AutoAdmit -- the Denouement

As reported on the Wall Street Journal blog (via Leiter's law school site), the law firm of Edwards Angell Palmer & Dodge has rescinded its offer of permanent employment to Anthony Ciolli, the law student who co-directed the AutoAdmit message board.  This post by an NYU law student details the truly horrific nature of many of the posts on this site -- calling them racist, sexist, misogynist, homophobic, and anti-Semitic really fails to characterize these comments adequately. 

I don't have much to add to the discussion in the comments to these posts, except to emphasize a couple of points. 

(1) I've written about the possibility that Ciolli might have a hard time getting through the character and fitness screening process when he applies for admission to the bar.  I've also noted that courts tend not to take the First Amendment concerns of applicants very seriously, in a trend that goes back to a series of cases decided by the Supreme Court in the wake of McCarthy-era anti-Communist fervor.  It should go without saying -- but seems to have been missed by many of the commentators on-line -- that whatever the merits of the First Amendment argument as applied to a state actor such as a state bar, there is no constitutional reason why a private employer cannot consider all sorts of expressive activities as evidence that a potential employee lacks the character sought by the employer.  Law firms can reject applicants, or rescind offers, for all sorts of reasons, and turning a blind eye to repeated threats of sexual assault is certainly not the least weighty reason someone has ever lost a job.  It's more than a little disingenuous for Ciolli to cry "First Amendment" at this point, because there are plenty of activities protected by the First Amendment which reasonable, decent people shouldn't engage in, like participating in Klan rallies or publishing magazine ads stating that Jerry Falwell's first sexual experience was with his mother in an outhouse.  The point of the First Amendment is to block the government from making judgments about what constitutes reasonableness and decency for people; individuals and private employers, however, remain free to make and act on these judgments. 

(2) Ciolli's attitude all along has been "who me?  I'm not posting this crap -- I'm just providing a forum for the free and unihibited exchange of ideas."  As soon as it became clear that this unihibited exchange had degenerated into a game of who could be the biggest racist, Ciolli had a choice -- either continue the site knowing that any value it had as a means of exchanging information about legal education was outweighed by the atmosphere of intimidation that had developed on the site, or take some modest steps to ensure the continued usefulness of the forum.  Plenty of on-line discussion boards are moderated or have other ways of ensuring that the worst trolls don't ruin the forum for everyone else.  When Ciolli and his business partner decided not to do anything about the vitriol on the site, they essentially endorsed a particular style of exchange.  It's not unfair for an employer to see that endorsement as evidence that Ciolli doesn't take racist and misogynistic threats all that seriously.  At the very least, a law firm would be justified in concluding that Ciolli is a troublemaker and relishes stirring up controversy.  Given how (socially, not politically) conservative most law firms are, law students who like to raise a ruckus are running a risk of making themselves unemployable.

(3) One of the first things every associate in my firm learned was that second only to billable hours, the most important thing for an associate to demonstrate was good judgment.  Judgment was never defined explicitly -- we were supposed to figure out what it meant.  I could write a long post on the concept of judgment at a big law firm, but for the purposes of this discussion, one of the aspects of good judgment is not unnecessarily exposing the firm (or clients, of course) to risks.  Associates who wrote boneheaded letters to opposing counsel, filed overly aggressive motions to compel, acted like Paulie Walnuts in depositions, and yelled at secretaries and paralegals were deemed to exhibit poor judgment.  The firm tried to avoid hiring new lawyers who would create "judgment" problems, and in every class of summer associates there was at least one person who didn't get an offer -- or got one only after a long discussion on the hiring committee -- because of fears that this person would do something stupid as an associate.  Given this way of looking at things, rescinding Ciolli's offer would be a no-brainer decision for the firm.  There's no upside to having him around -- even if he genuinely accepted responsibility for his role in the AutoAdmit fiasco he would still be a magnet for bad publicity, at least for a while.  And besides, there are plenty of smart, motivated recent graduates of good schools to do the work.  Why should the firm buy itself a potential risk? 

Comments

[John Kang]

Hi Brad,

Thanks for the calm and intelligent analysis. I'm still puzzled as to why Mr. Ciolli acted so irresponsibly; it seemed, even if he cared little for the welfare of others, terribly detrimental to his own professional interests. Odd.

John

[xoxo user]

Generally a decent analysis, though your point two expresses your own normative judgments in the guise of objective evaluations of what occurred on the board:

"[A]ny value it had as a means of exchanging information about legal education was outweighed by the atmosphere of intimidation that had developed on the site..."

Really? Is this provable? If you were familiar enough with the site, you'd generally understand that the racist trolls were more shunned than encouraged, and it did not deter perfectly normal law students and lawyers (who probably happened to have a thicker skin than others) from exchanging information.

"Plenty of on-line discussion boards are moderated or have other ways of ensuring that the worst trolls don't ruin the forum for everyone else."

Again, you're overstating your case. Did the worst trolls ruin the forum for everyone else? Maybe for legal ethicists, but not for the hundreds or possibly thousands of law students and lawyers who relied on the site for better advice on law school and information about firms than any other discussion board out there.

