It struck some as odd that such a resolution made it onto the agenda at all. Diversity and inclusion? Not just for law firms, or the practice of law, or the judiciary, but for . . . the world? When did the American Bar Association decide that its mission was to make the world “socially just,” whatever that means? When did the ABA decide that law, lawyers and clients was not enough to keep it busy?
But the ABA needs new blood, young blood, in order to keep its coffers filled, and this was just the type of issue that, in the minds of old men who don’t twit, would attract the babies. That or free tattoos, which would have been wholly unacceptable.
And then there’s regulatory capture, the folks with a horse in the race and enough time on their hands to dream up important issues in need of the ABA’s attention. There’s a name for these folks. No, not terminally unemployed, you silly. It’s law professors, and they do a good deal of the heavy lifting in organizations that rule by committee. Because they can, while others either work for a living or just don’t give a shit. Because their livelihood depends on it.
But when the ABA Journal decided that it had done enough writing about legal news, and legal tech, and anything that really had much to do with anything legalish, it took a swan dive into the rabbit hole:
When a former relationship ended in an allegedly harassing online diatribe, Zoe Quinn got a restraining order against Eron Gjoni.
But then a bigger problem began, the Washington Post (reg. req.) reports in a lengthy story.
A group of anonymous individuals involved in an online attack known as Gamergate targeted the independent game developer (other women also experienced similar harassment attributed to the group when they attempted to defend Quinn). The attackers posted Quinn’s address and nude photos, hacked her website and some even made rape and death threats, as Quinn meticulously documented on zip drives, the newspaper reports. Fearing for her safety, she also moved out of her home in Boston.
In fairness, the WaPo story upon which Martha Neil based her ABA Journal post goes on forever as an unabashedly pro-Quinn homage, lamenting the failure of the law to provide a remedy for Zoe Quinn’s online experience at the hands of the faceless masses, the mob.
Quinn hasn’t technically exhausted her legal options: There’s still that rumored FBI investigation, and she could pursue a civil case for defamation or exposure of private facts. But Quinn’s lawyers are working pro bono already, and a defamation suit would require delving into unwanted sexual history in court.
Plus, pursuing further legal action would mean facing Gjoni in a Boston courtroom, which Quinn hopes to never do again.
“It’s exhausting, and the whole point of this is to try to reclaim my humanity and stop having to be a ‘good victim’ for the court system,” Quinn said. “So I decided to be an absolutely terrible victim by speaking up” about the legal process.
Gjoni is still challenging Quinn’s initial restraining order, which she voluntarily vacated last August, in an attempt to establish new legal precedent around the use of restraining orders against online incitement or harassment. He has already raised $29,000 from his supporters, and persuaded constitutional scholars like Eugene Volokh to file amicus briefs on the case.
“It’s an outrageous violation of the First Amendment,” said Volokh, whose legal blog, The Volokh Conspiracy, is published on The Post’s website. “Fifty years ago, in Brandenburg v. Ohio, we asked if speech that encourages crime could be punished. The Supreme Court said no. There is no legal remedy for [Quinn], because that’s how the First Amendment works.”
Asked if perhaps the world had changed since 1969, when Brandenburg was tried, Volokh acknowledged that while the world may have changed, the Supreme Court “has not been inclined.” Quinn, for one, will not be a test case.
“It doesn’t feel like a battle worth fighting,” she said.
Is there a real legal issue involved in this story? You bet there is. But that’s not what the ABA Journal chooses to write about.
“It’s very clearly not a priority,” said Katherine Clark, a Democratic congresswoman from Massachusetts whose district was impacted by Gamergate. “Their feeling is that it doesn’t cause bodily harm, but that misses the point. What’s so corrosive is that it has the effect of silencing people, of disrupting their personal and professional lives. We see more of a reaction if someone’s purse is stolen.”
At the same time, however, holding a large number of individuals accountable for mass action is a hugely time-consuming task, law professor Danielle Citron of the University of Maryland told the Post.
Unfamiliar with GamerGate? It doesn’t matter. That’s not the point, and you certainly won’t gain any familiarity with this extremely contentious issue by reading the ABA Journal.
Instead, what you will learn is that there were allegations of harassment by Quinn against Gjoni, which are offered as true and beyond dispute, even though they will never be tested in court because Quinn chose not to pursue them. Because it’s too exhausting. You will learn that the law fails “victims” like Quinn who try to whip up the multitudes to their side, only to learn that there are also multitudes who disagree with them. You will learn that the law is incapable of holding “mass action” accountable, but only for the side that cries about it, and not the other side suffering the other side of mass action.
You will learn that this was an atrocity toward Quinn, who “meticulously documented” her attacks, and whom the law failed. You will not learn that this was an “outrageous violation of the First Amendment.” You won’t learn why any of this started in the first place, or what happened back and forth. You will learn there are assholes on the internet, but you won’t learn that they come in all flavors.
You will learn that the ABA Journal has affirmatively chosen a side in this gender conflagration and published this post that deliberately fails to inform, and deliberately takes the side of Zoe Quinn, whose allegations have never been proven and whose solution would constitute a flagrant First Amendment violation.
While the ABA may have chosen to embrace the positive piece of the social justice agenda, to its embarrassment and without regard to its mission, this polemic by the ABA Journal, a separate entity from the ABA, reflects a very different problem. Rather, the ABA Journal chose to ignore the law and the significant legal issues, reject the Constitution by ignoring the rights at risk, deny that the facts are highly contentious, and instead grossly mislead its readers to promote a view even more extreme than the WaPo op-ed upon which it was based.
You will learn that the ABA Journal chose to forfeit its integrity and credibility by publishing this article. Regardless of which side, if any, of GamerGate you support, the ABA Journal has abandoned any pretense at substance and fairness by picking the Zoe Quinn side.