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Thursday, April 12, 2007

There's a bit more on the YLJ Ciolli affair

Just a quick FYI: Thanks to a tip from a YLJ editor, I've reported a new wrinkle and added some reaction to it regarding the surrounding Ciolli/Autoadmit and Yale Law Journal. You can read it about it here once you scroll to the bottom.  Thanks.

Update: The Pocket Part at YLJ has announced a call for papers. Specifically:

The Yale Law Journal Pocket Part is soliciting essays and commentaries on the role of law, policy, and extralegal tactics in regulating instances of cyber bullying, including defamatory "Google bombing." How, if at all, should regulatory schemes address providers of information who make no endorsement of the information's content? The deadline for submissions is Friday, May 4, 2007. For more information, read our Call for Papers (PDF).

Posted by Dan Markel on April 12, 2007 at 02:54 PM in Blogging | Permalink

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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 6:26:19 PM

Anthony, your response is both puzzling and troubling. There's nothing false, misleading, or even about you in the editorial note. For example, it says: "In March 2007, we learned that AutoAdmit.com publishes threats to and defamatory comments about our classmates." It's incontestably true that AutoAdmit.com has published threats and defamatory comments about Yale Law students as well as students from other law schools -- I've seen them, and they are not hard to find. Do you deny that there have been threatening and defamatory comments?

The note goes on: "Because we refuse to play any part, however indirect, in harming the members of our community, we disabled the link." It's undoubtedly true that the comments and posts on the site are harmful. Indeed, harm is the entire point of posts such as "Stupid B---- to Attend Yale Law," which then identified a prospective student by name and targeted her for the vulgar, insulting, hurtful, and threatening remarks that followed. And that's just one thread selected at random from at least a dozen more that I was able to easily locate at the top of the topic list a few weeks ago. Given that, what part of the note is misleading, let alone false?

Posted by: Bruce Boyden | Apr 12, 2007 8:58:47 PM

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 poeple 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 1:58:31 AM

Anthony,

To clarify your position, are you arguing that the YJL note contained "false" information, because there have NEVER been any defamatory posts about anyone on AutoAdmit.com?

Posted by: ikl | Apr 13, 2007 2:55:58 AM

No, that's not my position. For instance, I know for a fact that there have been many defamatory comments about me posted on AutoAdmit. See, e.g., this thread, this other thread, and yet one more thread. Given that there are more than eight million posts on AutoAdmit, it's likely that there are defamatory posts about other people on there just from the sheer volume of posts (just like it's virtually certain there are defamatory comments located somewhere on this very blog, given that it's been around for two years and has literally thousands of comments that haven't been personally verified for accuracy by Professor Markel).

My point is that it's just not possible for a disinterested third party to know--without seeing evidence provided by both parties--whether a statement is actually defamatory, or whether a statement is just true information that happens to be embarrassing or damaging. For instance, I just provided links to several threads on AutoAdmit that claim I'm gay and have appeared in gay porn. I know those threads are defamatory because I know I am not gay and know I never filmed a gay porn movie. But how do you know I am telling the truth? What if I am actually gay, but am telling you that I'm not gay and that those threads are defamatory because I'm embarrassed about being gay and/or did actually appear in gay porn but don't want word to spread about it?

The Yale Law Journal specifically says in its editorial note that it "learned that AutoAdmit.com publishes threats to and defamatory comments about our classmates." To the best of my knowledge, only three Yale Law students in the history of AutoAdmit have ever emailed Jarret Cohen asking for posts to be removed, and two of those requests involved clear expressions of opinion that even they would concede are not defamatory (namely discussions about pictures of them that appeared online). The other student is the subject of the "Stupid B----" thread. Once again, that takes us to the point I made in the earlier post: how is Jarret Cohen supposed to know that this girl doesn't really have a 159 LSAT? Furthermore, how does the Yale Law Journal know this? Three students were admitted to Yale last year who had a 3.75+ and an LSAT below 160--how does anyone know this girl wasn't one of those students, and is saying she was defamed in order to hide an embarrassing piece of truthful information, particularly when she refuses to disclose anything about her LSAT score other than "not 159" (raising the possibility that it might even be lower than 159)?

