteen (or even a large percentage of them) were.

I agree that once as associate is on board, law firms (at least initially) care little about their social lives. But I disagree that it’s true when hiring decisions are made. There are so many qualified applicants that it is easy to envision a scenario where any potential negative is a disqualifier.

Take a simple hypothetical: A and B are both excellent candidates, but A has a nasty Internet trail and B doesn’t. Might not a rational hiring partner prefer B to A? Why buy potential trouble when you can avoid it? If the issues that surface in the Internet trail loom large two or three years down the road, the hiring partner may be taken to task by his colleagues for having missed or ignored the warning signs. Better to avoid the problem altogether. That’s what the institutionally conservative individual would do — and if you don’t think law firm partners are institutionally conservative, you don’t know law firm partners.

I continue to hold this view, even though disagreement with my opinion has been expressed by several tenured law professors who haven’t interviewed for a job in years.

Speaking of which, it is indeed quite a spectacle to watch law professors with established reputations and prominent spots on the Internet — both of which they can use to counter any unjust criticism of themselves — labeling as oversensitive fledgling lawyers with no established reputation and no platform for responding to scurrilous allegations. I think it’s nice that these professors consider themselves “thick-skinned about Internet trash-talk,” as Glenn Reynolds put it — but they have established reputations to fall back on, that were formed before the trash-talk came. These women haven’t had a chance to form their reputations; this controversy may well be the dominant impression many people have about them — and thanks to Google, that could well be the case even absent this lawsuit.

I understand the argument that defamation causes greater harm to people with established reputations, but I don’t agree that this is always the case. I think that sometimes the greatest harm can be caused to people with no other reputation to fall back on. For example, if a rumor were spread at the Torrance courthouse (where I don’t work) that I’m devious, that would arguably harm me more than a similar rumor at Compton (where I do work), because the people in Compton know me, and know it’s not true — so they’d be less likely to believe it.

I find myself most disturbed by the dismissive attitude of Althouse. Reading through her comments, I see her labeling the women as “imperious” and “sensitive” and running off to government for help by filing a lawsuit. But I see repeated evidence that she is minimizing the gravity of the allegations the women are making. For example, Althouse says in a comment:

I don’t have a problem with claims for defamation and there may be some in amongst the jumble of that complaint.

There “may be”? There most assuredly are.

The impression conveyed here is: I can’t be bothered to read the complaint and determine whether there really are valid defamation claims, but I really want to argue for free speech and not be overly concerned with the actual facts at issue. Similarly, she says:

Even if they believe it, what’s to believe? That’s she’s really good looking? They can see what she looks like. They might think she has herpes? Why would that matter? That she causes sexual desire in men? They can see that by looking at her too. That there are some idiots on a chat board who type about their sexual desires? It has no relevance.

How about that she committed sexual assault, or slept with an admissions dean to get into Yale? If a hiring partner believed those allegations, would it matter? Of course it would — but Althouse doesn’t mention those allegations.

I think the bottom line for Althouse is that she reacted to a silly comment made by one of the women’s lawyers — that the suit was over “the scummiest kind of sexually offensive tripe” — and didn’t really bother examining the specifics, to see that the lawsuit is about much more than simply annoying comments. Now that this point has been made, she appears to continually minimize the seriousness of the allegations, for whatever reason.

In any event, I’d like to see a little more sensitivity from all of these tenured professors concerning the real harm that comments like these can cause — when people have no developed reputation and no platform to respond, as all of these professors have.

UPDATE: Reading this post over, I think I’ve been a little too sarcastic. I’ll leave it as-is, but if I had it to write again I would be a little less sharp with my words.

Volokh on the AutoAdmit Lawsuit

Filed under: General,Law — Patterico @ 6:01 am

Eugene Volokh has a typically well-reasoned post on the AutoAdmit lawsuit that I mentioned here last night. The plaintiffs’ complaint includes numerous allegations of sexual threats and clear defamation; I set forth several of the nasty and explicit allegations in last night’s post.

