Academic freedom for folks who don't yet have jobs at an institution.

I've been reading the back-and-forth on Professor Steven Salaita, and I've just finished reading a piece on David Frakt in The Atlantic.  According to the article, Frakt was the person who was thrown out of his deanship interview at Florida Coastal (by the President!) for talking about Coastal's students' likely success rate and the relationship of the success rate to the students' debt load.

From what I've read about Salaita (including reading his own tweets myself--some of which made me physically ill), his "uncivil" comments are not merely "uncivil."  Some of his comments are extremely vicious, and I think that some of the comments are also anti-Semitic.  So this professor is not a hero to me, by any means.  

Salaita has a complete right to say what he wants, thanks to freedom of speech.  I don't have to like him.  I don't have to listen to him.  But he has every right to say what he wants to say, and to say it in the way that he chooses to say it, even if I perceive some of what he's saying as exceptionally nasty.  The First Amendment protects him, and I'm glad that it does.

Whether academic freedom does, though, is not as easy a question.  (I've written a little something on this:  http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1544932, which reviews Matthew W. Finkin & Robert C. Post, For the Common Good: Principles of American Academic Freedom.)  I think that the issue is complicated.  "Academic freedom" doesn't protect every outburst.  It protects statements that people make while teaching and writing in their fields, but (to take some extreme examples) it won't protect someone who insists on teaching that the world is flat or that babies come from storks.

The more I spend time on social media, the more I think that people show their real selves there, and they show their real selves yet more when they post anonymously (though, of course, it's impossible to track down who the anonymous posters are).  Salaita's "real self" seems to me to be that of a bully--and a bully who would make his Israeli and Jewish students very, very nervous about whether he could be fair to them.  I would be as nervous about hiring him as I would about hiring a professor who posted screeds against any other group:  Arabs, Catholics, Mormons, single mothers (the list goes on and on).

But what interests me more is the difference between the outcry about Salaita and the absence of much outcry about Frakt.  Both people were prevented from getting their jobs because certain people didn't like what they were saying.  Frakt was, from what I've been reading, saying some perfectly sensible things about law schools and should have--at the least--been allowed to finish his deanship interview.  Salaita was saying some horrible things, but because they were rants against Israelis and Jews, his statements were more "socially acceptable" to the people who are aghast that the University of Illinois didn't approve his hiring.  That's a pretty awful contrast, in my opinion.

So I have to wonder:  where was the anger about cutting off Frakt's interview, and what is the difference between the two stories?

UPDATE:  I really liked this commentary.

Shame on you, anonymous commenters.

I read Above the Law pretty regularly, and I have to say that I'm saddened by the tenor of the comments overall.  I know that the comments are unmoderated, and I don't blame Above the Law for them (or any blogs that allow anonymous, unmoderated comments).  What I don't understand is the mentality of people who write hurtful, anonymous things about people they don't know (or, for that matter, people they do know).  What is it about anonymous commenting that gives people the license to be so horrible?  (I'm guessing that the commenters have never been on the receiving end of any of the drivel that they're posting.  I have been, and it's an awful experience.)

It's not just anonymity that provides a cover for cowardice.

I thought that yesterday's WSJ piece, Why We Are So Rude Online, was particularly apt.  It's easy to treat online communications as something other than "real" writing, but what we put online (and in texts and emails) is just as real to those reading it as something that's hard-bound and on a shelf.  That's why we--especially those of us who are law-trained--need to be very careful about what we commit to paper, even if the "paper" is just a bunch of pixels.

What bothers me about law students (and lawyers) who post anonymously on blogs.

When I take breaks from my work, I often check out blogs.  There's a relatively new blog that covers law in Las Vegas.  It frequently has stories about Boyd Law School and the people who work there.

It's not the stories I mind.*  It's some of the comments that people post that bother me--and not because of the text of the comments.  What bothers me is that the comments are posted anonymously.   Some of those comments are posted by people who appear to have a connection to Boyd. 

Here's what I don't get:  no one forces anyone to post anything on a blog.  Posting on a blog isn't a course requirement.  One doesn't have to write blog posts to get admitted to the bar, or to stay in good standing with the bar.  Blog posts are voluntary acts. 

Because posting is voluntary, I consider anonymous posting to be mobbing behavior.  I consider anonymous posting by law-trained people to be particularly repugnant.

