To listen to the fans of social media, it’s highest and best use is to trumpet your accomplishments so everyone can marvel at how fabulous you are.  Criminal defense lawyers have not only fallen into line with the use of social media as self-promotion, but some have gone so far as to give updates of their daily activities, no concern whatsoever of what information they’re giving up and whose lives they’re damaging in the process. 

But when Mark O’Mara started the George Zimmerman social media machine, contending that it would “irresponsible” to do otherwise, it gave me serious pause.  For decades, I’ve been doing it all wrong.

More than a decade ago, a guy sat down in my office chair to tell me about an investigation into a nationally renown non-profit for financial impropriety.  There were two primary targets of the investigation, and he was one.  The investigation eventually resulted in a big story in the media, one that rocked their niche. 

The other target was prominently named, and his lawyers gave press conferences and took calls from reporters.  No one, to this day, knows the name of my client outside of a very small circle of friends.  It was never mentioned in a single media report. He was not charged. He was not prosecuted. He continues to live his life in obscurity.  He couldn’t be happier.

To the extent humanly possible, my efforts have been directed at never handling a “high profile” case.  It’s not that the underlying cases weren’t newsworthy, but that a critical aspect of my responsibility was to prevent the handsome face of my client from ever appearing in the media.  Once that happens, their lives are changed, often ruined, no matter what the outcome of the case. Careers are destroyed. Futures lost.

It’s not that there aren’t opportunities to make a huge splash. Rumors of investigations spread, and calls from reporters come in.  Handling the calls is an art.  For some, the art is how to make sure your name is spelled right and your face makes it to page one, above the fold. For me, it was to kill the story, quash the rumors.  Nobody wants a boring story. Nobody wants a non-story.

There are times when you can’t stop the story, when the news has already broken and story is out there.  The question then is whether to feed the news cycle or do everything in your power to make it fade away.  There is always another huge story right around the corner, and memories are fleeting.  A small blurb on page 39 for one day is quickly forgotten, and if there is nothing interesting to write about, then chances are improved that it will never see a second story.

Or there can be a press conference, announcements, photo ops. Say something fascinating, controversial.  The reporters will hang on your every word.  For at least the few minutes while your story is top dog, you will feel like the most important person in the world.  You tell your client that you’re doing this all for him, to fight for him in the court of public opinion.  To salvage his reputation.  To protect him from the harsh words of the media.  And he will believe you as he watches his life ruined by the coverage of the worst experience in his life.  He trusts that you are doing the right thing, as you start to make calls to once-interested reporters who have moved on to other stories to tell them about what you plan to do next in your very fascinating case.

We’re experiencing a paradigm shift, where lawyers feel emboldened to promote themselves at every possible opportunity, even though it comes at the expense of their clients.  It’s almost inconceivable that a lawyer would do everything in his power to avoid publicity, the chance to get his name out there, to protect his client from the glare of the bright lights.  Isn’t this what we all want, to turn ourselves into momentary celebrities so that we can tell all our twitter followers what big time lawyers we are?

At Not Guilty, Mirriam Seddiq broke her silence the other and wrote:

If I had a dollar every time someone said to me “you must have some interesting stories” I’d have a whole lotta dollars. Probably like 20. Or maybe even 30. Oddly enough, I never tell anyone any of my stories. They are too personal and, for those of you criminal defense lawyers out there this comes as no surprise, they actually aren’t all that interesting. Or, the parts I think are interesting are probably not interesting to regular people.

No.  Not our team. Not the team of defense lawyers who try to keep a smile on their face and a positive attitude in the face of impending doom. But much to the surprise of defendants and the public, judges regularly become a cog in the wheels of prosecution, though it’s not necessarily as nefarious as it may sound.

After all, long before any defendant is arrested and any defense lawyer is retained, warrants get signed, ten day reports are submitted and, eventually lengthy and detailed discussions take place involving how many defendant will be shuffled through the courtroom in chains.  There needs to be a sufficient number of lawyers on call, since they can’t be arraigned without counsel.

There are logistics to manage throughout the courthouse, and they don’t happen by accident. It takes planning and forethought, both on the prosecution’s end as well as the court’s.  Did you think it was magic? Kismet? It’s no accident that the call went out to round up every CJA lawyer in town.

In an article in the National Law Journal, Alan Dershowitz and Ronald Rotunda  write about the notorious Agriprocessors take down in Iowa, where 600 riot-ready ICE agents and a Blackhawk chopper swooped in to capture 389 food workers in hairnets.  It was a glorious victory for law enforcement. 