"When Ciolli and his business partner decided not to do anything about the vitriol on the site, they essentially endorsed a particular style of exchange."

Terrible logical leap. You've overlooked that the site was in the middle of a deliberation on a limited censorship policy leading up to the time when the Reputation Defender fiasco unfolded. But that aside, it's a particularly odious inference that committing onself to non-censorship implies endorsement of the inevitably dark side of the wide range of discourse which unfolds.

[no longer 2L]

Where did Ciolli claim that the Firts Amendment protected him from having his offer rescinded? You used quote marks, so I assume you think you are quoting or paraphrasing. Are you? If not, can you cite the source or edit out your quote marks?

Do you stand by the claim that participating in a Klan rally satnds on the same footing as running a message board where others post vile language? If so, why? That just isn't obvious at all.

Where are the facts supporting your claims about what control he has over the board? I can't believe you would just make them up, but I also can't guess where you got those facts you toss around. You seem to have fairly detailed knowledge of how the site works, who owns it, who makes the decisions.

[anon]

Mr/Ms. no longer 2L,

Professor Wendel did not argue that participating in a Klan rally is the moral equivalent of running a website on which people post vile language.

He merely argued that having the right to engage in certain speech does not entail that it is morally decent to express such speech. Spewing racist hate - marching with the Klan - is just an illustration of the point. He did not have to argue that what Mr. Ciolli did was the moral equivalent.

You might want to try reading and thinking more carefully during your third year of law school, assuming you're still enrolled.

[anon2]

xoxo user writes: "If you were familiar enough with the site, you'd generally understand that the racist trolls were more shunned than encouraged, and it did not deter perfectly normal law students and lawyers (who probably happened to have a thicker skin than others) from exchanging information."

I am familiar with the site. I find it incredible that someone could serious watch what goes on there and describe it as "perfectly normal law students" exchanging information, while shunning racist trolls. Compare what goes on at the xoxo law board with what goes on at the xoxo grad board (which now gets little use, for the obvious reason that decent people do not want to be associated with xoxo). The grad board seems to actually reflect your description. The law board is not a mix of useful things with racist trolls thrown in the mix. It is over-run by racist trolls, with trivial unhelpful information in between.

[no longer 2L]

Anon,

Actually, you might go back and read it again yourself. The professor was arguing that there are some things that reasonable, decent people do not do. (For "reasonable, decent" people I substituted "moral," but you may think that "moral" has nothing to do with being reasonable and decent, so I will use "reasonable, decent (moral)".)

When the professor argued that there are some things that reasonable, decent (moral) people don't do, and he gavem the specific example of first person participation in a Klan rally. But, the professor said that was "like" what Ciolli did. The word "like" was used. So the question does not go away. Why is running a message board "like" participating in a Klan rally? I don't find one to be "like" the other at all. The argument makes a huge jump over the issue of first person participation which is true for the Klan rally particpant but is quite poossibly not true for someone who runs an unmoderated message board. Why is one "like" (same moral footing) the other?

Take, for example, a private university where academic freedome is vlaued and a professor engages in speech that resaonable, decent (moral) people don't engage in. If the universtiy upholds academic freedom, I don't think the university is "like" a participatn in a Klan rally.

[anon]

"It's more than a little disingenuous for Ciolli to cry "First Amendment" at this point, because there are plenty of activities protected by the First Amendment which reasonable, decent people shouldn't engage in, like participating in Klan rallies or publishing magazine ads stating that Jerry Falwell's first sexual experience was with his mother in an outhouse."

Mr./Ms. anon,

You will not do well in law with the way you read. Sure, the word "like" was used. But look at the sentence. Professor Wendell said Ciolli cannot rely on the First Amendment because there are some constitutionally protected activities that reasonable, decent people don't engage in. *Like* what? Might there be examples of activities that are protected by not decent? Yes. Like .... participating in a Klan rally.

What you're trying to do is disingenuous. You're trying to twist Professor Wendell's words so that his position looks silly. Again, you will not do well in law if all you do is try to twist your opponent's words to set up a straw man.

[reading along]

No Longer 2L seems to want to drive a wedge between first order participation (uttering the bad words) and second order participation (providing the forum for bad words). Or, if not drive a wedge, at least demand an explanation why the two activities should be treated alike.

Anon apparently is apparently agnostic as to whether one activity is "like" the other. Fair enough. But the fact that one thing belongs in the "protected but not decent" bucket doesn't entail that any other thing belongs in that bucket unless the two things are "like" each other in the relevant sense. (In fact, it doesn't even entail that anything else at all belongs in that bucket; it simply proves that the bucket exists.)

So the questionn for Anon is: leaving aside whether or not running a board is "like" participating in a Klan rally, why does second order participation belong in the "protected but not decent" bucket?

[anon]

Reading along,

There is no reason at all for me to argue that what Mr. Ciolli did is "protected by not decent." Let's recap, shall we?

