The presumptive suicide of Rutgers student Tyler Clementi is a potent one for use to make any number of important points.  It’s similarly potent for abuse, as tragedy invariably is, by seizing upon this poor young man’s death as the hook for tangential, or even completely unrelated, agendas.  The former is a teaching moment.  The latter is reprehensible.

Dan Solove, at Concurring Opinions, offers the responsible view.

From the facts I’ve learned thus far, it remains unclear precisely what motivated Ravi and Wei’s actions.  What is clear is that this case illustrates that young people are not being taught how to use the Internet responsibly.  Far too often, privacy invasions aren’t viewed as a serious harm.  They are seen a joke, as something causing minor embarrassment.  This view is buttressed by courts that routinely are dismissive of privacy harms.  It continues to persist because few people ever instruct young people about how serious privacy invasions are.   Another attitude that remains common is that the Internet is a radically-free zone, and people can say or post whatever they want with impunity.

The fact that we don’t know either Dharun Ravi’s intent in posting videos of Clementi online, or the thoughts that went through Clementi’s mind in deciding to jump to his death, precludes any responsible person from imposing their notion of the wrong done, or extrapolating from it greater messages or calls to action,   Yet that’s exactly what many have done.

Was this a prank gone horribly wrong, an example of bullying, whether generic or online, or a hateful attack based on Clementi’s sexual preference?  From the single bit of information available, a twit by Ravi, it appears that he thought it quite the joke:

‘Roommate asked for the room till midnight. I went into Molly’s room and turned on my webcam. I saw him making out with a dude. Yay,’

Whether he knew his roommate’s sexual preference is unknown.  Whether he harbored any ill-will toward gays is unknown.  Whether he meant to hurt Clementi is unknown.  I can easily see him explaining himself, saying, “Come on, dude, it was just a joke. Chill out.”  It’s quite possible that Ravi’s purpose was more nefarious, but to impute such motive without basis is irresponsible.  To then take such imputed motive and use it to further an agenda is disgraceful. 

The death of this young man is a tragedy.  Whether this online airing of his private moment drove him to suicide, was the straw that broke the camel’s back, somewhere in between or entirely unrelated, will never be known.  The secret truth of Clementi’s purpose died with him. 

It’s fair to assume that Clementi’s sexual preference, that the video of his encounter with another man, was a significant motivating factor.  To use this tragedy to urge and educate about tolerance and sensitivity toward gays presents no problem, regardless of whether it’s an accurate assessment or not.  This is a worthy goal regardless of what role sexual preference played in Clementi’s decision. 

But to use this as a call to action for a new crime or enhanced punishment is an abuse of this tragedy.  The abuse of tragedy to further irrelevant agendas has become so common that we barely notice anymore.  We’re particularly blind when we happen to like the disconnected agenda, happy to see any outcome, no matter how tragic and irrelevant, used to further a cause in which we believe. 

This tragedy has also been seized upon by applying the pejorative “bullying” to it, despite a near total absence of connection whatsoever.  Bullying has become a trendy cause, both because it’s a very real problem  as well as a  to deflect criticism and responsibility, and a facile means to create victimhood whenever feelings are hurt.  Vague notions like bullying, which are as easily derived from the sensibility of those hurt as those doing the hurting, have enormous potential for misuse.

But to use this as a call to action against bullying, and particularly cyber-bullying, is an abuse of this tragedy.  While Ravi’s prank, if that’s what it was, was callous at best and came at Clementi’s expense, it demonstrates the stunning insensitivity rather than an intention to bully. 

Mike Cernovich at Crime & Federalism  made an important point by putting this tragedy in real-life context.

Clementi’s roommate was an 18-year-old boy.  Although 18 is old enough to die in Iraq, 18 is not a man. An 18-year-old brain isn’t fully developed.  Most of us – especially we males – who are free and successful people are free and successful because of luck.  

The stupid shit we [did] didn’t have consequences.  We embarrassed and ridiculed people, or we joined the mobs in laughing at others unlike us.  Fortunately our victims did not kill themselves.

What if they had?  Would our pranks had taken on a greater moral significance?  Must we measure a boy’s conduct based on his motives, or upon the consequences?  

Or should we stop looking at this boy?

Regardless of whether Ravi’s conduct was a stupid, schoolboy prank or an attack on Clementi’s sexual preference, it’s too late now for Tyler Clementi.  But if you want to take a lesson from this tragedy, here it is:

Do you speak out against bigotry?  When people oppose gay marriage, do you remain silent and polite, like a passive-aggressive beta?  When instead you should say, “Get the fuck out of here with that homophobic bullshit.”