The Big Boss of this heinous Kosher criminal conspiracy, Sholom Rubashkin, had to go down, which turned out not to be as easy as it seemed.  Trying every imaginable variation on a crime, the feds finally nailed Rubashkin on a hypertechnical bank fraud charge for certifying to his bank that his business was absolultely legit, when in fact there was a sneaky illegal working inside. Got him!  Iowa charged Rubashkin with over 9,000 offenses, and couldn’t nail down a single one.

Rubashkin was sentenced by federal Judge Linda Reade to 27 years, two more than the government sought.  Up to now, it sounds like a typical federal case, routinely unfair and absurdly disproportionate. Nothing to see here.  And then this:

But Reade did more than impose a disproportionate sentence. After Rubashkin’s conviction and sentence, defense lawyers learned that Reade, over a six-month period, had been actively engaged in planning the Agriprocessors raid. E-mails and affidavits showed that, long before the raid occurred, Reade met with ICE agents to discuss “charging strategies, numbers of anticipated arrests and prosecutions, logistics, the movement of detainees, and other issues related” to the investigation and operation. At one meeting, which law-enforcement personnel attended at the judge’s request, the judge stated that she was “willing to support the operation in any way possible, to include staffing and scheduling.” She was essentially part of the prosecution team.

The Supreme Court should decide to hear this case and use it as a vehicle to examine cozy relations between a prosecution that was too zealous and a judge who was too involved in pretrial prosecution strategies. The Iowa legal director of the American Civil Liberties Union, one of the groups that filed an amicus brief on behalf of Rubashkin, warned that the judge’s involvement with the prosecution “immediately gave the appearance of unfairness.” It was more than appearance. It was actual unfairness.

After my lame effort to point out the silliness of thinking that a cop swearing to tell the truth means he won’t take the stand and lie, Ed at  Blawg Review sent me a link to George Carlin who, of course, says it better and funnier than I possibly could. Enjoy.

Much as I thought Mark O’Mara’s handling of the bail hearing, providing George Zimmerman an opportunity to apologize publicly for killing Trayvon Martin, was a brilliant move, I’m not nearly as clear on his latest venture.

Now, defense attorneys for George Zimmerman, the Neighborhood Watch volunteer charged in the teen’s death, have entered the virtual conversation. In an unusual move, Mark O’Mara has started a blog and accompanying Twitter and Facebook accounts to communicate directly with the public.

That’s right. Meet the new social media portal for Zimmerman, GZLegalCase.com.  It’s a new world out there, kids, and if it’s not online, it doesn’t exist.  Apparently, that’s true for high profile criminal defense as well.  Don’t all rush to friend him at once.

At least one “trial consultant” thinks this is a great idea.

“This is a brilliant move on his part,” says Amy Singer, a Gainesville-based trial consultant. By engaging the public online, “you get a lot of comments, a lot of perspectives, a lot of discussion.”

Ah, Gainesville, that hotbed of cutting edge trial consulting. You also get a massive opportunity to screw up, but it seems that went unmentioned in the quote.

Because thousands of people give their opinions unsolicited through social media, services such as Twitter can put a defense team in the enviable position of being “a fly on the wall,” Singer said, monitoring how people react to each twist and turn.

O’Mara, she said, has just taken the next logical step. By creating a Facebook and Twitter profile, “all that they’re doing is joining in the conversation” already taking place online.

Therein lies the difference, and the “next logical step” isn’t necessarily next or logical, and may well be a huge leap. Over a cliff.  A very big cliff with sharp rocks at the bottom.

It’s one thing to monitor what “thousands of people” are twitting. It’s another, entirely, to affirmative put in writing on the internet assertions that relate to a legal proceeding.  Monitoring holds no risk, though it is no doubt a nightmare reading the nonsense and ignorance floating across your screen and not wanting to scream at the people who either get the facts all wrong (at least from your perspective) or offer opinions that are just mind-numbingly stupid.  But then, this could be your jury pool and, for better or worse, it certainly better to know than not know.

Getting involved, however, is a commitment.  Once something is put “out there” by the defense, they live with it. There’s no denying it. There’s no explaining it. It becomes a part of the case, and they won’t know how well it plays in Peoria (and eventually in Sanford, Florida), until the furor dies down.

This is a very risky proposition.

Acknowledging that the decision to take this route is “controversial,” today’s post states:

Using social media in a high-profile lawsuit is new, and relatively unprecedented, but that is only because social media itself is relatively new. We repeat our contention that social media in this day and age cannot be ignored, and it would be, in fact, irresponsible to ignore the robust online conversation.