1. Mr. Ciolli defends himself by citing First Amendment.
2. Professor Wendell argues that the First Amendment does not protect his activity; it allows private employers to judge whether someone's speech/activities are decent.
3. No-longer-2L twists Professor Wendell's point to be that what he did was like participating in a klan rally.
4. I point out that No-longer-2L has twisted Professor Wendell's point to set up a straw man, and that Professor Wendell's original point still stands: namely, that the First Amendment allows private employers to judge for themselves whether someone's speech/activities are decent.
5. You're challenge to me is irrelevant. The point is that the First Amendment does nothing for Ciolli. It's up to employers to evaluate his conduct. What I have to say is irrelevant.

[reading along]

I now realize that you take no position on whether or not running an unmoderated board is like or unlike participating in a Klan rally, and that you take no position on whether or not running an unmoderated board falls into the "protected but not decent" bucket. Fair enough. You are here only to shoot down an argument that is attributed to Mr. Ciolli.

But it's not clear that there is any support in the original post or in your comments for the first proposition; that is, that "Mr. Ciolli defends himself by citing First Amendment." Perhaps he has and perhaps he hasn't.

[Anthony]

"It's more than a little disingenuous for Ciolli to cry "First Amendment" at this point,"

"1. Mr. Ciolli defends himself by citing First Amendment."

This is news to me, given that I have not only never made such an argument, but made a post the other day defending an employer's freedom of association. In fact, I believe some existing laws go too far in limiting an employer's rights, such as the Massachusetts statute cited in several WSJ blog comments that prohibits private employers from firing employees for exercising their First Amendment rights.

So, let's please work with the real facts, and not made-up or hypothetical ones.

[Flash]

fine, but that same argument justifies bigots from excluding african americas, gays or whoever from their private club. Not pretty in that case.

This kind of language may in fact be useful, if (for all the classic 1A reasons) it serves as a safety valve, or is the price we must pay so those who say moderately objectionable things don't feel afraid to speak up.

We don't like what happens on the board. A lot of it, probably most of it at this point, is pretty gross stuff. so if a law firm doesn't want to hire the administrator, that's fine. but should the administrator fail the character and fitness examination? Given the objectionable content, that would seem like straight forward viewpoint discrimination, and be presumptively unconstitutional.

To be frank, I'm really turned off by how Brian Leiter piles on this guy. Posting his failures on his website. So the guy is rotten. He's not the only one, there's lots of rotten people - in law and in academia. Leiter seems so happy that he lost his job and that his career is suffering. A little too much schadenfreude for my taste. But not surprising from Leiter, who can be, in my view, pretty nasty online.

[Crackle]

Here is what Leiter wrote: "Sadly, Mr. Ciolli did not listen [to advice]. Even more sadly, he and Mr. Cohen allowed dozens of people to be viciously defamed, harassed, humiliated, and threatened with sexual and criminal violence."

that doesn't sound like schadenfreude.

[Brad]

Re this comment: "[I]f a law firm doesn't want to hire the administrator, that's fine. but should the administrator fail the character and fitness examination? Given the objectionable content, that would seem like straight forward viewpoint discrimination, and be presumptively unconstitutional."

I agree. I've been very careful in my posts about the character & fitness process to note that courts tend to be incredibly sloppy when analyzing the 1st amend. rights of bar applicants. My point has simply been to remind law students that what they're learning in their con law classes about the 1st amend. rights of unpopular speakers doesn't necessarily apply to C&F screening. Bar admissions committees think they should be evaluating moral character in a thick sense, not just trying to weed out likely fraudsters. The language of C&F rules encourages this, of course, as does the public demand that the organized bar "do something about" perceived sleaziness by lawyers.

Let's take a concrete example: Here is what a poster said (about me, I think), on AutoAdmit: "wtf dood. you suck. i'm not saying that i'm going to rape you, but you definitely deserve a raping." I think an honest reading of a long line of 1st amend. precedents (Hustler v. Falwell, Cohen v. Calif., Lewis v. New Orleans, Gooding v. Wilson, Texas v. Johnson, R.A.V. v. St. Paul, and Brandenburg v. Ohio) would lead to the conclusion that this is protected speech -- hyperbole, not an actionable threat. But an honest reading of the line of bar admissions cases (Baird v. State Bar, Konigsberg v. State Bar, In re Anastapalo, Law Students Civil Rights Research Council v. Wadmond, Scales v. U.S., et al.) would be that comments like this can be considered as evidence that the applicant lacks the requisite moral character to become a lawyer.

I think this line of cases is wrong as a normative matter, and doctrinally a bad fit with other law, but it's out there and I can't do anything about it. That's why I thought it might be useful to remind people that bar applicants don't necessarily enjoy all the 1st amend. protection that should (in my view) accompany hyperbolic dissenting speech.

I should also note that there is plenty of speech on the AutoAdmit/XOXO boards that clearly crosses the line from protected political speech into actionable threats. See this thread, for example: http://www.xoxohth.com/thread.php?thread_id=617425&mc=12&forum_id=2. (Actually, anyone who's wondering what the fuss is about should read this thread. THIS is why people are upset about the message boards.)