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Monday, April 09, 2007

Ain't Misbehavin'? Or, Much Ado About a Footnote

N.B. There's an important update at the bottom of this post.
And yet another update too now.

Thanks to Dave Hoffman's tip, I'm listening to Billion Dollar Charley's moderation of an HLS panel discussion on Autoadmit.com.  You probably have heard via Leiter or other sources about this controversy.  But, in sum, as a result of escalating outrage arising in response to Autoadmit or actions taken by some of its participants, Anthony Ciolli, one of the students involved with the site apparently resigned as "Chief Education Director." Ciolli is now a 3L at Penn and he continues to blog at First Movers, the pre-prawf blog that's part of Dean Jim Chen's Jurisdynamics network.

There's a new wrinkle though.  In a post entitled the Perils of Publishing in Online Law Reviews,  Ciolli now claims, however, that notwithstanding his resignation from Autoadmit, his December 2006 essay in the Yale Law Journal's Pocket Part, which I blogged about here, has been subsequently doctored by editors at the Yale Law Journal. 

Ciolli wrote that the editors at YLJ altered his essay to

include a link that refers readers to a webpage that contains false and misleading information about my former employer and me personally. This was done without my consent, and without even contacting me before a decision was made to get my input. I have been told that the Pocket Part did this due to pressure from certain individuals within the Yale Law School community who were upset about perceived inaction by my former business partner on issues that I had absolutely no control or authority over. [Ed. Leiter contests this claim in his recent post.] My essay, which was about the impact blogs have on student scholarship, had absolutely nothing to do with this recent controversy except that it mentioned the position I held at the time in my author byline at the very end of the essay.

If you go to the essay, it looks like what the YLJ did was simply disable a link to autoadmit.com and they did so with the following explanation:

When we published Anthony Ciolli’s essay in December 2006, we chose to link the text of his biography that references AutoAdmit.com to the website www.autoadmit.com. In March 2007, we learned that AutoAdmit.com publishes threats to and defamatory comments about our classmates. (To read Dean Harold Hongju Koh’s statement regarding AutoAdmit.com’s postings, visit http://www.law.yale.edu/news/4789.htm.) Because we refuse to play any part, however indirect, in harming the members of our community, we disabled the link.

A co-blogger of Ciolli's on First Movers  raises the following two important questions to Ciolli, which remain unanswered so far:

Anthony,
After reading your posting, I went to the Pocket Part to get a better idea of the alteration you described. By no means do I condone an editor[']s unilateral change to an author's work, but I have two issues I was hoping you or others would elaborate on.
1. The Editor[]s did not (apparently) delete any content from your article, but instead removed a hyperlink. They retained information relating to your association w/ AutoAdmit -- so the lingering question boils down to whether removal of a hyperlink, but retention of the original language constitutes 'altering' your content. I'm not sure that it does (although, I think it is entirely too close of a call to make without at least advance warning). While it potentially changes the reader's experience with your work, the underlying information is still available, and the 'alteration' is acknowledged and explained. Thoughts?
2. You noted that the editorial note contained "false and misleading information" about AutoAdmit and you personally. I certainly don't know all of the underlying events, but is it not accurate to say that "threats" and "defamatory comments" were posted on the site by users?

I thought these comments were helpful in contesting the scope of Ciolli's gripes against the YLJ and its desire to have "clean hands."  (This clean-hands problem arose last year also in the context of the Kiwi Camara-Paul Gowder article YLJ published.)

Nonetheless, there is something a little strange about YLJ changing the text of an article (even if it is just an aspect of the byline) after it has been published, and to do so without advance notice and discussion with the author. (Update: it looks like there was advance notice, just not discussion with the author.) Even if one has utter disgust for the crap that has appeared on Autoadmit, and one should, there's also the matter of YLJ's behavior to consider, if in fact it was done unilaterally.  Indeed, given that Ciolli has purported to distance himself from Autoadmit, I wouldn't be surprised if someone in his shoes would have acquiesced to the disabling of the link as a gesture of good faith. Alternatively, had YLJ asked him if it was ok to disable the link and Ciolli refused, then that would have also given YLJ more evidence of recalcitrance on Ciolli's part, rather than distancing from complicity, and perhaps that would have justified the disabling of the link w/o Ciolli's approval. 