Mind you, it’s unsigned, and, if O’Mara is as smart as I believe, written by someone substantially more social media savvy than he. Still, it’s attributable to him, and there is absolutely no plausible deniability.  Already, the posts seem to be subtly inconsistent, as two days ago, O’Mara explained that one of the purposes of his blog was to “dispute misinformation.”  Yet in today’s post, he writes:

We Will Not Use Our Online Presence As A Vehicle For Dissemination Of, Nor Will We Comment On Any Evidence Regarding this Case

One of our core objectives is to discourage speculation regarding the facts and evidence of the case. We commit to avoid even the appearance of any impropriety regarding information traveling through our website and social media profiles which could, in any way affect the proper presentation of the case where it is to be tried — in a courtroom. An example of that commitment is our evolving rules regarding the moderation of comments posted. We intend to remain very conservative in limiting such conversations so as to avoid any possible negative impact on the criminal justice system.

That didn’t take long. How exactly one disputes misinformation without commenting on information is a bit of a mystery.

The rationale du jour is that the “online presence” will serve to deal with the “enormity” of the public reaction to the Trayvon Martin killing. 

Our online presence was created in response to the enormity of interest which has inundated the firm since our first day of involvement. Literally hundreds of emails and phone calls came in within hours of our announcement regarding our representation of Mr. Zimmerman. It became readily apparent that an alternative forum was necessary to handle the high volume of interest we receive.

Social media is the obvious answer.

While I have no doubt that social media marketers and sycophants will adore this notion, I’m not buying. The best thing for George Zimmerman is to let the media interest die out, fade away and move on to the next biggest legal story ever in the history of the world. There will be another story tomorrow. There always is, and it pushes Zimmerman to the back page, below the fold.  It may not quite go away, but the lower the volume the better for Zimmerman.

This seems to be quite a different approach, as if they are courting continued media interest, doing everything possible to keep the profile of this case as high as possible.  Rather than quiet the lynch mob, they are encouraging it. How is this good for Zimmerman?

My suspicion is that this has nothing to do with Zimmerman, per se, but is a vehicle for legal defense donations. As usual, high profile defendants rarely have any money for counsel, and it can take a ton of time to court the media, if one is so inclined. Of course, if you just ignore the media, it takes no time at all.

The Zimmerman contingent has received donations of about $200,000 so far, which is being used to pay O’Mara as well as cover Zimmerman’s “living expenses.” This money came directly to Zimmerman, however, with no strings attached. I suspect O’Mara would prefer the money went to his paypal account instead.

While the rhetoric surrounding this “controversial” use of social media seems designed, if poorly, to appeal to people who aren’t inclined to think too hard, either about its internal consistency or the validity of the rationales, the bigger question will be whether O’Mara is sufficiently media savvy, and internet savvy, not to have this explode in his face. Based on what I’ve read thus far, I wouldn’t bet on it.

In a decision that only a legal apologist or circuit judge could love, the 8th Circuit in  U.S. v. Vega pulled a breathtaking move and twice screwed the defendant without breaking a sweat.  Via Federal Evidence Review, the Court upheld a drug conviction where the government was allowed to use prior bad act evidence for which the defendant had been acquitted, but denied the defendant to introduce the fact that he had been acquitted.

Cool, huh?

The defendant argued that the prejudice of the acquitted conduct, which the government introduced under F.R.E. 404(b), far exceeded it’s probative value.  This seems almost definitional to those of us who are not slaves to the proposition that anything serving to convict is inherently admissible, but not to Judge Smith, who wrote the opinion.

The key to the Circuit’s decision is that one of the foundational requirements for admissibility under 404(b) is that the bad acts need only be shown by a preponderance of the evidence, whereas a conviction requires proof beyond a reasonable doubt.  Just because the defendant was acquitted, therefore, doesn’t mean that it wasn’t more likely than not that he committed the criminal conduct.

What makes this more astounding is that this was all presented in the first trial, where the jury acquitted on the first count and hung on the second. At the second trial, the jury was presented with the 404(b) from the first, but only asked to decide the second.  And the defendant was precluded from telling the jury that he had already been acquitted.

…although a judgment of acquittal is relevant with respect to the issues of double jeopardy and collateral estoppel, once it is determined that these pleas in bar have been rejected, a judgment of acquittal is not usually admissible to rebut inferences that may be drawn from the evidence that was admitted.

“[T]wo primary reasons” exist as to “why a judgment of acquittal is not generally admissible to rebut inferences that may be drawn from evidence that was the basis of a previous trial.” The first reason is that “judgments of acquittal are hearsay.” The second reason is that “judgments of acquittal are not generally relevant, because they do not prove innocence; they simply show that the government did not meet its burden of proving guilt beyond a reasonable doubt.”