Most of us dare not offend, and so we tolerate the intolerable.  We say that opposing equal rights for gay is a matter of “reasonable dispute.”  We say that not because it’s true, but because we lack to courage to stand up against hate and bigotry.  We use politeness as an excuse for cowardice.

If each of us took responsibility for what happens in our society, large and small, and showed the courage to call out those who create the culture where bigotry, lies and cowardice thrives, Ravi’s conduct wouldn’t have altered Clementi’s life choice.  Rather than shame, Clementi might have ripped Ravi a new one for his behavior, whether a prank or an attack. 

Imagine if Tyler Clementi’s reaction was to metaphorically (or maybe not) smack his roommate upside the head for what happened rather than kill himself.  There’s far more to the interaction than shame for his sexual preference, but succumbing to his hurt feelings rather than standing up for himself.  This culture of cowardice not only prevents us from confronting wrongs, but compels us to suffer in silence and bear the consequences rather than stand up for ourselves. 

Ironically, the same tragedy that gives rise to Mike’s point about showing the courage of speak out against wrongs will be used by those being called out, crying that they are the victims of the bullies.  To recognize this, unfortunately, requires a depth of understanding that most people lack, which is why we can’t seem to move beyond these tragedies.  Standing up to wrongs takes character, courage and understanding.  These traits are not popular anymore.

An email from Stephanie West Allen started me thinking.  She wondered why happiness was suddenly all the rage.  Next weekend, there will be the First Annual (can there be a first annual?) Global Happiness Summit, which struck Steph as “a bit odd.” 

Odd enough that Bruce Carton tried to entice Three Angry Lawyers to attend by offering to pay their admission.  If Carton had only offered airfare and a decent hotel suite, he might have had some takers, even though the promise of the Summit was a bit, oh, vague.

The Global Happiness Summit will be the most important and dynamic summit in the history of the happiness movement, bringing together hundreds of industry, government and visionary leaders, research scientists and accomplished students from all over the world.

Apparently, the need for happiness has displaced issues like Global Warming to the extent of diverting the attention of such deep thinkers as Amy Coget, Ph.D., seen here preparing for class.

Then there’s the report in the Harvard Gazette of former President Derek Bok and his wife, Harvard Fellow, Sissela Bok, of their studies into happiness.

The couple is well-schooled in the topic. Derek Bok recently penned “The Politics of Happiness: What Government Can Learn From the New Research on Well-Being,” while his wife Sissela is the author of “Exploring Happiness: From Aristotle to Brain Science.”

In relating happiness to the academic realm, Derek Bok said less attention should be placed on the drive to develop a competitive workforce, and more should be geared toward creating a better-rounded education.

Developing “ skills in the workplace comes at the expense of things that make people happier, like art and music and civic engagement … exercise, sports, and athletic pursuits,” said Bok.

Why is all this brain power going into the subject of how to achieve happiness?   The only answer I could come up with is that people must feel particularly miserable lately, giving rise to this cottage industry in happiness.  

Sure, times are tough.  But they’ve been tough before.  All it took was a cute slogan (“when the going gets tough, the tough get going”) and maybe a decent song and dance movie to snap us out of it.  Then there was anti-depressants, mood elevators, to help.  Now there’s a Global Summit.  With balloons.  And no less a scholar than Derek Bok informing us that we need to develop skills to make us happier, because work is a downer. 

You might think I’m about to launch into a rant about the value of hard work, but you would be wrong.  Bok is absolutely right, though I can’t believe he wasted time studying the issue to arrive at his conclusion.  I could have told him that.

I’ve got a laundry list of things that make me happy.  It’s no mystery.  I’m very big on community service and charitable works, and I truly enjoy helping others.  Then there are my interests in both art and music, not to mention antiques.  Exercise, not so much, but that’s just me.

As this trend toward achieving happiness is gaining momentum, and since I like happiness as much as the next guy, I’ve been giving a great deal of thought as to how we, as a society, and I, as a member thereof, can help to further the agenda.  My plan is simple.  Rather than wake up tomorrow morning and resume the drudgery that comes with working for a living, perhaps I will gaze upon an Old Master while humming a cheery tune.  When the mood strikes, I will go out and find someone needy and offer them my best wishes for their finding happiness. 

But, it seems to me that their happiness will revolve around having something to eat.  That means someone has to grow or raise some food.  Someone else has to slaughter it, and another person has to move it closer to where my hungry new friend is situated. Then it has to be packaged, moved again, and cooked.  It would then fall to me to buy it and hand it to my buddy so that he can chew at will.  Ah, then I’ll achieve happiness.