I don't expect to gain any sympathy by raising this issue, since I know this is an unpopular argument to make given the emotion involved. In retrospect I probably shouldn't have raised it at all since my only real complaint is point #3 since it's the only one that impacts me personally. I fully expect replies such as "It doesn't matter if it's true or not, her LSAT is private" or "Give the poor girl a break, AutoAdmit should delete the thread whether it's true or not." I sympathize with those arguments, and if I was AutoAdmit's sole decision maker I likely would have handled the situation differently (though in fairness to Jarret, he would have deleted the thread had the girl not threatened to bring in "outside legal authorities" in her very first email--Jarret has helped numerous people in the past, but not once has he done anyone a favor after being threatened). But those arguments are very distinct from the argument that those posts are defamatory. Defamation has a very clear legal meaning, and I believe that if a legal publication like the Yale Law Journal is going to use that term in an official statement it should be absolutely certain that the elements of defamation have been met--something impossible to do without special information that the Yale Law Journal doesn't have access to (and if the YLJ does have access to special information I'm curious why that evidence was never shared with Jarret Cohen, who is the only person in a position to actually do anything about the threads on AutoAdmit).

Posted by: Anthony | Apr 13, 2007 3:51:49 AM

Anthony,

Yes, it is a bad argument because you are trying to have it both ways. You are claiming that the YLJ is making "false" statements because they (YLJ) aren't in a position to know whether the statements are true. If one applies the same standard to your claim, it is clear that you also aren't in a position to know whether YLJ's statement is actually false since the truth of their statements depends on other people's LSAT scores, (or on their sexual histories or whatever else people might post about them). So by your own (rather idiosyncratic) standard of "falseness" you have no cause for complaint.

There is a difference between statements that are false and statements that we don't know with absolute certainty to be true. Do you really think that there haven't been any defamatory statements about YLS students on AutoAdmit.com? What about threats?

Be that as it may, what exactly is / was your relationship to AutoAdmit.com? You call them your "former employer," but later refer to your partnership with Mr. Cohen. Are you still involved with the AutoAdmit.com? In what capacity? Do you still have a partnership with Mr. Cohen?

Posted by: ikl | Apr 13, 2007 5:02:37 AM

I didn't say false, I said false and misleading. #1 and #3 are examples of aspects of the editorial note that are misleading (and in the case of #1, also potentially false), and #2 is an example of something that's false as a matter of law, both under 47 U.S.C. 230 and even under the common law: AutoAdmit is not the publisher/speaker/author of those posts, the publishers/speakers/authors are the pseudonymous third parties.

And even if the statement was 100% factually accurate I most certainly would have cause for complaint: my essay was altered, without my consent, three months after publication, to include a link to a page that disparages me. This is highly unprofessional behavior for any academic publication, but unfortunately for me the publication is the Yale Law Journal, I'm a lowly law student, and the journal's statement is denouncing something unpopular.

I'm not affiliated with AutoAdmit.com anymore, I resigned from my position last month and gave up my equity. Some good that's done, given the way I have been treated since then.

Posted by: Anthony | Apr 13, 2007 6:21:01 AM

Anthony,
Given the number of vile threads you yourself took part in on your site it's pretty rich of you to complain about "how you've been treated". You knew what the site was for a long time. You allowed yourself, at least, to be associated with a site that seemed to think that questions such as "did jew bitches give head to get protein in concentration camps?" was a reasonable subject of debate. You yourself took part in threads that abused and slandered your own professors and classmates. You took no steps to dissasociate yourself from any of this until it looked as if it might cause you trouble personally. It's a bit ironic for you to now complain about 'unprofessional' behavior on the part of others. You've made this bed now you're just going to have to lay in it no matter how unpleasent it seems to you.

Posted by: Matt | Apr 13, 2007 7:38:35 AM

As Professor Markel points out, why don't you give friends a link to the PDF version of your essay? (http://yalelawjournal.org/images/pdfs/92.pdf). It looks more official anyway.

Posted by: Anon | Apr 13, 2007 7:47:09 AM

Matt, I sent you an email about this last night, but since you decided to post nearly identical claims on this blog I might as well just save time and post my response to you here as well:

------

Matt,

It's very difficult for me to respond that your allegation that I participated in threads that abused Penn students and professors because we're talking about a time period spanning more than three years and message board with eight million posts. I would like to believe that I haven't abused classmates of mine, but given the time span and sheer volume of posts it honestly wouldn't surprise me if what you say is true. Plus, given your political leanings, it also wouldn't surprise me if you and I have different ideas of what "abuse" entails. In any case, thank you for clarifying your Prawfs comment.

