The Volokh Conspiracy
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David Lat on Law Student Anonymity
Some very interesting observations and queries, much worth checking out. An excerpt:
Should law students be able to protest anonymously? I view school as a period of experimentation and exploration, and one reason I have argued against holding college writings against judicial nominees is because of the chilling effect it would have. Students would be much less willing to experiment, explore, and write and say controversial things—all valuable parts of the educational process—if they felt that their words and deeds would come back to haunt them, years later.
When I was in charge at Above the Law, we had a policy of generally not naming law students involved in controversies; instead, we would come up with (often cute) pseudonyms for them (e.g., Johnny Applethief). We did this because we didn't think it fair for a law-school controversy—often a pretty silly law-school controversy—to dominate a student's so-called "Google footprint," i.e., what comes up when the student is the subject of a Google search.
One of the reforms that Yale Law instituted in the wake of last year's protest debacle was a ban on surreptitious recording. In announcing the ban, Dean Heather Gerken pointed out that it "mirrors policies that the University of Chicago and other peer institutions have put in place to encourage the free expression of ideas." And although the ban received criticism (from both the left and the right), one can see the logic of it. Students would be much less willing to participate in discussion, especially to voice a controversial opinion or to play "devil's advocate," if an out-of-context snippet of their remarks could make its way to Twitter or TikTok.
So that's the pro-anonymity case. There's a case to be made against anonymity, which Professor Nancy Rapoport makes in this blog post (discussing a situation in which anonymous law students filed complaints against a professor—complaints a university investigation concluded were unfounded):
Read the whole thing.
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This stems from the fact that liberals can say whatever stupid things they want with no consequences, but conservatives can’t. If you say that a man is not a hero for wanting to cut his schlong off, you’re a hateful bigot.
But if a black gets up and screams about Wakanda and how evil white men are, she’s lauded.
Curious….
How many words for ‘penis’ do you know?
Seems like you’re some sort of expert in the male sex organ.
Prof. Volokh aims for the gallinalg85 target, hits his target audience.
Carry on, clingers.
Carry on bigot.
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twelve-month period.
Is no one going to attempt to defend the proprietor’s honor in the context of these specific references to bigoted conduct?
Where’s the guy who tries to claim that Prof. Volokh never imposes the censorship that Prof. Volokh not only has admitted but also assured us he is ready to impose anew?
“Students would be much less willing to participate”
The Yale ban is aimed at protecting professors, not students.
Law students are adults and should not get any special anonymity consideration that others do not on the grounds of graduate school being a ‘time for experimentation’. I also think the idea that a man who is protesting publicly to attract attention to his position should want anonymity is inconsistent.
It seems especially egregious to single out law students, as if reinforcing the prevalent attitude that they are the future de facto rulers of the country and need special protection from the consequences of their actions.
Why not plumbers, or librarians, or sailors?
Why do minors who are tried as adults not get this exception?
I should clarify that I think Lat’s point that school is a time for experimentation as to one’s *legal ideas* is valid and judicial nominees’ law school writings should not be given much weight.
But it’s a good starting point for a nomination.
“Judge Judy, when you were at law school, you wrote, ‘Only males eligible for the U.S. Military and over 21 should be authorized to possess weapons privately.’ Is that still your view?”
Perhaps, but I’d respect a nominee who (assuming her view actually had changed) gave short shrift to that by responding “Nope. I had lots of thoughts in law school that didn’t make it into my legal theory. That’s why they call it law ‘school’.”
At a time in which people are publicly shamed, targeted, having their college admissions and employment offers revoked by name due to things they allegedly said in high school, there seems little justification for protecting the identity of persons in their 20s and 30s who are in law school.
That may well be the case, but it doesn’t strike me as a particularly good argument against what Yale is doing. One could equally well argue Yale has no business giving students small classes or access to famous professors or gyms to work out in or expensive libraries and research facilities because most people don’t get those things either. But it’s the very business of an elite university to give members of its community special things not afforded to the rest of the populace, things that many other people want but don’t get. Why should this be any different?
I disagree with that. I’d be more worried that I would be accused of saying something I didn’t say. Recordings protect us from that.
It’s like email. If one chooses his words carefully and bears in mind that a permanent record is a being made, it is useful to have an accurate record of what one said. But if one is careless and lets his mouth get ahead of his brain, it’s going to be a big problem.
In general it seems foolish to hold a 50 year old accountable for anything they said before they were 25.
It is reasonable to ask them to explain how their current thinking differs and why.
Reasonable? Who says reason has anything to do with this?
[checks URL….] Disregard.
Banning surreptitious recording is just another way for the powerful to stamp down on the weak. I never buy this “oh it encourages frank discussion” argument. It encourages frank assholery and abuse. That’s the same argument politicians try to make about avoiding public scrutiny.
During my 40 years as a law professor, I assumed that everything I said was remembered. In fact that was my intention. Looking back, I would prefer a contemporaneous recording (capable of validation) to a memory from a week or 5 years ago.
In the Mid-1960s in the rural South, I fought anonymous protesters in White Hoods. They were afraid to be identified and linked to their cause. Because, you know, they might lose their job.
I fail to see a difference between them and the Yale “protestors” on the issue of anonymity. Job loss is job loss. Only the spineless hide.
Thank you for raising these important questions about law student anonymity in the context of protests, internal complaints, and lawsuits. The right to engage in anonymous speech is protected by the First Amendment of the Constitution, as the Supreme Court held in McIntyre v. Ohio Elections Commission (1995). However, this right is not absolute and may be limited when there is a compelling interest, such as when the anonymous speech creates a clear and present danger to the public order or substantially interferes with the rights of others.
In the context of internal complaints, the right to freedom of speech, which is protected by the First Amendment, may be implicated. As the Supreme Court held in NAACP v. Alabama (1958), the right to freedom of speech includes the right to associate anonymously with groups for political or social purposes. However, the right to freedom of speech may be limited when there is a compelling interest, such as the need to conduct a thorough investigation or to protect the rights of others.
In the context of lawsuits, the right to freedom of speech, which is protected by the First Amendment, may also be implicated. As the Supreme Court held in Doe v. McMillan (1973), the right to freedom of speech includes the right to engage in political speech anonymously. However, the right to freedom of speech may be limited when there is a compelling interest, such as the need to maintain the transparency and public scrutiny of judicial proceedings or the need to protect the rights of others. As demonstrated in the case of Stubbs v. Gerken, the court may deny a motion to proceed under pseudonyms if it finds that there is a compelling interest in doing so.