Relatedly, and also at Co-Op, Alice Ristroph, my favorite professor in Utah, reflects on the new blogger code of ethics discussed in today's NYT.  She suggests that we might not want to tamp down the cheek and belligerence of the internet lest we impede people from displaying "their true colors."  She asks:

do we want to obscure those colors? I recently watched Harvey, the classic old movie in which James Stewart plays Elwood P. Dowd, a very generous and kind but perhaps slightly crazy man with a six-foot rabbit as his companion. A taxi driver warns Dowd's sister that if she has her brother "cured," he will become "a perfectly normal human being, and you know what stinkers they are." Could internet rudeness be a useful and comparatively harmless reminder of what stinkers we are?

I'm not sure what Alice's claim is here: is the idea that even comments that veer into threats and defamation should be protected to remind us of what stinkers we are or just garden variety biliousness?  When is this speech "comparatively harmless"? This seems important since what seems to be triggering these blogger codes of ethics regarding discussion boards and comments on posts are those instances of speech that are not actually protected (e.g., threats of rape and murder).   As a general matter, I think I share Patrick O'Donnell's reaction to Alice's provocation: "Alas, we've plenty of daily reminders of what 'stinkers' we are or at least can be, [and] perhaps it's time we establish norms and models that are worthy of imitation and emulation, that set a more elevated tone or encourage a more virtuous ethos. "

Update: Check out Paul's post below for his invariably thoughtful reactions to the NYT piece about blogger codes.

Update (again): Wow, just spoke with YLJ's EIC (who it turns out, I just realized, is a friend of my wife's) and it turns out that Ciolli actually was contacted by the YLJ before the alteration was made to Ciolli's essay.  Ciolli even mentioned the contact he had rec'd under his nom de plume on Autoadmit.  Through some careful wording in his post on First Movers, Ciolli left me with the  impression that he was sandbagged by this development when in fact he chose not to respond to an email to him that informed him of what YLJ stated its plans were.   That said, having seen the letter YLJ  wrote to Ciolli,  it is clear that YLJ's  plans to  change the essay were not an invitation to discussion or negotiation, since the letter opens with "We are appalled by the postings on AutoAdmit.com that threaten and defame our classmates, and we have decided to disable our website’s link to www.autoadmit.com. This letter describes the effects of that decision and our reasons for it."

Here's what I take to be the upshot of the saga: YLJ gave advance notice to Ciolli and had Ciolli wanted to find a solution better than what was proposed, he could have tried to have done so but he didn't even bother to respond.  Still, YLJ did act unilaterally upon an author's work, which strikes me as problematic; authors should make sure they have control over these things in future contract negotations with law reviews.  As for Ciolli, the harm he will suffer from this latest episode is comparatively small (relative to the other shitstorms in which he finds himself) and is minimized in part  because the PDF version of his essay (which is lodged in Westlaw and Lexis) remains unaltered. 

4/12 UPDATE: Yesterday I rec'd another piece of information from YLJ regarding Ciolli's Pocket Part piece.  According to the editor I heard from, the editing process between Ciolli and YLJ had multiple drafts. "None of the drafts—inclusive of those Mr. Ciolli submitted to the Journal—contained a hyperlink to AutoAdmit.com. Instead, they contained the unlinked text that currently appears in the Pocket Part."  The editor at YLJ "unilaterally added the link, without author consent, during publication. If anything, our recent change restored the text to the version the author approved prior to publication." The editor brought this to my attention because I had written “YLJ did act unilaterally upon an author's work, which strikes me as problematic.”

I'm not sure how much this recent information absolves YLJ. For one thing, to  add link(s) that the author didn't approve is not exactly respectful of an author's product, but I think we can agree the editor's initial handiwork here represents, at worst, a de minimis intrusion.  The so-called "restoration" might be fine in a vacuum, but of course what Ciolli probably objects to is the new coda that YLJ added at the end of the piece.  Perhaps if YLJ disabled the link but also removed the addendum -- "For an editorial note regarding AutoAdmit.com, click here." -- then YLJ could say, hey, this is what the author gave us, and this is what we've published. End of controversy.

I'm guessing that the downside of that is that it would deprive YLJ editors of the opportunity to denounce Autoadmit for the harmful things that have been posted on the site.  I hope my friends on this year's board at YLJ don't think me ill-mannered for wondering aloud whether YLJ's action may have been perverse, ultimately drawing more attention and traffic to the Autoadmit site as a result of its "restoration." (And of course, the more I blog about it, the more complicit I am too in that respect...)

Posted by Dan Markel on April 9, 2007 at 09:53 AM in Blogging | Permalink

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PROPOSING A BLOGGER CODE OF CONDUCT: Last week, Tim O’Reilly, a conference promoter and book publisher who is credited with coining the term Web 2.0, began working with Jimmy Wales, creator of the communal online encyclopedia Wikipedia, to create a... [Read More]

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Comments

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Ciolli is pretty clearly underplaying his involvement with the 'controversy' at his racist, sexist hate site. He was pretty clearly deeply and personally involved in the actions and to claim otherwise is obviously dishonest. It's also pretty clear that he continued to be involved with the site after he 'resigned'. It's also pretty rich for him to complain about 'false and misleading' information about him being put on the web, even if it were true.