All the people along the supply chain, however, might not be nearly as happy as I am.  The farmer might want to sleep late.  The trucker might want to be home with his family.  The cook, well, might not feel like cooking.  And I might not have the money to buy my new friend food if I don’t work.

There’s a disturbance in the force.

Upon further reflection, my scheme for happiness has some holes in it.  It would, without a doubt, be just wonderful if we could limit ourselves to doing the things that make us happy.  Maybe even do some things that don’t, if only to support our happiness.  Except that there’s much to be done just to put a morsel in my hungry friend’s mouth.  The crops won’t wait until the farmer feels like doing the extremely difficult, unpleasant and time consuming work of farming.  The rancher’s herd gets hungry, just like our children, and won’t wait until he’s done being happy to feed them, just like our children. 

Happiness comes with a price.  It requires work to make it possible, since all the components that go into our happy lives have to be performed by someone, and that means one person’s happiness comes at the expense of another’s.  But even our happiness isn’t free.  Other than Maynard G. Krebs, few among us are able to indulge our happiness without having to fund it or fuel it.  No one is handing it to us with a broad smile, saying “enjoy!” and walking away.

Yet this belief that we can enjoy happiness without enduring the misery has become the trend.  It’s everywhere, a pervasive notion that life offers us a free ride if only we knew how to hop on board.  Carrying around a bunch of smiley face balloons isn’t going to cut it.  Closing your ears to harsh words and pretending everybody loves you doesn’t fool anyone.  And it’s still a tough world out there.  Just ask your kids, who have come to the realization that they will be paying for your medical care until their death absolves them from debt.

I had a talk with my kid the other day, who was feeling a bit overwhelmed by the full-frontal attack of responsibility as he stared budding adulthood in the eye.  “I’m not happy,” he told me.  He wanted to be three years old again, where his every need was taken care of and his happiness was the focus of all around him.  “Sorry, kiddo,” I explained, “but there’s no going back.”  One way or another, life catches up with all of us.”

Wearing my best Ward Cleaver smile, I explained that if he gave some hard thought to the things that mattered to him now, and put in the effort to position himself so that he could spend his days doing things that mattered, he would feel a sense of satisfaction with himself.  It wasn’t all happy, as in a day of uninterrupted videogames, but it would provide both a sense of accomplishment, which brings happiness, as well as a certain assurance of comfort, also a happiness factor.  Still, it was going to take some hard work to be happy.

I won’t be taking up Bruce Carton’s very kind offer of paying my admission to the First Annual Global Happiness Summit.  I don’t need it, and don’t think I will really like what they have to say.  More importantly, I’m pretty darn happy already.  I just don’t feel the need to broadcast it and make all those other people feel even more miserable about themselves.  My guess is that if you feel the need to go to the Summit, you’re never going to be happy no matter what. 

As any blawger who’s been at this for more than a month knows, emails start flowing in letting us know we have been “honored” by being included in some glorious list of the 100 Best, or 50 Best, or 10 Best, or whatever best of whatever they think will make us feel warm, fuzzy and important.  Unlike the emails with the subject line, “My dearest one,” they play the chord they believe no validation-denied lawyer can ignore.

The email itself is clear. that your blog has been “selected” for their list of the 100 best blogs on criminal justice.  To the new blogger, this comes as a pleasant surprise.  You didn’t know anybody was watching, no less thinking that you’re one of the top 100.  Certainly there are hundred and hundreds of criminal justice blogs, and to make the top 100 is, well, something to be proud of.  Woo hoo!  I’ve made it!!!

I hate to burst your bubble, pal, but it’s just a variation on a scam, the purpose of which is to get you to post about this great “honor” and link back to the source, usually some website with a name like Criminal Justice Degrees or Court Reporter Degrees or Legal Assistant Degrees.  They are playing on your vanity, putting out lists of blogs under varying claims of greatness to entice you to give them the backlink that other websites have to steal or gain by subterfuge.  With just the slightest vanity play, many unaware lawyers will hand them Google Juice and thank them for the opportunity.

Sucker. 

In the past week, Doug Berman posted about such a scam list, The 50 Best Blogs Discussing Capital Punishment (fear not, it’s a no follow link), which he called an “effective and telling compilation.”  Lawprofs are particularly susceptible to this scam, as they are in constant need of the affirmation of worthiness that comes from Ivory Tower isolation.  But they aren’t the only ones.  I recall David Lat at Above the Law posting about being “honored” by one of these scam websites.  He was all ferklempt about it, and I feel just awful about not being able to find the link at the moment.  But if memory serves, ATL made the list of 100 Best Blogs that describe the breasts of Article III judges.  Such an honor, right?

