Saturday, Jan. 9, 8:30-10:15 am: The First Amendment Meets Cyber-Stalking Meets Character and Fitness
Cyber-stalking and cyber-harassment have made their way to the legal academy. Some scholars say that on-line attacks constitute protected free speech. Other scholars say that this conduct is tortious and raises serious equality and civil rights concerns since internet stalking is often directed at women and minorities. But what about the character and fitness requirements that law students sitting for the bar must satisfy? Do law students who engage in harassment, smearing, and other such conduct (on Facebook, blogs, "Above the Law," etc.) raise fitness and professionalism issues? Is there a problem with law students using websites to make outrageous gender- or race-specific comments (often about other students or faculty members)? (See http://lawvibe.com/the-autoadmit-scandal-xoxoth/ .) Is this conduct beyond question as free speech or does this conduct raise character and fitness issues that law schools must address? Does the fact that it is technologically difficult to identify all abusive posters impact the calculus?
Deborah L. Rhode, Stanford Law School
Jack M. Balkin, Yale Law School
Brad Wendel, Cornell University School of Law
Lyrissa Lidsky, University of Florida, Levin College of Law
Danielle Citron, University of Maryland School of Law
Moderator: Elizabeth Nowicki, Boston Univ. School of Law, Tulane Law School
The standard First Amendment objections to such proposals are succinctly articulated by Professor Volokh (UCLA) here, though he does not, of course, characterize the speech at issue very precisely, let alone give examples. One might think a simple rule like, "No one shall be admitted to the Bar who repeatedly and with malicious intent posts on the Internet threats (implied or otherwise) of sexual violence against women" would not unduly impinge the marketplace of ideas. Admittedly, a standard like the one Professor Volokh purports to maintain for his blog--"I not only support but enthusiastically practice denial of access to our blog to people who say things that are vulgar or pointlessly rude or insulting"--would make a poor legal standard, but that, presumably, is not what anyone is proposing. (As an aside, I assume it will come as news to Ann Bartow, Marvin Jones, Ken Kress, and the many other law professors who have been subjected to vulgar, rude and insulting comments on Volokh's site that he practices any such "denial of access.") In any case, I expect this to be an interesting session and commend it to those in New Orleans.