Tuesday, July 24, 2007
Interesting essay by Steven Lubet (Northwestern); an excerpt:
Two days after the massacre at Virginia Tech, an anonymous post on the despicable AutoAdmit Web site (previously best known for repulsive comments about women and minorities) raised the possibilty of a replay at a San Francisco law school. The post was headed "Just decided not to do a murder-suicide copycat at Hastings Law." Hastings College of the Law dean Nell Newton recognized that it was probably a "sick joke," but she obviously had to take it seriously, which meant evacuating the school and canceling classes for the day. The Federal Bureau of Investigation subsequently determined that the poster, who had used the pseudonym Trustafarian, was a first-year law student at the Boalt Hall School of Law in Berkeley. The following week, Boalt dean Christopher Edley, Jr., announced that the law school would seek to expel Trustafarian (the school did not release his real name), due to "the intrinsic wrongness of the act . . . and the disruption, turmoil, and emotional toll" that it caused.
Dean Edley accurately described Trustafarian's post as an "astounding instance of . . . reckless disregard for the welfare of others," but let's assume that it did not actually violate any laws (as of this writing, no charges have been filed). Like it or not, sick jokes are covered by the Constitution...so Trustafarian is sure to argue that he cannot be disciplined by a state-operated law school or kept out of the bar, if he manages to make it that far....
The First Amendment makes no ready distinction between nudity and creepy-though-not-quite-threatening rants. In both disciplinary and bar admission proceedings, however, the inquiry is not limited by the familiar "clear and present danger" standard. As many courts have held, the ultimate issue is not the expressive nature of the applicant's speech, but rather its predictive value. In other words, does the aspiring lawyer's questioned behavior raise a strong and reliable inference of future misconduct? If so, admission can be denied. If not, welcome to the bar (but try not to do it again).
The best known example...is the case of racist and anti-Semitic cult leader Matthew Hale, who was refused admission to the Illinois bar because his "publicly displayed views" were "diametrically opposed" to the legal profession's obligation to equality and nondiscrimination....
That precedent spells big trouble for Trustafarian, who has not exactly shown himself to be a pillar of fiduciary trust and confidence. On the other hand, it would be a mistake to wield the Hale rule too broadly. Hale had made a career out of virulent racism, leading an organization that was committed to subjugation of the "mud people." His repeated pronouncements meant something, and it was impossible to dismiss them as merely rash or ill-considered. Trustafarian, as far as we know at this point, apparently committed a single appalling and outrageous act, which he can attempt to characterize as an aberrant instance of Web-induced dementia. That might conceivably cause the authorities to give him another chance--perhaps following several years of enforced hiatus--although I wouldn't bet on it.
The other interesting case growing out of the Autoadmit fiasco will be that of recent Penn Law graduate Anthony Ciolli, who as administrator of the site for several years, regularly rebuffed, often quite rudely and cruelly, requests to remove slanderous and harassing material from the website, and even defended (bizarrely*) on free speech grounds the decision of he and site owner Jarret Cohen to permit this material to stay on-line. That conduct already cost him a job with a law firm, but will it cost him Bar Admission? That remains to be seen.
*It is a bizarre defense because (1) the First Amendment does not license defamatory speech or certain kinds of threatening and harassing speech, (2) the constitutional protection for free speech, in any case, has no application to a private entity's decision to remove material from its site, which means (3) the only relevant "free speech" argument would have to appeal to some moral ideal of freedom of speech; but there is no moral argument for free speech in which defamation and threats of criminal and sexual violence have a principled claim on freedom of expression. (Indeed, I'm skeptical that there's any moral argument for free speech which would encompass the vulgar harassment and juvenile insults that are the trademark of Autoadmit.)