Posted by: Matt | Apr 9, 2007 10:51:01 AM

Matt, just to be clear, I don't have any soft spot for Ciolli or the website and I hope my post didn't indicate as much to you or to others. Indeed, I have no reason to doubt what you say regarding his resignation, which is why I initially referred to it as an "apparent resignation," and I also thought my doubts about his claims were made clear by my agreement with the questions posed by his co-blogger. My post was instead intended to focus more on what YLJ did and the more general issue associated with anonymity on the internet.

Posted by: Dan Markel | Apr 9, 2007 11:33:46 AM

Hi Dan- I'm sorry if I looked to be criticising you- I didn't mean to. I thought the post was good and right. I merely wanted to highlight the irony of Ciolli crying here. I don't have a firm opinion on what the YLJ should have done though I'd guess that at least telling Ciolli that they were (unilaterally) making the change would have been reasonable.

Posted by: Matt | Apr 9, 2007 12:01:55 PM

I think Alice's point is meant to point out that sometimes we forget how crazy some of our fellow human beings are. For example, in the Tim Hardaway bruhaha, reading some of the comments on articles reminded me of how much homophobia and bigotry there is in the world. Similarly, I recently saw apparently serious Holocaust denial postings on a Facebook group. Its a good idea, if we get too ensconced in comfortable liberal worlds, to be reminded of some of the retrograde viewpoints out there.

Posted by: Bart Motes | Apr 9, 2007 5:59:34 PM

I think I see where Ciolli is coming from here. His issue is not with the disabling of the link. It's with the addition of the explanation at the bottom. The problem with the explanation is that it suggests, right or wrong, that there is a negative association with autoadmit, and therefor with Ciolli. Anyone who goes to read his article online and scrolls to the bottom and clicks on the explanation, will see only comments that are negative about the site which he is associated with. It doesn't seem quite right, regardless of his actions (which I honestly don't know enough to speak about).

Perhaps this is simply my reading into things, but this feels more like someone taking a swipe at him than any principled notation.

Posted by: Uhh | Apr 9, 2007 7:40:17 PM

I don't mean to be snarky, but Mr. Motes, this comment of yours bothered me:

"Its a good idea, if we get too ensconced in comfortable liberal worlds, to be reminded of some of the retrograde viewpoints out there."

This is probably my slanted reading rather than any intent of yours, but it seems to too strongly contrast "liberal worlds" with the "retrograde" views that are far "out there." Sadly, I've heard far too many retrograde comments WITHIN "comfortable liberal" cocoons to accept any implied dichotomy between liberal and retrograde.

Posted by: self-critical | Apr 10, 2007 2:07:14 PM

What were the defamatory comments on autoadmit.com? Some posters made sexual comments about a few YLS students but I couldn't find anything that appears false, in that much, maybe too much, evidence was provided to support their claims.

Posted by: Kant | Apr 10, 2007 5:48:56 PM

I wrote about a NYT article entitled "A Call for Manners in the World of Nasty Blogs." It opens with the question, "Is it too late to bring civility to the web?" There is plenty of room between good manners and illegality. American law has consistently and repeatedly distinguished between speech that may be penalized as defamation or a criminal threat and speech that is simply uncivil or ill-mannered. (Compare Virginia v. Black with Cohen v. California.) To cry "defamation!" or "illegal threats!" as a response to my comments blurs this distinction, and I think it's worthwhile to preserve it.

As to why bloggers might permit uncivil discourse, I was thinking (as Bart suggests above) that anonymous speech on the internet does make visible facets of our society that are worth seeing, and that will not go away just because a blogger disables comments. Also, though I didn't articulate this in my post at Concurring Opinions, I'd guess that our judgments about what is "uncivil" are often bound up with the substance of the comments. Civil disagreement is certainly possible, of course, and some uncivil speech articulates no ideas at all. But when speech does articulate an idea, I think we're somewhat more likely to find it uncivil if we also disagree with its content.

Posted by: Alice Ristroph | Apr 10, 2007 7:03:56 PM

Alice, thanks for the clarification as to what you meant re: the scope of rudeness. As my post tried to make clear, I wasn't sure how far your taste for allowing rudeness would go given your initial post. So I don't think I tried to blur the distinction you mention in your comment, but simply asked just how far you were willing to go down this road of rudeness. It seems like you're willing to embrace only I called "garden-variety biliousness" rather than anything currently deemed illegal. I agree with your second point. Thanks.