Trial is scheduled to begin today for 22 protesters of New York Police Department’s notorious “stop and frisk” policy, in which hundreds of thousands of people are routinely stopped on the streets for spurious reasons, most of which have to do with skin color.  Lawyers for the protesters will argue a justification defense. It’s not likely to work.

In an op-ed, Brent Staples writes in the  New York Times of the cost of zero-tolerance toward marijuana arrests.  Most are trivial, even non-criminal but for the NYPDs trick of charging a public display after they take the pot out of a person’s pocket where it wasn’t on display. Many of the cases are eventually dismissed, under what New York calls an “adjournment in contemplation of dismissal.”  though the record of the ACD remains. Many of those arrested flow from the notorious stop and frisk policy.

For many, this means that New York City has a massive population of people with some criminal record, some “smirch” that appears, whether because of a garbage bust, an error in record keeping (it seems that the nice folks who input criminal history stuff are much more diligent about putting bad stuff into the computer than taking it out when the bad stuff turns out to be wrong; same with warrants) or payback from some cop to whom you failed to show sufficient respect during the course of a baseless yet humiliating rousting.

The upshot is that employment forms, which invariably include that little box to be checked which inquires whether you’ve ever been convicted of a crime, mean that a great many New Yorkers (which similarly means a great many whoever and wherever you are) will never find gainful employment.  Add to the little box effect that many corps run background checks through companies that search the internet for bad things you’ve done, whether true or false, and there remains a sub rosa prohibition on employment for very bad reasons, and often no reason at all. 

You were arrested for nothing? You were acquitted? You were never even prosecuted? None of that every shows. The search company reports back that you’re a criminal, and you won’t get the job.  And, you will never know why.

In another editorial, the  New York Times applauds the EEOCs “guidance” on the handling of criminal histories of applicants for employment.

The federal Equal Employment Opportunity Commission has reaffirmed and updated a 25-year-old ruling that bars companies from automatically denying employment to people based on arrest or conviction records. It is must reading for all employers.

Two developments made the new guidance necessary: computer-based arrest and conviction records — many filled with errors or containing cases that are supposed to be sealed — that make it easy for employment screeners to get and sell the reports; and the dramatic increase in the number of Americans who have been arrested for minor offenses, due to “zero tolerance” policing.

The guidance makes clear that an arrest alone is not evidence of illegal conduct or grounds for exclusion. In one hypothetical — a classic “driving while black” case — an African-American couple traveling to church in a predominantly white town are pulled over and questioned by the police. When the husband protests, he is arrested for disorderly conduct. The prosecutor declines to file charges. But when the arrest comes up on a background check, the husband is denied a promotion.

If he filed a discrimination case, the guidance says, the E.E.O.C. could find reasonable cause to believe that the employer had violated the law.

Every so often, an image appears of police using force against a person who committed a heinous crime, the sort that harms an innocent person very badly and gets any normal person’s blood boiling.  At law blogs, we take the detached view, that it’s not left to police to administer vicious punishment on the street, no matter how much we can understand the visceral reaction to the horrific conduct of such a person.  We demand that cops keep their cool, retain their self-control, bring the perp to court where guilt, even if no one seriously doubts it, is determined and then, and only then, punishment is imposed.

And then there’s the tagger.  A tagger is a graffiti “artist.” Some think of them as vandals, while others see graffiti as street art.  Some see this as a blight while others appreciate their work, if not their choice of canvas.  Few think that the tagger falls into the same category as the guy who molests a child or beats a woman.  That’s not the case for Portland Police Officer Benjamin J. Davidson.

Via Radley Balko and Boing Boing :

Police took down Dan Halsted while he was just innocently walking home. The officer stunned Halsted five times with a Taser in the back because he thought he sprayed some graffiti.

Halsted was tackled by a Portland police officer in the Northeast Portland neighborhood of Sullivan’s Gulch four years ago.

“I was walking home and all of a sudden a flashlight came on in my eyes and I stopped, and I heard a voice say, ‘Get him!’ And I heard footsteps coming at me, so I turned and I ran.”

Police had mistaken Halsted for a tagger who hit a nearby building.

“This is a police officer doing his job, under difficult circumstances in the dark, with the tools given him,” Rice said.”The level of force was brought on by Mr. Halsted when he started to run and fought with police officers.”

“The arresting officer in his police report, he made up a whole other story and said that I had been running down the street with a couple other people.”

That’s the same thing the officer testified to in court when Halsted sued. In reality Halsted had been with friends at the Rose and Thistle Restaurant and was never charged with any crime.