Berman’s point in linking to the post wasn’t to show appreciation at being flattered, but to note how many of the 50 blogs discussing capital punishment supported one side or the other.  This presupposes that it’s a real list, where someone vetted the blogs for substance and worthiness, as opposed to a quick Google search to find the 50 blogs with highest pagerank.

I call the list telling because only three of the linked blogs are listed as pro-death penalty, eight are listed as neutral (including this one), and 39 are anti-death penalty.

Making Doug’s posting about this scam list even funnier is how his pals at Crime & Consequence , where there is no crime unworthy of execution (Bill Otis may dispute this, citing something like jay-walking), have played into the hands of the scammer by repeating the link to make a point.

The reason I bring this up is to re-inforce a theme I have sounded before, namely, that there is a yawning gap between the views of ordinary citizens and those who take themselves to be  —  and sometimes actually are  —  the elite.  On the death penalty and many other things, the media and the academy are way out of step with the public.  This has a number of effects:  It allows elite-run institutions, courts among them, to get away with circumventing rules that normal people would think ought to apply to them.  It distorts the public debate.  And it creates distrust among the the governed about the intentions and fidelity of those doing the governing.

The latter effect seems to me to be closely akin to what has given rise to the Tea Party movement.  In less than five weeks, we may get the public’s verdict about the elite’s massive and sneering condescension.  My prediction:  For the elites, it ain’t gonna be pretty.

Bill got suckered.  Notice how one scam post drew in a lawprof, who took it as a meaningful list that was indicative of something rather than a scam for the easily flattered and unwary, which then slipped way down the hill to prove that lawprofs (or the Elites, as Otis calls them) have lost touch with the public who, like Otis, enjoy a good execution like nobody’s business?  Way to slide, Bill.

Unfortunately, party-pooper Kent Scheidegger, co-blogger with Otis, points out in the first comment that the list is a meaningless scam.

The same site also lists C&C among the top 50 criminal defense blogs. Really.

Kent got it.  Bill, not so much.  Sucker.  In case you’re wondering, SJ was on that list as well.  So too was The Common Scold, which has zero to do with criminal defense, as well as How Appealing, Howard Bashman’s daily aggregation of law stories in the newspapers.  Add these to some dead and worthless blogs on the list and you get the point.  The list is a joke, but the scam still catches its share of the unwary.

While these scam lists, working their magic of flattering those in need of evidence that they aren’t the ugly baby they think they are, are meaningless when it comes to proving your worth, they do serve the purpose of letting the rest of us know that others are so blind, pathetic or unaware that they post the link, bask in the “honor” and otherwise discuss it as if it was real. 

Sucker.

If there is one thing that a curmudgeon doesn’t get, it’s “cool.”  And there is nothing other than “cool” that distinguishes the online winner from everything else.  For an admitted dilettante, The Social Network shows on the screen what we could never see on our own.

This movie is spectacular in every respect.  The story, the acting, the understanding of geek cool combined with human nature and frailty.  And, as if to make this curmudgeon smile, a narrative wrapped up in depositions for the two lawsuits against core founder of Facebook, Mark Zuckerberg.  It’s like an island for old men in a sea of youthful geekiness.

Jesse Eisenberg stars as Zuckerberg, and never falters in the performance. He plays the computer geek with poignant awkwardness and distraction, all while wearing those ridiculous looking Adidas sandals, even in the snow.  You can feel his focus, the hero-worshipping adoration of Napster founder (and loser) Sean Parker, played by former teeny-bopper idol Justin Timberlake, who not only gives an incredible performance but has matured into an actor who will be a force for many years to come.

Watching the story unfold taught me how, in an age that gives real meaning to overnight success, an idea with no greater merit than “it’s fun,” influenced to some greater or lesser extent by a bit of elitism, can produce a monster success or worthless triviality. 

In contrast to Zuckerberg’s geek was the old-guard money and jock Ivy elitism of the Winklevi (don’t ask, the movie will explain this) whose lame idea to get chicks and limited grasp gave rise to their suing Zuckerberg.  So too did Eduardo Saverin, except he was indeed a co-founder, as well as Zuckerberg’s best friend, who was unceremoniously ousted after Napster failure Parker caught hold of the intersection between geek and playboy.  Saverin, who stood by Zuckerberg when no one else could stand to be near him, bore the brunt of the crash.