Posted by: Dan Markel | Apr 10, 2007 7:29:29 PM

I tried to post the following comment at Concurring Opinions and was told it was being held for approval (no small irony there). If the past is any guide, this means my comment won't be posted.

I wholeheartedly agree with Alice that 'there is plenty of room between good manners and illegality,' and my call to 'set a more elevated tone' hardly rules out the possibility that folks might be prone to accusations of uncivility if content rubs them the wrong way. I think we're perfectly capable of adjudicating matters of (or questions of) morals and manners without the State or a Church, and this is set in motion in part through the ethos of exemplars. I envision the tone referred to here being entrenched over a long period of time through noncoercive social norms, and thus need not involve any heavy hand of censorship or oppressive rules of one sort or another. Nevertheless, it takes some thought, imagination and effort to plant such norms and those who run blogs could set an example (and of course to a large degree many already are). In other words, perhaps we can develop the blogospheric *analogue* of the Enlightenment's Republic of Letters (Thus, Dan Markel, Daniel Solove and Ann Bartow, for example, could bring to mind the exemplary guidance of a Marie-Therese Geoffrin, or a Julie de Lespinasse, or a Suzanne Necker! My picture of these remarkable women is beholden to Dena Goodman's The Republic of Letters: A Cultural History of the French Enlightenment (1994). Those tired of all-things-French, might look at David Shields' Civil Tongues and Polite Letters in British America (1997)). Consider, if you will, the following from Steven Kale's French Salons: High Society and Political Sociability from the Old Regime to the Revolution of 1848 (2004):
'...[T]he salon was able to accommodate activities and anticipate forms of interaction that were being created by protracted historical pressures but had yet to be sanctioned by convention or law. This is why most attempts to move beyond definitions of the salon or descriptions of ideal types of sociability slip into analogy: the salon was like a royal court, a university, an academy, a republic, a monarchy, a publishing house, a medium of communication, or some other institution or practice whose function was ambiguous and to which contemporary society had yet to attach a name. Salons could be either marginal or mainstream, bourgeois or aristocratic, courtly or enlightened, hierarchical or democratic, mixed or exclusive, public or private, feminist or masculinist, leisurely or "work-like," frivolous or serious, literary or political, or both. In all this confusion, one things seems clear: in the French context at least, salons always filled some sort of institutional vacuum at the intersection between public and private life left by the decline of certain cultural, social, or civic institutions and the rise of others that had not yet taken root.'

Posted by: Patrick S. O'Donnell | Apr 10, 2007 9:26:54 PM

Update: CO has in fact posted the above comments.

Posted by: Patrick S. O'Donnell | Apr 11, 2007 1:31:24 AM

I hope someone is meticulously documenting Ciolli's online personae, including his postings under the moniker "Great Teacher Onizuka" or whatever the hell it is. It all needs to be submitted to the bar admissions folks when he gets ready to apply for admission.

Posted by: James | Apr 11, 2007 10:32:46 PM

Patrick -- The message you got at Concurring Opinions was our spam filter, which for some reason labeled your comment as spam. It gives out that message, but the message that your comment is being held for review is a lie. It goes directly into the junk folder and the blogger isn't notified. So if you get that message, email the blogger immediately to fish the comment out of the spam filter.

Posted by: Daniel J. Solove | Apr 11, 2007 10:41:29 PM

Dan,

Thanks--Alice R. also sent me a note explaining everything. Being more than a bit under the weather it was easy for me to imagine this happened for all the wrong reasons, as it wasn't allowing me to post comments until I changed my e-mail address; then, a few days later, the new address was also not working. So I've chalked up my paranoia to a mind addled by fever and Alka Seltzer cold & flu medicine.

Posted by: Patrick S. O'Donnell | Apr 12, 2007 12:23:07 AM

Removing a single link -- no matter who added it -- doesn't seem to me to be all that problematic. Links are in part functional, and seem to have only a comparatively minor expressive element. (See, e.g., the discussion in Universal City Studios v. Reimerdes.) If a journal decides that it no longer wants to have an active link to, e.g., Don Imus's show, I don't see why the original author of the piece should have the right (even a moral right) to insist that the link remain active.

Posted by: Bruce Boyden | Apr 12, 2007 5:05:19 PM

I think it's important to clarify something: I don't care about the link. I don't own AutoAdmit, I don't work there anymore, and I don't care how much traffic it gets, and if the Yale Law Journal had asked me for my input before taking unilateral action I would have not only requested that the link be removed, but the reference to AutoAdmit entirely.