That said, you are certainly wrong that I never tried to discourage that behavior. I have publicly attacked the racists and the abusers on many occasions throughout the three years AutoAdmit has existed, as well as on the old Princeton Review board. Once again, it's difficult to point to specific instances given that we're talking about a board with eight million posts made over a three year period and has a very primitive search feature. However, one of the more recent instances I can think of was my role as a vocal critic of the the hot T14 girls contest, where my efforts ultimately convinced the owner to voluntarily shut it down--even Reputation Defender has acknowledged my pivotal role in the shut down through email, even though they make no mention of it on their website (in fact their website implies that AutoAdmit ran it). All of this took place before a single complaint was ever made about AutoAdmit and that contest (in fact, the one and only complaint ever received wasn't sent until *after* the contest was shut down!). And months before the T14 contest I had also criticized David Lat's numerous involuntary beauty contests, which many respectable members of the blogosphere, with the notable exception of the Feminist Law Professors Blog, actually promoted (see, e.g., http://www.concurringopinions.com/archives/2006/08/above_the_law_w.html )! I have also denounced the racists on AutoAdmit on many occasions (see, e.g., http://www.autoadmit.com/thread.php?thread_id=510231&mc=48&forum_id=2#6828542 and http://www.autoadmit.com/thread.php?thread_id=510231&mc=48&forum_id=2#6828569 -- obviously not the best examples, but it's the best I could find with the limited search features).

I also think it's unfair of you to claim that this was "my" site. Like I told you in my first email, I owned equity in the site but Jarret Cohen has always been the sole decision maker. The only part of AutoAdmit that I had any degree of control over was AutoAdmit Studies. Maybe you think it's "my" site because Jarret and me were the only equity owners. However, I don't see how that should make a difference--equity without sole decision making authority is meaningless. Many sites contain racist content that is generated by uninvolved third parties--go search Google for the racist term of your choice and you'll literally get millions of results. Are all those who own Google stock (which includes Stanford University) supporters of "vile and disgusting racist and sexist hate" because Google links to and keeps caches of sites like http://www.tightrope.cc/jokes.htm? If anything Google is more morally blameworthy than AutoAdmit since it actively seeks out and reposts racist content into its search engine via Googlebot, whereas AutoAdmit is a truly passive actor.

Today I also read your comment on Volokh regarding Adriana Dominguez. Unfortunately, like me, Adriana now has to deal with the repercussions of biased reporting and yellow journalism (see http://firstmovers.blogspot.com/2007/04/blogger-code-of-ethics-how-about.html for some more information about how the media has approached Adriana's story unfairly). As I said in my first email, there's nothing more frustrating in the world than to see things in both print and online media about you or people you know that you know for an absolute certainty from your own experience is simply not true. Like you, I wish that people who don't know Adriana "would not make unpleasant remarks about her, especially ones that require judgments that go beyond what one can reasonably infer from what she has done"--however, I also wish people would extend the same courtesy to me instead of taking the Washington Post, Leiter's blog, etc. as the gospel truth.

Best,
Anthony

------

As for laying in my bed no matter how unpleasant it is, well, that's exactly what I've been doing for the past three years, and especially for the last two, and likely will for the rest of my life. I know that some doors have been closed to me that will never open again no matter what I do, and I'm willing to accept that. I just wish that people condemning me would hold others (such as Google executives, Brian Leiter, David Lat, et al.) to the same standards (or better yet, higher standards, given that they actually have decision making authority over the content of their search engine, blogs, etc.).

Posted by: Anthony | Apr 13, 2007 8:04:45 AM

One important difference between your case, Anthony, and that of Adriana Dominguez is that while what she did may have been foolish it didn't hurt anyone but herself. That's obviously not true in your case.

Posted by: Matt | Apr 13, 2007 8:50:32 AM

You're right that it's not true in my case--while Adriana has not hurt anyone, I have helped many people through my work at AutoAdmit.

My first project for AutoAdmit Studies, The Legal Employment Market: Determinants of Elite Firm Placement, and How Law Schools Stack Up, was the largest and most comprehensive study of law school career placement at elite law firms, and to this date is the only law school career placement study to properly adjust for regional and sectoral preferences. In fact, this AutoAdmit working paper was not only cited by Judge Richard Posner, but the results were used as a component in his own law school rankings paper.

Most recently, I devloped comprehensive biglaw salary charts for New York, Washington, D.C., and eight other major legal markets.

Virtually every day I receive an email or IM from someone thanking me for the positive impact I've had on their lives, from providing law school admissions advice to helping someone go through the law review submissions process as a student to everything in between. While I may regret how some things have turned out, I am deeply proud of a lot of the work I have done as a part of the AutoAdmit community, and I'm not ashamed to admit it.