During the trial, the city’s attorney tried to use Halsted’s classic kung fu film collection against him, saying it proved he was violent.

While it boggles the mind to think a judge allowed this argument, the jury rejected it and awarded Halsted $206,372.70. Good verdict? Here’s how it breaks down:

$6,372.70 for medical expenses.
$75,000 in non-economic damages (pain and suffering)
$125,000 in punitive damages

While some may think that $200,000 doesn’t begin to cover what Halsted went through, and that the amount will be paid by the taxpayers of Portland, with Officer Davidson, who remains on the force, not having to waste a dime of his donut money, the award has a bit of a local contingency worthy of mention.

I was surprised to learn that under Oregon law, 60 percent of punitive damages awarded in suits like this go not to the brutality victim, but to a fund for crime victims. And another 10 percent goes to . . . a fund for Oregon state courts. Really.

As punitive damages are intended as punishment, it’s not entirely unfair that they go toward a purpose other than the victim.  On the other hand, one governmental hand giving money to another hardly strikes me as much of a punishment.

The Portland City Council approved a settlement for $258,000, covering Halsted’s legal fees as well as the amount of the verdict. 

And the worst that could be said, even assuming the cops nabbed the right perp, not lied about it, not raised one of the most ridiculous arguments possible, is that he was a tagger. The good news is that the money won’t be paid to Halsted’s estate. Other than that, Portland’s a pretty nice place.  Seriously, try the maple bacon donut at Voodoo.

At his Philly Law Blog, Jordan Rushie recounts how he went from self-absorbed law student, utterly clueless as to what he’d gotten into and where he would be heading the rest of his life, to lawyer.

Admittedly, I had no idea what lawyers did on a regular basis. I had only met small town lawyers in my neighborhood. Most of them seemed pretty interesting. My view of lawyers was shaped by John Grisham novels, Law and Order, To Kill a Mocking Bird, and A Civil Action. Law seemed like a pretty interesting profession. My goal was to get into prosecution, and then maybe become a criminal defense lawyer. That sounded cool.

Why, yes, we lawyers really are cool. Small children stare at us in awe, appreciating the cut of our suit as they once appreciated the rugged looks of a firefighter.  Cool and awesome. But then, what exactly is it that lawyers, well, do?

On my first day at the office, I was still kind of confused by what I was told by career services and what reality was. Mark Everhart’s practice consisted of him, a receptionist who he shared with other lawyers, and his paralegal. Although he was the “senior partner” this seemed a little different than what we talked about in law school. Mr. Everhart called me into his office and gave me some tasks: write a research memo about something, start to prepare a motion, and draft discovery. “Yes, Mr. Everhart. Sure thing, Mr. Everhart.” I was on my best, most formal behavior.

Later in the afternoon, Mr. Everhart called me into his office. “Listen, I know you’re excited about this job. And you should be. But stop calling me Mr. Everhart. It’s Mark. Once you get your law license we’re going to be colleagues and equals. Let’s grab a beer after work.”

Your mileage, naturally, may vary, but that isn’t the point. The point is that in the summer after his first year, Jordan got a job with a real lawyer, and this real lawyer showed him for the very first time what real lawyers do, at least in his office, on a daily basis.  And Jordan was smart enough to realize that this, in general, would be the way he would spend every working day for the rest of his life.

As it happens, Jordan met a good guy who not only showed him life as a lawyer, but went on to steer him well as a mentor.  And Jordan, in return, realized that the real world of lawyers, rather than the fiction in his head when he signed up for law school, was where he belonged.  All’s well that ends well.

Over at The Legal Whiteboard, Lawprof Bill Henderson, who started as a firefighter until he realized at his kid’s second grade Career Day how much more cool and awesome lawyers are, is doing his darndest to find ways to incorporate this transition into law school.

In retrospect, it looks pretty simple:  (1) find a convenient time for 1Ls, (2) provide pizza, (3) invite successful lawyers to talk about their careers, (4) have law faculty gently moderate, and (5) implement a modest attendence requirement tied to a 1L substantive course.

Why does this matter?  If students have better information and have a broader view of the profession–created through a balanced and well structured programming–they can make sense of the world more quickly and in turn make better decisions related to their own professional development. 

One might well wonder why this isn’t true of students applying to law school, when the biggest decision is made. But then, it’s not like law schools have any control over what silliness exists in the minds of their entering students, and if applicants are foolish enough to sign up for a career about which they know nothing more than what comes over the TV in a one-hour drama, who’s to blame?

