Speech, Chilled

Johns Hopkins student Justin Park posted on Facebook an invitation to attend his fraternity’s “Halloween in the Hood” party. After the school’s director of Greek Affairs notified Park that he found the invitation to be offensive Park removed it, replacing it with another that eliminated (in Park’s estimation) the troublesome language. The second invitation played up the school’s concerns over the first, made fun of O.J. Simpson and Johnnie Cochran, and referred to Baltimore as an “HIV” pit. Members of the Hopkins’ Black Student Union attended the party and found its themes offensive. Soon thereafter the associate dean of students notified Park that he was charged with “failing to respect the rights of others,” violating the university’s anti-harassment policy, “failure to comply with the directions of a university administrator,” “conduct or a pattern of conduct that harasses a person or group,” and “intimidation.” Following a hearing Johns Hopkins suspended Park for year, required him to complete 300 hours of community service, attend a university workshop, and read twelve books and write a paper on each. Johns Hopkins also adopted a new, stricter speech code than the one Park violated, one that announces ““[r]ude, disrespectful behavior is unwelcome and will not be tolerated.” (Source: Grug Lukianoff and Will Creeley, Facing Off Over Facebook, The Phoenix, 27-Feb-2007) [Lukianoff and Creeley are the president and senior program officer, respectively, of the Foundation of Individual Rights in Education]

Johns Hopkins is a private institution. The First Amendment does not apply to its speech-limiting actions. It is free to establish and enforce a code of acceptable speech according to its internal disciplinary policies. This is not a First Amendment case, but it is a free speech case.

University speech codes are an abomination. In theory a speech code can help shield a school from liability for discrimination claims brought under Title IX of the Education Amendments of 1972. But, just as employers generally adopt and enforce zero-tolerance sexual harassment policies that are more restrictive than the current state of sexual harassment law, university speech codes often limit speech that would not be actionable under Title IX. Such over-reaching codes are almost impossible to enforce as written, and are honored only in the breach. The result is uneven enforcement and furthering of a climate of crabbed, truncated, too-cautious speech. If there is any place where diversity of opinion, thought, and speech should be nurtured, it is in a university. Who to blame? The Phoenix article notes “the campus free-speech movement of the 1960s and ’70s was highly successful. The sad irony is that many from the generation that fought so hard for free speech in the ’60s and ’70s were the pioneers of speech codes and PC restrictions in the ’80s and ’90s and that we still see today.”

You’re welcome, kids.

Porn Conviction Causes Outrage

This is a strange case. Based on the reported facts the result is so wrong, so unfair, that at first I questioned their accuracy. Subsequent articles confirm the story. Julie Amero is a substitute teacher in Norwich, Connecticut. In October 2004 she substituted in a 7th-grade class at Kelly Middle School in Norwich. Before class started she used a classroom computer to email her husband. She left the classroom for a moment. When she returned two students were using the computer to look at new-hair-styles.com. She sent them away from the computer and started class. A short while later pornographic images began popping up on the computer monitor. She tried unsuccessfully to close them but did not turn off the computer because she had been told to leave it on. Students saw images of naked men and women, including an image of a couple engaged in oral sex. The prosecution claimed that Amero caused the images to appear by clicking on a web site. Amero’s defense argued that malware installed on the computer before the day in question caused the pornographic images. On these facts a jury last month convicted Amero, after a three-day trial, of impairing the morals of a child. She faces a sentence of up to 40 years. Juror Mark Steinmetz was quoted after trial: “So many kids noticed this going on . . . It was truly uncalled for. I would not want my child in her classroom. All she had to do was throw a coat over it or unplug it. We figured even if there were pop-ups, would you sit there?” John Christoffersen, Substitute Teacher’s Porn Conviction Sparks Tech Debate, Law.Com, 14-Feb-07 (Subscription Required)

I think she would have received a lesser sentence for selling crack in the classroom.

Amero’s conviction has provoked outrage. For a representative sample see here, here, here, and here. Among the jaw-dropping facts and allegations:

  • The prosecution failed to examine the computer for the presence of spyware, which could generate images without a user electing to do so.
  • The computer was running Windows98 and Internet Explorer 5.0, its antivirus software had expired, and it lacked firewall and antispyware protection. This security-challenged computer ran unprotected in a 7th-grade public school classroom.
  • The trial judge did not allow Amero’s expert witness to complete testimony that Amero did not cause the images to appear.