Even the lawyering scenes, which were nothing more than a means of telling the story, were fun.  Zuckerberg’s snarky comments and answers during depositions were hysterically funny, particularly after the question of whether Saverin’s investment in the enterprise, consisting of $1,000 and $18,000, amounted to $19,000.  Zuckerberg interrupts, saying let me verify that. After a few scribbles, he announces that he comes up with the same number.  He reduces some of our more mind-numbing affectations to some well-deserved laughs, though be careful about the effect this will have on youth looking for yet another excuse to make fun of us.  Just because we may deserve it doesn’t mean we have to like it.

It was my misfortune that neither Klout nor the studio sought out my review of this movie, as I had to both buy tickets and pay for my own popcorn (which, I might add, was not stale this time).  But it was well worth it.  This was the best movie I’ve seen in a very long time, not only for its entertainment value, but for its ability to make a codger like me see and feel what went on in the mind of a kid who is younger than my favorite pair of shoes.

Recognizing the inexplicable impact my reviews have on media (noting that I was the only one to pan the Fox TV show Lone Star, which was canceled after the showing of a mere two episodes, while all the real TV critics hailed it as the greatest thing since Family Guy), this movie is worth both the time to see it as well as the ridiculous prices they charge these days for mediocre surround sound at the multiplex. 

See this movie.  See it now.  Expect at least three Academy Award nominations out of it, Best Actor, Best Supporting Actor, Best Screenplay.  This movie is that good.

At first, I was surprised and impressed by the essays that appeared as “finalists” for the ABA Journal Legal Rebels contest.  Hey, with a $5,000 prize at stake, and a bunch of lawyers happy to write a thousand words for far less, it was a great opportunity.  The theme for the essays was “What innovation will be most valuable to you in your future practice as a solo practitioner?”  

I was blown away by the thoughtfulness of the essays that came in fifth and fourth. Not so the third and second.  A trend was developing, and its culmination, the winner of the contest, did not stray. 

The innovation that will be most valuable to me as a solo practitioner in the future is a system to integrate incoming telephone calls with outgoing voice mail messages and also allow full interaction with knowing immediate availability and scheduling future appointments.

Voicemail on steroids?  Possibly the most counterproductive, impersonal, ineffective tool in the arsenal of weapons separating one human being from another, receives the ABA Journal’s highest honor?  What a dream world, where lawyers need no longer have actual contact with clients and can use technology to pretend to cater to their clients’ needs without the need for actual communication.

The lawyer joke is that practicing law would be fun, if only we didn’t have to deal with clients.  The client joke, of course, is that the law might be useful, if only they didn’t have to deal with lawyers.

The third component of this innovation will allow existing clients to automatically schedule phone calls or in-person meetings at your office through the integration of your telephone and your electronic calendar software. If you are not available when an existing client calls, then in lieu of them leaving a voice mail message, they will have the option of entering their client number and their passcode (which you would have e-mailed to them previously) and the system would provide them with limited access to your electronic calendar software. They could enter the date and time that they would like to meet with you along with the estimated time needed for the appointment and the system will tell them if you are available at that time. If you are not available, then the system would tell them the next available time and date, and they would have the option of accepting this appointment and then indicating whether this was an in-person meeting or a phone call.

How wonderfully routine and convenient.  Except that it demonstrates the antithesis of client service.  Emergency?  A week from Tuesday.  A serious question?  Whenever.  The ten minute meeting for nothing, or for a serious discussion that requires two hours.  It’s all about what’s good for the lawyer, only appearing convenient to the client, because everyone knows how much clients want to be reduced to numbers and passcodes.

One of the “advantages” of this system is that it gives clients “a more personalized voice mail greeting.”  Is this what we have to look forward to in the future, a more personalized greeting as a substitute for a person? 

The ABA Journal has long been fanatical about technology for its own sake, promoting the tool without regard to the mechanic.  There’s no indication of thought imposed on its elevation of the shiniest new toy over such non-rebellious means as competence, ethics and old-fashioned client service.  Whatever happened to promoting lawyers who return phone calls promptly?  Way too low-tech for the digital world.  If it can’t be plugged in, it’s not worth spit.

But the question that keeps cropping up is why the ABA Journal persists in its course of blindly favoring any technological “solution” over a future of hard work and service to clients?  My guess is it’s information overload, the stress that comes of far too many voices singing the hosannas of technology without consideration of where it fits in the role lawyers should play.  It has become impossible to hear the voices of clients over the cacophony of the digital choir, or their crying at their lawyers’ failure to care about how they are being increasingly marginalized in our adoration of technology.

