Pro Bono For Butthurt (Empathy Update)

As the wagons are circled around a small cabal that will emote without anyone in earshot to say an unpleasant word at New York Law School, another announcement was made in conjunction with the First Annual Tyler Clementi Internet Safety Conference:

The product of a collaboration between NYLS and the Tyler Clementi Foundation, the Institute is a full service education and direct outreach initiative that, among other things, includes the only pro bono law school clinic representing victims of cyberharassment for free! (Emphasis in original.)

This comes from lawprof Ari Waldman at NYLS, who invited questions. So I asked.

No doubt everyone inside the circled wagons already knows the answer. Cyberharassment means, well, you know.  But despite using the word, Waldman likely appreciates the problem that other lawprofs deny and ignore.  And demonstrated the honesty of saying that he has no definition, but plans to “fill such gaps” as they go along.

Waldman also says that he plans to “provide a platform for debate on all sides.”  Based upon the individuals invited to speak at his First Annual Tyler Clementi conference, that’s hard to accept. There is no one there, not a soul, who will take any issue with anything said.

There’s a trick being played here. By naming his club after Tyler Clementi, its primary sponsor, he raises the specter of a young man who committed suicide.  Clementi’s parents were at the conference, telling those present how it felt to lose their son.  Who would be so heartless as to raise some painful questions to parents whose son committed suicide?

But there are questions. Serious questions. Tyler Clementi, the narrative goes, committed suicide because his roommate exposed his homosexual sexual conduct online. Was that the cause of his suicide? Was that the whole cause? No one knows, because Tyler Clementi isn’t around to explain. Why would the mere revelation of homosexuality be enough to drive a young man to commit suicide if he was in an otherwise supportive familial environment, was otherwise untroubled, was otherwise strong enough to say, “so what?”

And while these are real questions, they’re not the questions anyone would speak to Clementi’s parents. No one is so uncaring as to challenge a parent who has lost a child. At least, no one should be.

Had someone been asked to speak at the conference who was not inclined to chant hallelujah with the rest of the circle, they might have asked who in the room had been subject to cyberharassment.  Every hand in the room would likely go up.  But when asked who in the room ever committed cyberharassment, few, if any hands would be raised.

It’s due to a lie they tell themselves, we all tell ourselves.  To the extent there is anything remotely approaching a definition, cyberharassment is conduct that hurts someone else’s feelings. It’s a definition on the back end, meaning that it’s defined by the way someone who reads it, learns of it, feels about it.

The problem is that if we accept this definition, we are all cyberharassers. Every person who claimed the victimhood in that conference is a perpetrator as well. As we go through life online, we will express thoughts that disagree with other people’s thoughts.  And they will be hurt by it.  Everybody is going to hurt everybody, with the proviso that everybody suffers from the level of fragility that words of anger, even hatred, will hurt them.

Of course, it’s possible that additional conditions can be added to the definition, such as persistent course of conduct intended to “hurt” someone, but these conditions, while still amorphous, would ironically fail to have covered the conduct to which Tyler Clementi was subjected.

These are deeply problematic conditions, as they fail to define what constitutes persistent and, more significantly, would limit the focus to people who intend to cause some sort of “hurt,” rather than to express their disagreement, anger, even hatred, toward other people’s ideas.  These things are all protected speech. We are allowed to disagree, and to express that disagreement in strong, vulgar, annoying, even terrifying, language.

Brian Leiter, in posting about this pro bono effort, quips “they will likely be very busy!”  And indeed, there is no shortage of people who believe they’ve been maligned online.  Will Ari Waldman gather together a group of students and law professors to sue, at no expense, anyone who hurts anyone else’s feelings?  So it appears.  For what remains unclear, as there is no cause of action that would allow such a suit at this point.  Torts such as infliction of emotional distress are hard to establish:

  • Extreme or outrageous conduct that
  • Intentionally or recklessly causes
  • Severe emotional distress (and possible also bodily harm)

That someone called you a mean name, and that made you feel very badly, doesn’t cut it, and isn’t meant to cut it.  But the idea that there is someone willing to take on cases of pedestrian hurt feelings, thus putting the malefactor in the position of having to defend against frivolous suits, either pro se or at the expense of counsel, would not only have a significant chilling effect on protected speech, but do serious harm to those who are compelled to deal with Waldman’s efforts.

Is this what he has in mind? Is cyberharassment to be limited by a definition as yet unknown? Should a pro bono foundation be established to fight against an as-yet undefined evil?  And should a law school, a law professor, try to take the lead in silencing protected speech because someone it hurt or someone’s hurt feelings?

Frankly (since this is happening in New York), it wouldn’t be too terrible if New York had a strong anti-SLAPP law, that imposed significant penalties and attorney’s fees for lawsuits designed to silence public speech. At least then, should the attack of the feelz happen, there will be a very real price to pay for banal butthurt.  A price that could well crush even a lawprof’s salary, not to mention bankrupt a law school.

But there is no anti-SLAPP law in New York, so the only hope for Waldman’s exercise in protecting pro bono against butthurt is that he arrives at a definition that goes beyond anything that hurts a fragile fellow’s feelings.  The problem is that he’ll never get there if he limits his world to the choir members he’s invited to his conference.  And his choir members will never accept a conference that doesn’t involve them alone inside their circled wagons.

Update:  A twit by Montserrat Beidermann raised a detail that needs to be addressed occasionally, so why not now?


Oftentimes, posts about sensitive and highly emotionally charged issues make people uncomfortable, and many would prefer there be something to soften the harshness.  I replied by explaining:

This is a common problem for those of us who defend criminals or challenge unconstitutional laws.  To the simplistic, it’s taken to mean we are pro-crime, pro-bullying, pro whatever bad behavior they’re against. And to a lesser extent, this applies as well to those who feel uncomfortable about our unapologetic approach.

This is a gross misunderstanding of what I’m doing here. I’m just as disgusted with abusive or offensive communication as anyone else. I don’t do it. I don’t think anyone should do it, and by no means do I support or advocate for it.

But that should be sufficiently obvious that I don’t need to explain it to you. I will not Gertrude. That should be taken for granted. In a way, it’s a litmus test for those capable of understanding the point. If you need gertruding, then you aren’t ready for SJ.

H/T Josh Blackman

11 thoughts on “Pro Bono For Butthurt (Empathy Update)

  1. Sgt. Schultz

    Let me see if I’ve got this straight. Waldman and NYLS have created a pro bono program to “eradicate cyberharassment,” except they have yet to figure out what that means and what they are going to eradicate? But they do know it will be pro bono?

  2. Nigel Declan

    Given the lack of a definition, is it possible that, perhaps with the best of intentions, this pro bono group may end up representing SLAPPers rather than SLAPPees?

    1. SHG Post author

      I may seek their legal assistance the next time someone calls me a misogynist for not adhering to feminist dogma with the passion expected of me. It makes me very sad.

  3. mb

    You might would be surprised at how many of the kind of people who want protection from criticism and disagreement would openly admit to bullying, harassment (the real kind), public disclosure of private, sensitive information about others, and other deplorable conduct. Not only are many of these kinds of people some of the worst offenders, they don’t even realize that any of their behavior is uncommon, so they’ll gladly self flagellate to demonstrate their moral superiority, confident in their assumption that you are as bad as they are and should join them in admitting it.

  4. Pingback: First Monday, And Free Speech Heresy | Simple Justice

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