Career Choice events were typically organized around practice settings (i.e., small firms, big firms, in-house lawyers, personal injury lawyers, prosecutors, public defenders, state agency lawyers, public interest lawyers, business and nonprofit executives, etc.) and substantive areas (IP, sports and entertainment law, international law, family law, bankruptcy, etc.)  An ideal panel would be one where the practitioners moderately disagree with each other — this is why we like having more than one lawyer in at a time.  When lawyers disagree, students have to engage their minds in order to make sense of the differing perspectives.

Though it lacks the depth and personal touch Jordan enjoyed, at least the diversity of opinion on the panels offers greater insight than a lone ranger, cheerleading his point of view.

When guest speakers are available to stay for dinner, the same alumnus also pays for dinners for speakers and three to five students.  Over the years, I have attended roughly two dozen of these meals.  Many times students tell me that the insights shared over these dinners are among the most memorable and fulfilling learning experiences of their 1L year.

There’s a message in here for lawprofs, that these meetings are so memorable and fulfilling.  Henderson gets it. The opportunity to connect with real lawyers, to have some insight, any insight, into the world they are paying a bundle for and will soon be entering, fills a huge gap in their understanding and experience. They need this connection. As hugely impressed as most lawprofs believe students must be when their scholarship is published in some law review, it doesn’t hold a candle to a chance to talk with real lawyers about the practice of law. Sure, it won’t help a lawprof get tenure or the admiration of his fellow academics, but it will help law students.

Can a law school program like Henderson’s Career Choices compensate for a lack of experience of a Jordan Rushie working for a summer in Mark Everhart’s office?  Henderson’s explanation of the evolution of the program provides a clue.  A few of the developmental “lessons”:

• Choice matters.  Students can have pretty fixed ideas on who is worth listening to.  This is a constraint.  But when students can exercise some choice on speakers, they show up with a positive attitude and higher levels of curiosity.  These positive experiences bring them back voluntarily –now, voluntary participation is well beyond the minimum.  The choice created the way for buy-in.

• Timing really matters.  Pizza is not enough to get students to give up a lunch hour.  The winning combination is lunch plus content plus a time period when students are not scrambling to read for class.  Moving from Wednesdays to Thursdays was huge for student participation–albeit it was less convenient for faculty.  We learned that faculty need to bend as much or more than students.

Coddle much?  Perhaps the lawprofs can give the students foot rubs to enhance their enjoyment and participation?   Practicing law is inherently inconvenient and occasionally unpleasant. If they can’t happily suffer some personal inconvenience in law school to find out what they’re getting into, it bodes poorly for their willingness to endure the hard work of being a lawyer.

• Respect student preferences. During the 1.0 version, we had four mandatory sessions at 4:30 on Thursday afternoons — and as a result, we were leaning heavily into a headwind.  A minority of students resented the imposition on their time; and this negativity affected the general mood of the students, which created an uphill battle for even the finest guest speakers.  It is easy to conclude what students “ought” to value.  But such judgments don’t improve the situation at hand.  The smart person accepts; the idiot insists.

I’ve added emphasis to the last sentence, because this reflects a distinction in how such a program can survive within a law school environment as opposed to the harsh lesson these students will learn in the real world.  No judge will acquiesce to the students desires.  No law firm or lawyer gives a flying crap about the students’ “general mood.”  What they eat, and whether they eat, will never be a subject of discussion.

It’s understandable that the program has been designed around the interests of law students, the better to get them to participate, even though practicing lawyers might feel the urge to smack these students for the arrogance.  For a lawprof, making it work trumps the expectation that snot-nosed kids grow up, take some responsibility for their choices and learn the things they need to learn. 

The alternative is to make this program voluntary, given at terribly inconvenient times and require students to bring in food, not only for themselves but for the lawyers who have given of their time to speak to them.  And to keep a role of dimes handy, to pass out to any students who fails to avail herself of the opportunity.

As much as I respect Bill Henderson’s efforts in trying to institutionally create the experience that these law students ought to “value,” I can’t help but wonder whether the good that comes from learning what real lawyers do is undermined by the collateral lesson that it comes at their convenience. 

Bill says the smart person accepts; the idiot insists.  Maybe the smart person avails himself of opportunity and the idiot goes home.  Of course, the object of our respective views is an entirely different person.  I wouldn’t be deeply troubled if Bill had to hand out the whole role of dimes. If a class was weeded down to one Jordan Rushie, that wouldn’t be such a bad thing.

Never before in the history of man has a lawyer letter generated more lust than Ken’s. It came as a response to an embarrassingly bad cease and desist letter, barely comprehensible, replete with errors and conceptually bizarre, and stood up for the right of some folks at Etsy to speak their mind without being subject to a lawyer’s threats.

