Crazy Little Thing Called Speech

Above the Law columnist Elie Mystal asks: should nasty commenting trigger an ethics probe? Absolutely not.  Moreover, as a vocal blogger often critical of ethics regulators and a practicing attorney dependent upon my law license for my livelihood, the fact that a law professor, of all people, would pursue this kind of action against a pseudonymous loser creep too cowardly to comment under his own name and not worth the time of day, scares me to death.

I’ll share my concerns in a moment, but first some background. For those unfamiliar, Nancy Leong is a law professor at the University of Denver whose scholarship, as well as her gender and race (in her view) was the subject of persistent criticism and ridicule by a commenter going by the pen name “dybbuk.” Frustrated by what she viewed as harassment, Leong did some digging, easily uncovered the commenter’s identity as a public defender in the Chicago area and after first attempting to speak with him personally, filed an ethics complaint against him in Illinois.

Professor Leong’s decision to file an ethics complaint against the commenter sets unspeakably bad precedent for bloggers exercising their First Amendment rights. The barriers to filing an ethics complaint are exceedingly low, and Professor Leong’s complaint will invite frivolous complaints.  There’s no filing fee for submitting an ethics complaint and no need to retain an attorney either. There are no discovery costs; the grievance committee will investigate the action for you.

I frequently criticize ethics regulators and other attorneys, as do many of my fellow bloggers.  Although I try to keep it professional, the subjects of criticism often take it personally.  I’ve been sued for defamation over a post that I considered relatively innocuous. Still, it was one thing to have to shell out a few thousand dollars to hire the best lawyers ever to get the case dismissed. What if anyone annoyed or angered by my posts could file an ethics complaint against me? I don’t intimidate easily, but the prospect of a black spot on my otherwise (knock on wood) pristine ethics record scares the heck out me.

And for what? That’s what aggravates me most of all. Professor Leong claims that Dybbuk’s comments would constitute harassment in the workplace. But even if that were true, the blogosphere is not the workplace.  While Dybbuk may have mocked Professor Leong’s scholarship, that’s his First-Amendment protected opinion. Moreover, I’d say that Leong had the last laugh there when her scholarship drew a judicial shout-out in a federal circuit court concurrence.  As for the other remarks, they seemed rather mild. Maybe it’s just me, but I’d rather be called a “hottie” than compared to Hitler.

Finally, what lesson does Leong’s action teach lawyers-to-be? That when confronted with a judge calling us a “little lady” or an opposing counsel sneering that you’re wasting their time because you’re just a mom dabbling in law as a hobby (all of which I’ve encountered), we should run to ethics counsel and file a complaint?  Once, I represented an older male client who was angered by a federal judge whom he felt had roughed me up a little in the courtroom and felt that it was not appropriate treatment for a woman. Very chivalrous of the client, but I explained that the remarks had been relatively benign and it’s all part of how law practice works.

None of this means that I endorse or agree with Dybbuk. As I said at the outset, I think that the guy is a loser and I don’t condone his remarks. So what would if I were in Professor’s Leong’s shoes? Most likely, I would have ignored the posts.  Or depending upon my mood, I’d have gleefully taken a megalomaniacal approach and wielded my power over him by posting in a way to intentionally provoke the beast and watch him predictably react to my words like a puppet on a string.  (I am hoping to do that more with the commenters at Above the Law, but to date, have been unsuccessful in riling them). If Leong felt unduly picked on, she could have also reached out to colleagues to file posts in her support. I know that on several occasions, I’ve stepped in to support a colleague or blogger whom I’ve felt has been unfairly criticized.

Likewise, if I were concerned that the frequency and content of dybbuk’s posts called into question his ability to competently do his job or represent his clients (it’s not clear to me based on what I’ve read whether that is the case here), I would have quietly brought my concerns to his employer’s attention and let the office handle. That’s what happened in the Autoadmit case, notes Legal Ethics Forum, where a law student forum that hosted harassing comments was immune from defamation under the Communications Decency Act, but where an employer found the conduct inappropriate and rescinded the student’s job offer.  

All of these solutions would have allowed Professor Leong to get peace, revenge or whatever she was after without chilling the free speech rights of bloggers. Professor Brian Leiter suggests that Leong’s experience shows why women aren’t welcome on the Internet. Really, as a woman blogger having been yakking away at this blog for over eleven years, that women aren’t welcome on the Internet is sure news to me. In any event, I think that the opposite is true: if women are going to file ethics complaints against anonymous losers who criticize them, they’ll become even more marginalized in the blogosphere. Which is perhaps the most unfortunate outcome of this entire affair.

Update: For a discussion of ethics and First Amendment issues here, see this post by Avvo’s Josh King.