Some lawyers-to-be should exercise their right to remain silent.
BY ELIZABETH WURTZEL
Monday, March 19, 2007
New Haven, Conn.
It's hard out there for a law student. All the stuff to stumble through on the way to that J.D.: torts, property, contracts, evidence, civil procedure, AutoAdmit.
That last item is a new development: a Web site of postings for law schools prestigious and otherwise, where students blab about whatever. An awful lot of it is about other students, most of it mean-spirited. This is all extremely weird for those of us born before the Carter administration, who tend to assume that scrutiny about breast implants-there was a whole thread of discussion devoted to whether one Ms. J.D.-to-be was silicone-enhanced-is reserved for celebrities. The flat, affectless sexual bravado of the trash-talk on AutoAdmit is also a bit of a shock, coming from allegedly intelligent legal minds.
The AutoAdmitters were happily going about their gossip, yakking away like yentas pinning laundry on the clothesline, until sometime last week. That's when the Washington Post ran a front-page story about some young women here at Yale Law School whose careers-if not their lives-had been ruined by some salacious postings. The descriptions of them-sluts and whores-and the suggestions about what might be done to them-rape and sodomy-were showing up on Google searches of their names, and had prevented at least one of them from securing employment.
Since then, Dean Elena Kagan at Harvard Law School and Dean Harold Koh here at Yale have sent out open letters, condemning the nasty communications. We've had speak-outs and write-ins, organized blue ribbon panels and worn red outfits for solidarity, and there's talk of legal remedies and media campaigns. There've been long soul-searching messages on our own Web site, The Wall, in which at least one person has used the word "nomic."
Mostly, the young women would simply like the offending postings removed from the site. This is not likely to happen. Not because it shouldn't-of course it should. But because once again, for about the 80th time in my memory and for at least the 80,000th time in the life of this country, here is an issue in which the right to free speech-as opposed to the need for everyone to just shut up-is going to overwhelm us all.
Cybertalk is about as governable as Iraq, and the First Amendment allows for most other expression, making the U.S. a very loud place. For every interest group that says it's being silenced, for all the people who think they're not permitted to talk back to power, there are the real rest of us for whom the din is deafening. The firstness of the First Amendment trumps everything that competes with it.
Clever attorneys know this all too well. In a scholarly article, Professor Frederick Schauer of Harvard notes, "lawyers representing clients with claims and causes not necessarily lying within the First Amendment's traditional concerns have reason to add First Amendment arguments, in the hope that doing so will increase the probability of success." This is particularly so if you're going to take your case as high as the Supreme Court, which has struck down rape shield laws and permitted pictures that resemble kiddie porn-in the name of First Amendment freedom. For all Congress's threats to pass a bill banning the burning of the American flag, even Justice Antonin Scalia has voted for the right to set Old Glory ablaze, because the First Amendment guarantees it. Free expression is an issue that everyone can agree on: old-fashioned conservative textualists, because it's in the Constitution, and new-fangled liberal interpreters, because, well, it's in the Constitution. The Federalist Society and the ACLU all believe the same thing: the First Amendment means that anyone can say just about anything.
And really, short of that old chestnut-screaming "Fire!" on the main floor of Bloomingdale's-there's not a whole lot you can't say in public. Including the word "faggot," as we recently found out. Social norms may force you to go to rehab for your stupidity, but the law can't touch you at all. Likewise, save for the defined defamatory, there's not much that cannot be said about you. "Exposure of the self to others in varying degrees is a concomitant of life in a civilized society," opined the Supreme Court in 1967. This was decades before "Cops," in the century before YouTube.
In such a world, what to do about AutoAdmit? To start with, pray for mercy, because based on the content of its postings, the future of jurisprudence does not look good. Having done that, plead for civility. Just because we can say anything, does that mean we must say everything? While I could never advocate censorship, I would certainly ask for sensitivity. We all have to live in this world, all seven billion of us, brushing closer and closer together, and bristling in this claustrophobia. Maybe we ought to be slightly more careful before we say whatever it is we feel compelled to freely express. Maybe we ought to stop, have a hesitation, before pressing the send button.
Because people are delicate. The neighborhood rumormongers of yore could cause enough trouble in a small town, but the World Wide Web is really a mess. It's unpoliced, which demands that we be better people, gentler and more humane. Because if not we will surely all go mad. As it is we are overwhelmed: It never stops, we don't know how to stop it, we wouldn't want to anyway, and then we relish complaining about it.
This is how we live now. Do we want to add random postings about ourselves, our private selves, that aren't even true, into this volatile mix? AutoAdmit for adults?
In the mean time, the three young women here at Yale Law School who've been most harmed by AutoAdmit-beautiful and brilliant all-deserve a way out of this electronic shock.
Posted with the author's permission. An edited version of this appeared in today's WSJ.