The Legal Profession, Personal Responsibility, and the Internet
Our law students are more tech-savvy than ever. Unfortunately, they occasionally lack sense. Some of them simply fail to realize that we—professors, bar examiners, and law firms—see material they post online. Others make a game out of being intentionally, but anonymously, offensive. To avoid further injury to the reputation of our law schools and the legal profession, we must create incentives for the former students to consider consequences, and a reasonable chance that the latter students can be “caught”—i.e., tied to their online personas. To accomplish both ends, I propose that we request, in law school and bar applications, a three-year history of online aliases and related information.
I. L’affair d’trustafarian
On April 16, 2007, Cho Seung-Hui murdered thirty-two people at Virginia Tech. On April 18, someone calling himself “Trustafarian” posted the following message on a notorious law student board known as “XOXO” or AutoAdmit:
|Thread: Just decided not to do a murder-suicide copycat at Hastings Law|
|Date: April 18th, 2007 1:35 PM|
|I went to bed all set for “Bloody Wednesday,” but when I woke—to sun, to flowers in bloom—I just couldn’t bring myself to suit up.|
|Maybe tomorrow; I hear rain’s in the forecast.|
Within ten minutes, Trustafarian had removed the message, but not before another poster had seen it and become alarmed. This person reprinted the original post several times on the message board and alerted the authorities. Ultimately, Hastings Law School was shut down.
Trustafarian “c[a]me forward to claim responsibility for that message,” and allowed the board administrator to reveal his identity to the FBI. Thus far, we know that he was a first-year law student at the University of California, Berkeley. He was threatened with criminal charges and the administration recommended that he be expelled. If he is not expelled, he may well fail character and fitness requirements for admittance to the bar.
Some other posters on the AutoAdmit board, however, found Trustafarian’s punishment outrageous and demanded that the tattletale, the person who alerted the authorities, be “outed” for violating the norms of the board. Their dilemma is nicely captured in the following exchange:
|Thread: XOXO: Let’s write a letter to Boalt in support of Trustafarian.|
|Date: April 26th, 2007 3:23 PM|
|you guys keep crying about how trustafarian doesn’t deserve any of this. fine. at least put your money where you’re mouth is and compose a letter to the boalt dean. if you feel so strongly about this, then you won’t mind attaching your name to the letter. hth.|
|Date: April 26th, 2007 3:25 PM|
|Author: V. I. P. (Sucks for you, you motherfucking McBeef.)|
|Please don’t put our rapist friend in jail.|
To explain, AutoAdmit is commonly described as a cesspool of racist, homophobic, misogynistic rhetoric written by (purported) law students protected by cyberanonymity. Comment threads include fare such as “Every Woman Should Be Raped at Least Once.” To the extent that the posters are actually law students (or lawyers), they are well aware that associating their real names with their AutoAdmit monikers could have career-limiting repercussions. The import of the latter message is that no one could come to Trustafarian’s defense in real life without jeopardizing his or her career.
L’affair d’Trustafarian highlights a developing divide between online and “real-life” personas. While the behavior itself is not new, the medium—the Internet—creates unprecedented potential for damage. If Trustafarian had made his joke to three friends at Boalt, we would never have known about it. Because he used an online message board, he jeopardized his nascent legal career.
II. “Online” Is “Real”
Many law students are enjoying an “extended adolescence” marked by inappropriate and immature behavior. From a law student flashing traffic and then taunting police, to Facebook.com profiles that openly celebrate law students’ illegal, immoral or unwise behavior, a visible population openly prioritizes “fun today” over preparation for tomorrow. Cheating is on the upswing, and the object of the game is to see what you can get away with. Peer pressure rewards not mature behavior, but an adolescent ethic of silence—no matter how badly you’re treated, no matter how dangerous the situation, don’t tell the grown-ups.
“Millennial” generation law students in particular tend to compound this lack of judgment with a propensity for posting every detail of their lives online, creating a potentially permanent record of every unwise choice they might make. They seem to believe that what is “online” is not “real” and cannot impact the physical world. Only friends are supposed to see the photos they post of themselves drunken and half-dressed. Only fellow jokesters on your message board will read your juvenile threats, and they will relish your savage sense of humor.
The Trustafarian incident is just one of many disproving this theory. This is not unexpected: forethought would lead to the conclusion that online posturing can have real consequences. Posting compromising photos of yourself is unwise. Getting cheap thrills by using racial epithets or issuing rape threats encourages the downward spiraling of rhetoric until it results (to the poster’s utter surprise) in someone getting hurt. The response of the AutoAdmit posters to real-world consequences is something like, “Nobody should take anything we say seriously. We’re just a bunch of losers.” Well, losers they may be. But other people can see the Internet, and no one can reliably determine what is real and what is “flame.”
III. Treating Like Behavior Alike
If we are actually worried about the character and fitness of the lawyers we admit to the bar, why should Trustafarian, who came forward and admitted his association with an unwise post, be given the most severe punishment possible, while other law students, who threaten to rape a particular person, cackle gleefully behind the hood of anonymity? Why should we exclude a racist like Matthew Hale, but admit someone who expresses the same sentiments anonymously? If one is unfit to become a lawyer, then both are. You could argue that the latter candidate is less fit for admission because he not only engages in disqualifying behavior, he lies (even if by omission) about his association with it. Whether this disrespect is genuine, “flame,” or “schtick” is irrelevant—the lack of “‘respect for the rights of others’” is the significant characteristic.
Aspiring lawyers need to understand that Internet activity is public behavior and conduct themselves accordingly. Thus, my proposal: request a three-year history of online aliases, e-mail addresses, IP addresses, blogs, and social networking site profile information on both law school and bar application forms.
Bar applications already ask students to itemize every speeding ticket ever received, provide personal references for each stage of life, and list several years of mailing addresses. We need to ask for the cyberequivalent. These questions should be phrased as requiring a “complete” list—perhaps for the three years preceding the application—with the burden of omission falling on the applicant (i.e., penalties for lying if you leave things off).
Why would we do this? First, it is always possible (although unlikely), that having this information on file would allow the tying of bad behavior to particular people. The more salient effect is the in terrorem signal to the applicant that online identity is a relevant part of character to be evaluated by authorities. The message: Clean up your act. We’re watching. To reinforce the point, we should caution first-year law students about maintaining appropriate online personas.
Much of the behavior this requirement discourages is not anonymous, just stupid. It may not have occurred to you that the bar examiners might look at your Web page; this just makes that possibility explicit. (California has already denied admission to least one applicant on this basis.) But it also makes clear to anonymous abusers that their behavior is relevant whether or not conducted in their own names.
Inquiring into online aliases does not require future lawyers to register before they speak, nor does it prevent them from speaking—I would only ask that they take credit (or blame) for their own words. Requiring disclosure would not expand the scope of prohibited behavior—as the AutoAdmit posters themselves realize. The only additional restraint here is against a fraud on the admissions or bar examiner’s committee—specifically, the pretense that the sociopathic AutoAdmit poster wasn’t you.
Like Michael Richards or Don Imus, if law students have the courage to speak (or rant) under their own names, they are free to do so—and to accept the consequences. But our future lawyers should have only the right to say anything they want, not the right to disclaim responsibility for what they say.
Michelle Morris is a Lecturer in Law and a Research Librarian at the University of Virginia Law School.
Preferred citation: Michelle Morris, The Legal Profession, Personal Responsibility, and the Internet, 117 Yale L.J. Pocket Part 53 (2007), http://yalelawjournal.org/forum/the-legal-profession-personal-responsibility-and-the-internet.