Lawyers have to sign their names to their work.  They sign pleadings.  (And, in federal court, they're signing those pleadings with an understanding that Rule 11 applies to them.)  Even transactional lawyers create drafts that they forward to the other side under their own names.  For better or worse, what a lawyer does is inextricably linked to his or her reputation.

What of those lawyers who are posting their thoughts about judges, and doing so anonymously?  I suppose that they're posting anonymously because they're afraid of running afoul of ethics rules like this one (Nevada Rule of Professional Conduct 8.2):

    Judicial and Legal Officials.

      (a) A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.

If a lawyer posts that a judge is biased or incompetent, he or she had better be able to back that allegation up with facts. 

There are mechanisms for communicating to the public that a judge is biased or incompetent.  There are surveys about judges' abilities.  There are disciplinary proceedings that someone can initiate.  (Whether those disciplinary proceedings actually work is another matter.)  Some of these mechanisms even allow anonymity to provide protection for those trying to seek change (e.g., voting an elected judge out of office).  So, for lawyers who are worried about retaliation for complaining about judges, there are legitimate outlets for their complaints.  (There are also mechanisms that lawyers can use when they have serious problems with other lawyers, such as rules requiring reporting of known and serious misconduct.  For example, there's Rule 8.3.  Again, I'm not convinced that this particular mechanism is effective, but it does exist.)

Most law students are lawyers in training.  If they have problems with something occurring in law school, they have their own mechanisms for communicating those problems--even some mechanisms that can protect them from any feared retaliation.  If they have a problem with someone's teaching, they can fill out course evaluations, which are anonymous.  (I know, I know:  students evaluating tenured professors often believe that their evaluations fall on deaf ears, because the administration may have little power to correct the problems raised by those evaluations.**)  If they have problems with an administration's policies, they have ways of communicating those problems in a group, or through a representative.

But I believe that most fears of retaliation are overblown, and I also believe that people who resort to anonymous posting on blogs to express their concerns are cowards.  Again, posting a comment is a voluntary act.  If someone feels so strongly about something that he's compelled to post a comment, he should have the courage to sign his name to that posting.  If he's a law student preparing to become a lawyer, he had better get used to signing his name to his work.

Anonymous postings also lack credibility.  It's hard for me to take seriously an anonymous comment, precisely because I don't have the opportunity to consider the source of the comment.

How strongly do I feel about anonymous posts?  Well, after I publish this post, I'll be posting links to it on this other blog.  And, of course, those links will identify me.  I have no problem with that.

* OK, I'm bothered by the fact that the authors of the blog prefer to remain anonymous themselves, but that's their choice as the blog's creators.  They're acting as aggregators of information, and perhaps they fear those types of unjustified lawsuits that confuse the aggregators of information with the actual information that others post on their site.

** In fact, administrations do have the ability to deal with egregious misbehavior by even the most senior, tenured professor.  The administration will have to run through more hoops, but it's possible to discipline such misbehavior.  First, though, the administration needs to know about the behavior, which means that people have to come forward with credible complaints.

Fun discussion about anonymity.

See here.  Hat tip to Brad Sims.

I hate bullies--especially anonymous ones.

Just got a nastygram today from RoastMail (meaning that the sender wasn't brave enough to sign his or her own name to the email).  The person, in the guise of being concerned about professionalism, suggested that I was cluttering up everyone's inboxes with my congratulations when people at Boyd did something praiseworthy.

Here's the text:

Nancy,

Please read and heed the subject line.  Everyone at Boyd (especially because we are lawyers/law students) would probably like to throw in their two cents and congratulate whoever deserves congratulations, BUT can you imagine what a mess our inboxes would be if we all gave in to our desires.  Besides it being rude and unprofessional, it's just downright annoying to see a reply to every announcement regarding our school/faculty/students.

PLEASE, out of professional courtesy, keep your personal comments off the email server. 

Good day.

And here was my response:

Tell you what, anonymous roaster---let me put this up to the whole faculty. I'm happy to bow out of congratulatory emails, if my colleagues would prefer that. But I would have had more respect for you, whoever you are, if you'd had the courage to sign your name.
NBR

I'll let readers know which way the faculty goes on this issue.  If I'm really annoying people, then I'm happy to lay off the congrats, even though my guess is that most people feel underappreciated and could use some well-deserved congratulations.*  But I truly hate bullies and cowards, having had enough experience with those to last a lifetime.