It seems the jury applied a strict liability standard: Amero was the adult in the room when the porn bomb went off, so she is guilty.

Sad Day

Soft, fat snowflakes have been falling quietly all day in the flat, gray light. The weather’s downcast mood is fitting. Boston University is coping with the death of two students and the serious injury of a third in a fire this weekend. The victims touched many lives in their years at BU and their deaths leave an aching, empty sadness. My heart goes out to their families and friends.

Egypt Imprisons Blogger

An Egyptian court sentenced 22-year-old blogger Abdel Kareem Nabil to a total of four years imprisonment “for insulting Islam and the Prophet Muhammad and inciting sectarian strife and . . . for insulting President Hosni Mubarak.” Nabil, who wrote under the name Kareem Amer, has been ” an unusually scathing critic of conservative Muslims.” Nabil’s criticism led earlier to his expulsion from Al-Azhar University, where he was a law student. See articles here and here.

Color Me Gruntled

Discussing the email trespass to chattels case Intel v Hamidi, a student described Hamidi as Intel’s disgruntled former employee. I noted that I’d never heard anyone described as a “gruntled employee,” or a gruntled anything. A few hours later I received this email:

To Professor Randall,

Just out of curiosity, I wanted to see if “gruntled” was a word after the discussion about Hamidi and being a former disgruntled employee.

Gruntle1- cause to be more favorably inclined; gain the good will of

Gruntle2- to grunt; to grunt repeatedly

1 gruntle. Dictionary.com. WordNet® 2.1. Princeton University. http://dictionary.reference.com/browse/gruntle (accessed: February 22, 2007).

2 gruntle. Dictionary.com. Webster’s Revised Unabridged Dictionary. MICRA, Inc. http://dictionary.reference.com/browse/gruntle (accessed: February 22, 2007).

Unfortunately, the word was not available on Wikipedia. On a side note, the first result for disgruntled was “Disgruntled Postal Worker.”

Isn’t this great?

The Purpose of Law School

I’m catching up on my RSS feeds after a week of course prep and reading papers. Carolyn Elefant had a long post last week titled Should Law School Teach Skills?–a title that might provoke “duh?s” from non-lawyers. She draws from a number of sources (including Ann Althouse’s 2/20 NY Times Op/Ed piece and Jame’s Maule’s chock-full-of-links blog post), asking significant questions about the nature and purpose of legal education. I won’t attempt to restate all of her points. Their essence is that law schools teach too much about how to think like a lawyer and not enough about how to practice law. Learning how to practice law requires learning how and why clients respond to legal requirements, how to acquire, talk to, and maintain clients, how legal ethics shape a lawyer’s advice, how to run a law practice, and other practical skills. Her post, and sources from which she draws, explore the proper balance in legal education between theory and practice.

Much of what she says resonates with me. I graduated from law school with a strong sense of law as a profession, and an inadequate sense of the practice of law as a service industry. I entered law school with three years’ paralegal experience doing prisoners’ rights and legal services work and knew something about representing a client’s interests. Three years, one house, a marriage, and one child later I entered corporate practice knowing virtually nothing about the business of law. Having attended Northeastern University School of Law I had worked four different co-op jobs, a total of twelve months’ time researching and writing briefs and motions, and had that experience advantage over many other recent grads, but my education in the practice of law only began in earnest as a young associate in a large Boston firm. If I could make one change in the curriculum I’d require that each law student take a course in financial accounting, a position that would make the 25-year-old One-L David Randall weep over my failed idealism. I didn’t know then that the ability to understand a balance sheet and income statement is critical on both sides of the aisle.

I’m less critical of my law school experience than many of my lawyer friends. Since its reincarnation in the early 1970s Northeastern Law School has always attracted students who question the nature and purpose of legal education, and in my years (1978-1981) we discussed the social implications of our cases at great length. NUSL’s corporate law offerings were thin in those days, a situation which I understand the school has addressed over the years, and I took little advantage of what the school had to offer because I had negative interest in corporate law practice until a third-year big-firm coop. Three years’ experience in the legal writing and practice course, the last two as a TA during which we created a new problem that the school used for the next decade, gave me great confidence in my ability to find, analyze, write about, and argue the law. What I needed, and what more law grads need today, is training in translating issue-spotting ability into dollars-and-sense advice.