The folks at Regretsy went bonkers.

That Ken jumped into the fray, pro bono, to stand up for commenters on the internet who appeared to be attacked by a lawyer threatening all sort of horrible things is, to say the least, admirable. Ken’s letter was somewhat long-winded (don’t worry, I already told him that privately) and routine, but it was perfectly fine work.  Not quite the stuff to make hot women drop their bloomers, and yet demands for his naked pictures abounded.  Ken tells me he thinks they were satirical because he’s a humble guy, and knows what he looks like disrobed, I’m not quite sure that’s true.

And so he had about 24 hours to enjoy the outpouring of love and admiration before the frenzy got out of control.  That’s the thing about whipping up the masses into a frenzy. It creates momentum that’s hard to stop.  While most people have a bit of fun but temper their conduct with a basic grasp of propriety, there may well be a few who either can’t control their worst impulses or are, how shall I say this, batshit crazy.

A day after the celebrations, Ken was constrained to post again. It seems that some didn’t stop at requesting nude pictures of Ken, but went on to threaten the family of the lawyer, including his child.

I stand by what I wrote in my response to the cease-and-desist letter. Nobody who reads this site is likely to doubt my commitment to freedom of expression. But allow me to be blunt: if you are the sort of person who thinks it is funny to react to this sort of situation by making threats, or targeting somebody’s kid, or engaging in harassment that crosses the line into illegal behavior, you are not a friend of free speech, and you are not my friend. You’re an enemy. 

On the internet, things have a tendency to spiral out of control without warning. As much as we anticipate that readers are reasonably normal and will conduct themselves within the parameters of propriety, it’s impossible to discount that a number of crazies who also happen to agree with general propositions are reading as well. They’re behavior may not comport with law or norms.

You want to argue? Fine. You want to criticize? Fine. You want to ridicule? Fine. But when you threaten, and if you cross the line into unlawful harassment, and if you target families of controversial figures, you’re hurting the cause you think you’re fighting for. You’re also making it easier for law enforcement, and legislatures, and courts to justify censorship. You’re a problem. And if you become my problem, I’m going to use my First Amendment rights to make you pay. You won’t enjoy it.

A valiant effort, and hopefully one that will succeed in this instance, but a very important lesson to be learned here. As much as writers (including hottie lawyers like Ken) may think it’s all fun and games on the interwebz, we never know what will catch the fancy of the crowd and go viral.  We never really know who is reading and what they will take away from it. We never really know what someone whose grasp of reality is tenuous will do.

My first reaction to the Regretsy adoration was amusement, as the idea of Ken as sex symbol gave rise to several meme possibilities that could rival lolcats.  But soon, it dawned on me that the frenzy was getting a bit uncontrolled for comfort.  Creepy was a description used as well, and indeed it was.  When I read Ken’s post trying to rein in the threats, I was not surprised.  It struck me as only a matter of time before things would boil over.

I doubt that those who threatened a child are concerned with how their actions impact the fight against censorship. I suspect they aren’t anywhere near that thoughtful or rational, as thoughtful and rational people don’t do such things.  I don’t know whether Ken’s threat to make them pay is going to change their behavior.

In fact, my concern has shifted to Ken.  Not only did he take on the responsibility of standing up for target of that awful cease and desist letter, but he’s now taken on the responsibility of telling the craziest of his adoring fans that they’re not friend of his. This is an incredibly risky thing to do, particularly as they’ve already demonstrated that they lack the sound judgment to conduct themselves appropriately and rationally. Whoever thought it was a good idea to send a video of a kids school, a disgusting and reprehensible threat, could easily shift from adoration to hatred.

Beware the love of the masses on the internet.  There are people around who are dangerous, who don’t think clearly and can’t conduct themselves lawfully and properly.  And as much as they may love you one moment, they can turn on you the next. 

That Ken took the risk of standing up to his own adoring fans who went off the deep end shows the depth of his fortitude, a very admirable trait.  I hope that it won’t come back to prove the adage that no good deed goes unpunished.  And should that happen, I hope that his friends, his admirers, of which I am one, will not let Ken stand alone.  He did the right thing, both in his response to the letter and his confronting the crazies. But he took a great risk in doing so. Don’t let Ken stand alone.

At Concurring Opinions, visiting Penn State lawprof Erica Goldberg writes about the unfortunate and intellectually bankrupt intersection between free speech and content on campus. 