My problem is with the editorial note. Because of that note, which contains false and misleading information about me (as well as AutoAdmit). I simply cannot feel comfortable sending a link to my Pocket Part piece to anyone now. The sad thing is this whole situation could have easily been avoided if someone from the YLJ had just sent me an email asking to work out a solution together (not sure why, but everyone at Yale seems to have a problem with direct communication, from the YLJ to Yale Law Women to the Dean's office).

Posted by: Anthony | Apr 12, 2007 6:27:17 PM

Anthony,

How is this for direct communication:

1. Which part of YLJ's editorial note was false?

2. Which part of YLJ's editorial note was misleading? How so?

Posted by: ikl | Apr 13, 2007 1:51:25 AM

There are several false and misleading statements in the editorial note. Defamation has a very clear legal meaning and most (if not all) of the posts in question, while offensive and in bad taste, are not defamatory. "Stupid B---- to Attend Yale Law," for instance, is clearly an opinion and not a statement of fact. Furthermore, there is no evidence that the statements that could be construed as statements of fact, like the allegation that the girl in that thread has a 159 LSAT, are actually false. Given that Yale Law School admitted three students with 3.75+ GPAs and sub-160 LSATs last year, there is a possibility that the statement actually is true (and the only people who can prove it false--the girl, LSAC, Yale's dean of admissions--have not released the information).

Second, AutoAdmit did not publish any of this information. In the absence of Section 230, AutoAdmit would likely be treated not as a publisher under the common law of defamation, but a distributor. After all, AutoAdmit itself did not author any of this content--unaffiliated third parties did--and AutoAdmit did not prescreen content before it was posted or advertise itself as a place that prescreens content. An individual reading that editorial note who is unfamiliar with AutoAdmit would conclude that AutoAdmit itself was authoring defamatory comments, which is simply not true.

Third, and most importantly, because the editorial note is linked to from my Pocket Part essay, readers would be misled into thinking that I somehow had decision making authority over the AutoAdmit message board. This is simply not true. My title at AutoAdmit was Chief Education Director. I had that silly title for a reason--I was the administrator of AutoAdmit Studies. Jarret Cohen has always had sole decision making authority over the message board--in fact him retaining absolute control over the board was a provision of our partnership agreement. Believe me, if I had sole decision making authority over the message board, I would have done things differently.

Once again, my real problem here is altering my essay's page to include a link to that statement, and implying that I was in a position to do something about what they're condemning without subjecting myself to a potential lawsuit for breach of fiduciary duty, breach of contract, and other assorted causes of action. I wouldn't care if the Yale Law Journal condemned AutoAdmit elsewhere on its site--in fact, depending on how that condemnation statement was worded, I might have signed it myself!

Posted by: Anthony | Apr 13, 2007 2:02:56 AM

Anthony --

According to one of the participants in the Harvard panel discussion about Autoadmit led by Charlie Nesson, your response to a woman who asked for an offensive comment about her to be removed, was to send her a link to:

this comment by you.

If you were one of the founders of Autoadmit, then presumably you could have done SOMETHING to help this woman. Instead, you apparently, very callously, ignored her request, except to send her a link to a comment describing your annoyance at being contacted personally.

Even if it is true that you took no role in deleting postings, it strains credulity to think that you could not respond to her with some measure of compassion, and do something to help her.

And, given that the abusive and offensive comments about people were being posted on Autoadmit, why did you remain involved with it?

Posted by: James | Apr 13, 2007 9:49:17 PM

James,

The link you posted gives instructions on how to handle complaints. It says, in clear terms, how to get in contact with the people who handle the discussion board. What is difficult about this instruction:

"So, in conclusion, if you want to contact us, email us at the contact email, and ONLY the contact email. Thank you."

So, had she followed the directions in that link and semailed the contact address, there would not have been a huge issue.

Posted by: RMCACE | Apr 14, 2007 1:58:36 AM

Oh noes! She didn't follow the proper format! She had what most people would consider to be a valid complaint, but she didn't send it to the proper address. And you were only a poor helpless drone co-owner of the site!

I've emailed CEOs before, of multi-million dollar businesses, about issues far less important in the grand scheme of things, and recieved prompt replies and action from the company in question. I have never received a link to a snotty post on a bulletin board complaining about all the onerous mail the poor CEO received. Further examples of poor judgment.

"Anthony Ciollo - I am concerned that I was billed improperly. Can you follow up? - Client"

No - please follow this link to find out how best to resolve your issue. Good luck. - Anthony"

Posted by: Tor | May 3, 2007 5:41:24 PM

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