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Thursday, August 11, 2005

Fired for obscene political e-mail

Conservative columnist Michelle Malkin recently posted a few examples of what she described as "profanity-laced moonbat hate mail from Bush Derangement Syndrome sufferers." The e-mails that she posted were quite over-the-top. One of them came from the sender's work e-mail account.

The e-mail, as posted on Malkin's site, reads:

X-Originating-IP: [216.105.154.202] From: "Mitchell, Patrick" Patrick.Mitchell@ogletreedeakins.com To: "'malkin@comcast.net'" Subject: Date: Thu, 11 Aug 2005 11:41:22 -0400 X-Mailer: Internet Mail Service (5.5.2657.72)

YOU STINK you nasty CUNT! Eat Shit and DIE bitch!!

Malkin pointed out (and the e-mail also notes) that this came from a sender at the law firm Ogletree and Deakins. Within two hours of her post, the sender of the e-mail had been fired for violation of firm policies. Malkin received an e-mail from the firm's managing partner, stating:

Dear Ms. Malkin, I am the Managing Shareholder of the law firm of Ogletree Deakins with offices located across the country. I was very disturbed to learn today that a legal secretary in our Los Angeles office sent you the vile e-mail referenced on your home page. Such remarks are clearly inappropriate in any context and an e-mail such as this certainly should not have been sent during working time using our firm's equipment. The comments of this employee are not reflective of the views or opinions of the firm and are directly in violation of our e-mail policy. As Managing Shareholder, I wanted to extend to you our apologies and let you know that this serious violation of our firm's work rules has resulted in the discharge of this employee.

Once again, let me offer you our deepest apologies for any discomfort that the referenced e-mail has caused. It will not happen again.

Sincerely,

Gray Geddie

There are many interesting potential issues at play here; however, because of the details of the e-mail in question, I think that they resolve pretty easily in this particular case. Most companies these days have an e-mail policy. I don't know the details of Ogletree Deakins' policy, but it seems likely that, like many policies, it prohibits harrassing or abusive e-mails. Mr. Mitchell's e-mail was very over-the-top, and it is not surprising that it would be found in violation of an e-mail policy.

May Malkin publicize the e-mail? Her e-mail contact page does not contain a written policy on e-mail usage. However, she's the rightful recipient of the e-mail. The sender makes no effort to keep it confidential. And even if he did, it's unclear that she has any duty to do so (particularly given its content). Thus, I don't think that Mr. Mitchell would have much of a case against her for publishing his abusive e-mail, though it seems possible that if some of these factors were changed, the result could differ. (The e-mail was written from a law firm and may include a footer about confidentiality. I don't think that that would apply to this e-mail, however, which has no legally-related content).

Posted by Kaimi Wenger on August 11, 2005 at 06:35 PM in Information and Technology, Kaimi Wenger, Law and Politics | Permalink

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I'm wondering what procedure was used to verify the authenticity of the email. Two hours does not seem to be enough time for anything more than a cursory investigation.

Posted by: ac | Aug 11, 2005 9:58:45 PM

AC - that's not really true. I can go into our mail server log and tell you what time any email sent through that system was sent, who the sender was, what their IP address was, what the destination address was, and various other details about the mail transacton. It takes me longer to log into the server and open the log file than it does to get that information. It's the work of seconds. And if the user was particularly dim, maybe they just didn't trash it from their sent items.

On the issue at hand, this page provides important guidance:
http://www.goldmark.org/jeff/stupid-disclaimers/

Posted by: Simon | Aug 11, 2005 10:42:24 PM

Doesn't the author of a letter, electronic or otherwise, retain copyright in the letter? Doesn't that prohibit Malkin from displaying it without his permission?

Posted by: Will Baude | Aug 11, 2005 11:44:11 PM

Will asked the question that popped into my mind. This is a somewhat unresolved area of internet copyright law. (Assuming for the moment that the e-mail is even copyrightable; it's a little short, and was not written by J.D. Salinger -- and there may be merger problems.) However, there seems to be a firmly established informal norm that when you send someone an e-mail, they are free to redistribute it and senders are presumed to know this. The situation may be somewhat like giving an interview to a reporter. My guess is there is a strong implied license argument, if nothing else.

Posted by: Bruce | Aug 12, 2005 12:45:48 AM

I also think there'd be a very strong argument for fair use of such an e-mail. Applying the four factors:

1. The use was basically transformative: it was incorporated as an example among many into a post for illustrative and critical/political/commentary purposes. Also the use was noncommercial. This is the most important factor, and it strongly weighs in favor of a finding of fair use.

2. The nature of the work is communicative rather than creative, albeit unpublished. Probably could go either way.

3. Amount of the work taken: all of it, but this is a very minor factor especially when the work is so small. Slightly weighs against fair use.

4. There's no market effect because, well, there's no market: the author wouldn't sell his obscene e-mails. Strongly weighs in favor of fair use.

Conclusion: almost certainly a fair use.

Posted by: Paul Gowder | Aug 12, 2005 1:15:50 AM

Paul,
Why transformative? I mean, the "message" (viz., "I respectfully state my disagreement with many of your policy views, Ms. Malkin") was being shared in a public forum by the recipient as an example of emails she had recieved offering this same message. To be transformative, wouldn't she have to take it out of context, or use it to convey a message other than that which was intended? It seems to me that the only "change" rendered was the expansion of the audience?

Posted by: Simon | Aug 12, 2005 9:52:17 AM

The generally accepted definition of "transformative" is a use that employs the quoted material for a different purpose than the original, i.e. the difference between my saying

"I think we are 'condemned to be free'" (a non-transformative use of Sartre's "condemned to be free")
versus
"That idiot, Sartre, says we are 'condemned to be free,'" which is a transformative use because I'm not using it to make the declaration, I'm using it to criticize the declaration.

(I believe this comes from an old article by Judge Leval.)

In the samy way, Malkin's use was transformative because she wasn't calling herself a cunt etc., she was demonstrating that another had done so.

Posted by: Paul Gowder | Aug 12, 2005 10:38:05 AM

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