Can Molly McDonough see clearly with the blinding glare of the iPad in her eye?  Please, Ed Adams, give Molly some time off.  She’s a good woman, but no mere mortal can handle the stress.  This is the ABA Journal, and whether you like it or not, it carries with it the cache of the American Bar Association, leading lawyers astray for more than a century^TM.  I’m not a Luddite.  I have a computer and know (somewhat) how to use it, but if the ABA Journal can’t remember that the client is the star of the show, that’s a problem.  I’m sure this would have been Molly’s foremost thought if only she had some time to recharge after the Legal Rebels summer cross country tour.  Come on, Ed.  Do it for Molly.  She deserves it.

Congratulations to the winner of the essay contest.  You may need that $5 grand when your clients figure out that the innovation you think is most important for the future revolves around a more personal voicemail greeting.  Press 1 if you disagree.

Am I beating a dead horse?  To some, no doubt, but given the importance of the point, and the refusal of so many to acknowledge it or think it applies to them, combined with the ever-increasing pervasiveness of technological means, it’s going to bite us all in the butt soon enough. 

There’s a new contender in the online utterance search to determine what each of us has to say, this time bringing “pre-crime” to the Human Resources Department.

While background checks, which mainly look for a criminal record, and even credit checks have become more common, Social Intelligence is the first company that I’m aware of that systematically trolls social networks for evidence of bad character.

Using automation software that slogs through Facebook, Twitter, Flickr, YouTube, LinkedIn, blogs, and “thousands of other sources,” the company develops a report on the “real you” — not the carefully crafted you in your resume. The service is called Social Intelligence Hiring. The company promises a 48-hour turn-around.

This is the part that so many just can’t seem to grasp.  You want to believe that you’re only responsible for your “official” statements online, while twitting and blogging whatever idiocy you think is fun, cool or, in the case of some indiscriminate folks, trying to manipulate others to think you’re the ginchiest guy on the internet. 

Feigning friendliness to obtain the validation one’s been denied in real life can lead people to do incredibly foolish things, and both the blogosphere and twitter are about nothing if not collecting friends to the weak and pathetic soul.  It’s understandable that people seek faux friendship and affirmation, but at what price?

The reports feature a visual snapshot of what kind of person you are, evaluating you in categories like “Poor Judgment,” “Gangs,” “Drugs and Drug Lingo” and “Demonstrating Potentially Violent Behavior.” The company mines for rich nuggets of raw sewage in the form of racy photos, unguarded commentary about drugs and alcohol and much more.

“Rich nuggets of raw sewage” may be the best description I’ve read of the phenomenon. So much more is learned from the unguarded throw-away comments than the ones carefully crafted to promote the image we want others to see.  How hard is this to understand?

The trend is clear, that bots and algorithms are the wave of the future, finding and using the information tossed about mindlessly online to create an image of us for anyone who cares to look.  As Frank Pasquale notes at Concurring Opinions, there’s no due process component to all this.  People will be using our information, assessing us, without our knowledge.  So many of you respond, “Hah! Who cares. Screw ’em.”  Screw who?  Your adversary, your client, your potential client, your juror? 

To so many who use these techno-tools as a substitute for love, you keep contending that it’s just not serious.  Saying so doesn’t make it so.  It’s never serious, until it is.  It’s never a problem, until it is.  And when it is, you are likely to be unaware of it, since the folks checking up on you won’t be alerting you to their doings, or chatting you up about what they’ve found.  You’ll never know who you’ve hurt, even if it’s yourself, or the damage done.  In the best of worlds, the only person you’ve harmed is yourself, because if you’re selfish enough to mindlessly (or manipulatively) spew rich nuggets of raw sewage, then you’ve caused your own problems.

But to damage others, especially your clients, in the process is inexcusable.  There is never a need to post a funny, cool or impressive twit that trumps the interest of your clients.  This online ego boost is trivial compared with the time in prison another may serve for your playing internet bigshot and gaining a couple of admirers.

Key to understanding this is that you don’t know, YOU DON’T KNOW, what you write that may give up a piece of the puzzle that someone else needs or can use to burn someone.  None of us are capable of the self-assessment necessary to appreciate what bit of information another person needs to form an opinion or determine action.  We cannot see the line not to be crossed that others see, no matter how smart we think we are or how hard we argue to the contrary.