Almost everyone agrees that university campuses should be bastions of free speech. Fervent disagreement, however, exists just below the surface of that statement. Depending on how values are prioritized, individuals may differ on when speech becomes harassment, when speech becomes punishable conduct, and when speech is too controversial, extreme, or offensive to be permitted in the classroom.

Scholars love free speech.  Absolutely adore it. Unless it touches on a subject they don’t like, or supports a position with which they disagree, or hurts someone’s feelings, in which case they lock arms and scream to ciminalize it. 

Goldberg, who has demonstrated a penchant for both clear thought and strong and consistent beliefs, calls it out.  After her stint at Co-Op, I’ve really come to appreciate her views, though her writing is a bit too thick and heavy for a simple trench lawyer like me, but that’s the price I pay to be a Philistine who reads scholars.

Goldberg runs through a litany of campus hypocrisy, where every time the content of speech is deemed unpleasant to delicate academic sensibilities, the vaunted right of free speech gets tossed on the funeral pyre and the campus shows up at the speaker’s door with pitchforks and torches. 

What are your first (and then your second, and third) thoughts when you hear about a UC Santa Barbara professor who emailed his students graphic photographs comparing Holocaust victims to Palestinians in Gaza? Or, what is your reaction to students in a Yale fraternity, as part of an initiation, chanting “No means yes, yes means anal” while marching around campus. Do your views change when you hear about Georgetown University denying official recognition to a pro-choice student organization because of its Catholic and Jesuit tradition?

Prior to joining Penn State Law as a Visiting Assistant Professor, I worked at the Foundation for Individual Rights in Education, an organization that spoke out against the three universities that sought to punish the UCSB professor and the Yale fraternity, and refused recognition to the H*yas for Choice. (The asterisk is because Georgetown will not permit the group to attach the term Hoyas to its name.) While at FIRE, I, a committed feminist, personally argued that the Yale fraternity’s chants did not constitute actionable harassment. Although Yale, like Georgetown, is a private university, both promise their students free speech rights.

It looks pretty ugly when someone puts it altogether in one place, right?  Perhaps one can explain it away, or pretend it doesn’t happen, relying upon the old standby “isolated incident” defense, but the reality as reflected in Goldberg’s laundry list is that it’s a pervasive problem: There is no place where speech is more at risk than on campus.  There is no group for whom the sacred cows trump free speech than academics.

Goldberg concludes by confronting the free speech hypocrisy that pervades academia head on:

It is almost irresistible to censor those with opinions one finds particularly odious or wrongheaded. That is why speech advocates are often wrongly accused of being partisan. The day that I don’t have to disassociate myself from the speech that I am defending is the day that I can stop worrying so much about the state of free speech issues on campus.

At PrawfsBlawg, Howard Wasserman recognizes the validity of Goldberg’s point (with the caveat that it’s nothing new, which of course is true but fails to address the fact that it’s not getting any better, and appears to be getting worse).  He writes:

Finally, my conclusion from Erica’s last sentence (quoted above) is that we’re never going to be able to stop worrying about the state of free speech on campus (or anywhere else for that matter). The free speech principle is inseparable from the content of the speech being protected. And not only in the political realm, but also in the legal realm. Consider how often courts, in the course of protecting especially heinous speech, find it necessary to include some disclaimer either disociating itself from the speech or taking a potshot at the speaker.

Does this suggest that all those brilliant scholars, working within those Ivy covered buildings, are just too fragile to be expected to overcome their own hypocrisy, disingenuousness and cowardice?  Are they such slaves to political correctness that their delicate ears can never hear impolite words? Are the students who suffer lives ruled by their political ideology doomed to silence?

Apparently so. 

Free speech has come under massive assault of late, with legislatures passing anti-bullying laws criminalizing speech based on hurt feelings as the latest cure-all for low self-esteem.  But nowhere is this as bad as our bastion of intellectual pretense, academia.  Campus speech codes (not to mention notions of basic due process) are at monumental risk of turning any politically incorrect utterance into cause for imposition of the academic death penalty. 

Where are the scholars who stand up for the right to speak, even if they despise the content?  Meet Erica Goldberg.  And what of the ones who shrug and say that people have always conflated the right to speak with the content, so get used to it?

It’s perfect fair, and understandable, for someone to say that they despise a speaker’s content. ideas as manifested in speech can be wonderful or reprehensible. But the solution isn’t to silence ideas you despise, but to talk back and overcome bad speech with good speech. Yes, speech can hurt someone’s feelings or denigrate a beloved ideal, but even academics can toughen up a bit and stop sacrificing free speech on the alter of happy thoughts. 

There is no excuse for this hypocrisy from those who lay claim to intellectual superiority.  Everybody does it is not an excuse.