Unlike Ann Althouse, whom I criticized for being too casually dismissive of the plaintiffs’ claims, Volokh shows familiarity with the underlying claims and the applicable legal standards.

Prof. Volokh first concludes, as I did in my own post, that the website operator is almost certainly not liable for the offensive posts.

As for the liability of the posters themselves, he says of the libel claims:

Some of the statements mentioned in the complaint may well be libelous, for instance the ones that accuse plaintiff of having herpes, and of being sexually promiscuous (assuming the statements are false, which I expect they are), or at least false plus highly offensive (which in these circumstances would suffice for a false light claim). They are on matters of private concern and about a private figure, so the defendants would be liable for actual, presumed, and punitive damages.

Defendants’ only defense would be that in context a reasonable reader wouldn’t understand the statement as a factual claim, but just a loose insult that lacks factual content (much as “motherfucker” may be insulting because of the connection to its literal factual meaning, but is almost always used as a pure insult and not a factual claim). That’s a not implausible defense, but far from a sure winner.

Indeed. If you look only at the statements that I excerpted in my post last night, you’ll see just a few of the offensive postings set forth. They include (language warning) a comment stating: “i would like to hate-fuck [Doe I] but since people say she has herpes that might be a bad idea.” I’d hate to be the guy defending that statement in court as a mere insult. Ditto the allegations that a plaintiff committed sexual assault, or had a lesbian affair with a law school admissions dean.

As to the claims for intentional infliction of emotional distress, Prof. Volokh says:

Some of the statements mentioned in the complaint may also be actionable as intentional infliction of emotional distress, because they do seem pretty outrageous when made in a publicly accessible medium. (I doubt the other causes of action are particularly strong, but the distress one might be.) Does the First Amendment preempt such claims?

Some of the statements may be interpreted as threats of rape and the like; if they are interpreted this way, again as opposed to loose hyperbole (see Watts v. U.S. for the leading hyperbole case, though one that arose in a political context), they may be constitutionally unprotected, and there would be no bar to tort liability for them.

The statements, recall, include statements like “i’ll force myself on her, most definitely” and “I think I will sodomize her. Repeatedly.” and “[c]learly she deserves to be raped so that her little fantasy world can be shattered by real life.” Those strike me as credible threats of rape — especially given that at least one of the AutoAdmit posters was following one of the plaintiffs around with a camera.

Most of the statements, though, are just general nastiness; and it’s not clear whether crude, personally insulting speech on matters of private concern about a private figure is constitutionally protected against intentional infliction of emotional distress liability.

Prof. Volokh argues that it should be, on a First Amendment/slippery slope basis. He acknowledges that “this is the sort of case where liability seems especially apt” but worries about the long-term consequences for free speech in other cases.

Prof. Volokh doesn’t appear to be arguing for First Amendment protection for threats, just for crude speech. I agree with him there, but I certainly believe some of the statements listed in the complaint are arguably genuine threats.

Volokh’s last point is that the people who made these statements may get outed by being named in the lawsuit, at considerable cost to their reputations.

The posters’ actions are pretty disgusting and unprofessional; they violate codes of basic decency endorsed by most of society, left, center, and right. If their identities are disclosed, they are likely to lose their jobs (or job offers), lose friends, and be set back for many years and by many hundreds of thousands of dollars in their careers.

Prof. Volokh’s analysis, in my view, is everything that Prof. Althouse’s is not. He shows a familiarity with the underlying allegations and an understanding of their outrageous nature. He shows a knowledge of the applicable legal standards and an understanding that there may well be a legal case against the posters, based on the defamatory and threatening nature of several of the statements. In short, he is not flippantly dismissive of the claims — either their outrageousness, or their legal merit.

It could be that Prof. Althouse’s knowledge of the facts and legal standards is as thorough as Prof. Volokh’s, but it sure didn’t come across that way in her post. Instead, her post communicated the message: there’s nothing here; you just have to put up with statements like this in the online world. As Prof. Volokh’s post makes clear, that’s far from clear. Given the specific facts of this case, the plaintiffs’ claims may well have legal merit.

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