My pal Turk posted a review of the arguments about inappropriate twitting that included a line by Norm Pattis that I had forgotten about, following his decision to become the poster boy for inappropriate client revelations.

Or, to put it another way, beware the asshat masquerading as ethicist.

This line wasn’t written about me, but it could have been. Ignore his reduction of opposing views to an ad hominem, and consider instead that a lawyer of some experience in the courtroom, and little online, insists on his right to expose himself and his clients for the selfishness of online popularity.  Rather than help his collection of baby lawyers to understand their responsibility to their clients, this elevates narcissism over duty and sound judgment.  Even experience falters in the face of online validation, the opium of the twitterers and blawgers in search of a coterie of adoring fans.

The movie MInority Report predicted it, and I’ve already raised it here, here and here, and a few other places as well but it’s not worth the time to find them.  The point is that our online utterances are easily discoverable, and the interest in doing so is sufficient that an industry has been created for this specific purpose.  Even though I’ve heard many poo-poo the notion that anyone cares what they have to say, what they twit, what they blog, you don’t know who is looking, who is reading, who is collecting your unguarded writings. 

Stop spewing rich nuggets of raw sewage.  Your clients won’t think better of you because you weren’t disciplined for it as they sit in the prison cells wondering what went wrong.

It’s my plan to keep beating this horse until the point is made.  Sorry if this bores you.

The case of New York lawyer Raphael Golb was bizarre from the start.  It was a fight over scholarship, with Golb going underground when his father, a University of Chicago professor, was frozen out of the scholarly conversation about the Dead Sea Scrolls.  It was a ridiculous case to try.

Remember those funny parodies, where wags would scarf up names like Eric Holder and post all manner of things that would be very embarrassing, but for the fact that everyone knew them to be a game played by online jokesters?  Not so funny now, eh?  Of course, Eric Holder isn’t Lawrence Schiffman, and would likely laugh at the meme.  Schiffman apparently can’t take a joke.

The bad news is, Raphael Golb was convicted.

A scholar’s son was convicted Thursday of using online aliases to harass and discredit his father’s detractors in a heated academic debate over the origins of the Dead Sea Scrolls.

A Manhattan jury found Raphael Golb guilty of 30 counts against him, including identity theft, forgery and harassment. He was acquitted of one count of criminal impersonation.

Stupid thing to do? Absolutely, but consider its implications for all the rest of the comedians, the angry people, the snarks, the jokesters.  This is your boat, kids.  But what about the harm, you ask?  Doesn’t impersonation require that there be some damage, some monetary gain, something?

District Attorney Cyrus R. Vance said stealing money isn’t the only type of identity fraud.

“Using fictitious identities to impersonate victims is not what open academic debate seeks to foster,” he said.

Say what?  Cy, good buddy, those two statements don’t go together.  You aren’t the arbiter of academic debate, and there’s no crime of unfostering.  Identity fraud requires that something be stolen, that someone be harmed.  When we do away with harm, and substitute empty rhetoric in its place, all the really funny jokesters are just as guilty.  And there are a lot of really funny (though some are brutal as well) people on the internet. 

My old friend Ron Kuby, Golb’s lawyer, is of the view that there was much to be desired about the trial; legal issues that were put off to trial, then never actually decided because Judge Carol Berkman said she had already denied them.  The whole First Amendment aspect of the case fell through the cracks this way.  I can’t say for sure, but I don’t think Judge Berkman has a facebook page.  Ron wasn’t impressed  by the alleged harm done here.

“Today what happened was the district attorney of New York County and the trial court made hurting somebody’s feelings a criminal act,” defense lawyer Ronald Kuby said. “In New York, hurting people’s feelings or being annoying is not a crime. We call that Monday.”

Or Friday, as the case may be. 

Much like the Lori Drew prosecution, ultimately tossed for lack of a crime, this was a case that should never have been prosecuted.  NYU professor Lawrence Schiffman, the putative victim of Golb’s impersonation, claimed that he didn’t want Golb prosecuted.  Yet after the verdict, he has this to say:

He said in a statement Thursday that he was appreciative of the work on the case.

“Let us hope that the field of Dead Sea Scrolls research can get back to its real business — interpreting the ancient scrolls and explaining their significance for the history of Judaism and the background of early Christianity,” he said.

He’s disgraced himself amongst the Dead Sea Scroll scholars by using a criminal prosecution to shut down his most vocal critic.  He’s now disgraced himself again within the academic community by ignoring that the issue arose from his having shut out Norman Golb from the scholarly dialogue, even denying Golb access to the scrolls lest he find something that undercuts Schiffman’s claims.