Had this person had the courage to come into my office, shut the door, and express his or her view to me directly (or even in a private but signed email), I would have felt bad that I'd annoyed the person, I would have apologized to him or her, and I'd have gone to other colleagues to ask them if I really was irritating the crud out of my colleagues.  But that's not what the person did.

If it's important enough to send a nastygram, it's important enough to sign it.  And I'm going to assume that this person who sent it to me isn't a student, due to the salutation using my first name.

Readers:  are we at a point when praising others is a bad thing?

* See Kent Syverud, Three Principles of Effective Deaning, 31 U. Tol. L. Rev. 751 (2000).

Some common sense about cybertalk

See here. Great editorial!

More on John O'Quinn

His New York Times obituary (here). As I read various comments to posts about John's death, I'm struck by two things: first, how many people actually did appreciate his work, and second, how many people wrote anonymously nasty comments about him.

People either liked John or hated him. I think that very few people really knew him. They were reacting to what they read about him or what they heard from third parties.

Some take-aways: I think that John would have felt gratified to have known how many people did think highly of him, and I think that he would have liked to have known that he was important enough to have made the NYT's obituary page.

For anonymous posters who make gratuitous comments about people they don't know, you need to remember that every human is someone's son or daughter. If you're a pundit, a poster, a blogger, you may want to say something nasty about someone--and sometimes, that nastiness is well-earned. But every time you write something for public consumption, at least think about the fact that the person is human before you post it. If you still want to post it, go ahead. (I've read enough horrifying things about myself online to be inured to it by now.)

Oscar Wilde once said, "A gentleman is one who never hurts anyone's feelings unintentionally." Think before you post.

And John, I'm sorry that more people didn't tell you that they appreciated you while you were alive.

I couldn't be happier.

While enjoying my morning coffee, I read that two of the Yale Law women who were woefully abused by anonymous posts at AutoAdmit a few years ago settled their lawsuits against the posters (see the ABA Journal story here). Those anonymous posters weren't trotting out any of the usual excuses for hiding behind pseudonyms: fear of retaliation, fear of losing their jobs, etc. They were cowards and bullies, pure and simple. And now, at least one of them has been named--and publicly shamed.

Good.

Anonymous postings are the last vestiges of cowards.

After reading the latest barrage of comments over at Wild Wild West's post about late grades (here), which managed to get picked up by the Wall Street Journal's law blog (here), I have to confess that I'm stunned that so many people feel compelled to post vitriol anonymously. Based on the tenor of their comments, I'm going to assume that the bulk of the anonymous posts were written by law students.

Even on the theory that law students often don't make the connection that they're actually going to be lawyers after they graduate and pass the bar, surely they realize that they'll have to sign letters and pleadings with their names as lawyers and that they won't be able to hide behind "Anonymous" sobriquets then? So why do they--as well as so many others--hide behind anonymous postings on blogs?

I doubt that most of them have a true fear of retribution. There are people in the world who can fear retribution: those who suffer abuse in relationships; those who are here seeking asylum from other governments; those on the wrong end of power imbalances with very nasty bosses. Those reasons are good ones for seeking anonymity. Lobbing nastygrams, especially without investigating the reasons that may have caused the complained-about situation in the first place? Not a good reason.

To you budding lawyers out there who are writing anonymous comments on the Wild Wild Law post above: maybe you should be anonymous. Were I to write some of what you've written, I'd be ashamed, too. When you become lawyers, though, you'll have to stop behaving so childishly. I'd be a lot more impressed with you if you'd have the courage of your convictions and sign your name to your comments. I have.

Why the anonymous posts?

I've been wondering why people post comments to blogs on an anonymous basis. Are they afraid of being harassed? Are they shy? Are they uncomfortable putting their names on their opinions?

So far, I've allowed anonymous posting, but most of what I've seen is just nasty stuff, which leads to my conclusion that only cowards post anonymously. If there's another reason for anonymous posting, especially on blogs like mine, please tell me what those reasons might be.

My bad--and thanks to "anonymous" and my dad for finding glitches in my USNWR spreadsheet

Here's the updated one (with some charts added)--sorry for the glitches.