For those of us less concerned with the Dead Sea Scrolls per se (though who isn’t, really), the implications of this conviction are broad and disastrous.  If playing with a sockpuppet on the internet, no harm done beyond some hurt feelings, is enough to land you in prison, we’ve got a lot of potential felons out there taking some major risks for a few laughs or to get the upper hand in an argument. 

The rough and tumble of the internet is no longer an issue of free speech, but hurt feelings.  Read it and weep.  We are all in some serious trouble now.

From the New York Times’ feature, Op-Ed at 40 :

Goings On in the Barnyard

By E. B. WHITE, August 15, 1973

When The Times asked me to report on what’s being said in my barnyard about Watergate, I immediately sought an audience with the goose. She is sore at me at the moment but is always willing to talk.

ME What is your feeling about Liddy?

GOOSE G. Gordon? One of the greats — a man of enormous verve, a bungler of immense promise. Liddy should be president.

ME Should Nixon resign?

GOOSE Yes. He should resign in favor of Liddy, who is one of the greats. Liddy carries a gun, which is what the Oval Room needs.

ME But Liddy is in jail.

GOOSE I know that, and the jail has been revitalized by his presence. The inmates love him.

ME Do you think justice was obstructed?

GOOSE Of course. Justice was obstructed along with everything else. The purpose of the executive branch is to obstruct. That’s why we need Liddy in there.

                    E. B. WHITE was the author of “Charlotte’s Web.” He died in 1985.

I don’t remember this op-ed from 1973.  Of course, in 1973, I didn’t spend much time reading op-eds, so my not remembering it comes as no surprise.  But I wish I had read it.

Today, it reminds me of the way we viewed the executive branch of government, with all the power of the Gulf of Tonkin Resolution and the imperial uniforms of the White House guards.  The harder Tricky Dick pushed his power, the harder some of us pushed back.  America, love it or leave it.  There was the silent majority long before the moral majority, and Richard Milhous Nixon was their leader.  We had long hair, love beads and went around barefooted. 

The purpose of the executive branch is to obstruct justice.  Back then, it would have sounded like a nefarious threat.  It makes more sense to me now.  Back then, it would have been a reason to riot.  Now, it clarifies what needs to be done.  The power of the Presidency is fiat, unilaterally focused on accomplishing whatever comprises its agenda.  On good days, it will benefit the people.  On bad days, Dick will rub his hands together with glee.  On many days, it won’t be quite clear whether they are good or bad.  It’s all according to who you talk to. 

But no matter which day it is, the purpose of the executive branch is to be effective, to obstruct justice.  It’s the purpose of the judicial branch to catch those functioning under the executive branch, those obstructing justice, and stop them.  Perhaps this is what’s meant by the phrase “Officer of the Court.”  This is our job.

I miss E.B. White.

The real story came out because of the diligence of Kansas City Police Detective Max Seiffert.  It started with a road rage incident.  From the Kansas City Star :

While in the latter parts of a post this morning, the power went out.  It happens with some regularly around here due to an abundance of old trees.  We love our trees, but they are very needy.  And when they fall, they often take power with them.  That’s the price of green.

I had some great posts, thing that really mattered, running through my head and coming out my fingers, but the time to write is past and other work demands my attention.  To those who inquired about my lack of posts, rumors of my death have been greatly exaggerated.  I’m still here.  Thank you for your concern.

Anyone disappointed by my lack of fodder this morning can leave me a comment and request their money back.  Don’t worry, you won’t hurt my feelings.

Update:  The first post this morning was about the suicide of Rutgers freshman, Tyler Clementi.

It started with a Twitter message on Sept. 19: “Roommate asked for the room till midnight. I went into molly’s room and turned on my webcam. I saw him making out with a dude. Yay.”

Clementi’s roomate, 18 year old Dharun Ravi, probably thought this was just hysterically funny at the time. I bet he doesn’t now.  As the young set has informed me, everything on the internet is just for fun.  Stop taking it so seriously. 

My second post was about Bennett’s post, Today Only? Negotiating pleas isn’t for the squeamish, and if someone can bulldoze you into a plea by using the “today only” ploy, chances are you don’t have the guts for this work.  On the other hand, know your adversary, including the judge.  With some people, “today only” means exactly that, and they will cut off their nose to spite their face just to keep their word. 

It’s not a job for the gutless, but better to know up front whether the person making the pitch is going to live with the consequences.  If you don’t know, it will be your client living with the consequences, whether they want to or not.