Now, as for people being hurt through the message board. Once again, I never had sole decision making authority over the board. The message board existed without me for 8 years on Princeton Review, existed without me for 3 months on AutoAdmit (contrary to certain media reports, I did not found the site), and continues to exist now that I'm gone. The board has been largely unchanged for the last 11 years, with the only real notable change being the migration from PR to AutoAdmit in 2004. Since Jarret Cohen has always had sole decision making authority over the board, the board would have had the same policies (and thus the same amount of "hurt") regardless of whether I administered AutoAdmit Studies or not. If anything, my presence greatly reduced hurt, since when Jarret did make a decision to delete certain types of posts (e.g. posts that violate the anti-outing policy) I was around to remove them when he wasn't around to do it himself.

By the way, here's a tip for everyone who wants AutoAdmit to go away for good: lobby law schools and law firms to release full and accurate information about all aspects of law school admissions, law school life, law school career placement, law firm hiring, law firm salaries, law firm working hours, etc. If law schools and law firms were completely transparent on all of these issues, sites like AutoAdmit and Above the Law would not exist (and there would also be no need for other institutions villified by law school deans and faculty, such as U.S. News).

Posted by: Anthony | Apr 13, 2007 9:41:32 AM

Anthony, why do you keep stressing that you would might have done things differently if you had "sole decision making authority" over the board? I'm not saying you're trying to have it both ways, but I'd appreciate it if you'd tell us plainly what you would or would not have done differently.

Additionally, I'm having a little troubling understanding this claim that you lacked the power to take down any posts, no matter how egregious. In my experience, that's simply not how message boards work (or blogs, which in some ways are quite similar--Professor Markel could surely edit my comment right now if he felt like it, although there are many prudential reasons for him not to exercise that power excessively or randomly). And that you lacked sole decision making authority does not mean that you lacked decision making authority altogether.

And given that you're going to argue that (technically only) the XO posts in question are neither defamatory nor published by XO, shouldn't you accept Professor Boyden's technically true statement that there is in fact nothing about you in the YLJ editorial note?

Posted by: Joe | Apr 13, 2007 10:04:04 AM

Joe, I keep stressing it because it's the truth: I almost certainly would have done some things differently if I had sole decision making authority. I don't think it's appropriate for me to say what I would or would not have done differently in actual situations that have occurred in the past without putting all the cards on the table (that is, I'd want to repost the emails received/sent/etc. in their entirety, as well as provide links to all the relevant posts, which I don't feel comfortable doing without Professor Markel's permission), but I can discuss what I would have done differently in general.

Probably the biggest difference between me and Jarret is attitudes towards communication--when people send an email to the contact@autoadmit.com address, my instinct is almost always to respond, whereas Jarret's style is to never respond unless necessary (e.g. asking for more information). In other words, if someone emails demanding that a thread be deleted, and Jarret doesn't think it should be deleted, he just doesn't respond. I don't agree with this style, and I've made it clear to him on many occasions that it's better to respond, even if it's with a simple "No" or a form letter, rather than just leaving people hanging. For instance, this most recent situation likely could have been avoided if Jarret had sent the Yale girl an email saying he was planning to delete that thread after formulating a new anti-outing policy after getting input from the community and law deans (but to be fair there was a complete lack of communication from Reputation Defender, law deans, and other actors).

In Jarret's defense, he regularly works 60-80 hours a week as President of his insurance agency, so I can see why he wouldn't want to spend time responding to those sorts of emails, especially when the sender is threatening him (which unfortunately happens a lot, and is something I truly don't understand--if you want someone to do you a favor, why make threats in your very first email to that person?). One of the reasons I say "might" is because if I was in Jarret's position and working 60-80 hours a week on non-AutoAdmit-related activites I don't know if I would have the time to spend an hour writing a response to an angry letter the same way I'm spending hours writing these blog comments.

I never said I didn't have the power to take down any posts. Jarret asked me to help take down certain types of posts when he isn't online, like when people flood the board with spam, or make posts that violate Jarret's anti-outing policy, or when people post things as school-related when they actually belong in the off-topic section. I never had the authority to make my own policies or delete threads outside those constraints, and doing so would have been a breach of the partnership agreement and potentially subject me to a lawsuit for breach of fiduciary duty, breach of contract, (try explaining that to a character and fitness committee) and other nasty causes of action.

As for your last point, I don't really understand what you're saying. If the YLJ editorial note has nothing to do with me, why does it mention me by name in the note and why was my essay altered to include a link to the note?

Posted by: Anthony | Apr 13, 2007 10:51:10 AM

Anthony, your explanations here are, frankly, ludicrous. First of all, I still haven't seen any indication from you here that you recognize that anything posted on AutoAdmit ever harmed another person (except, apparently, you). That's relevant because one of the reasons the YLJ removed the link was to avoid "play[ing] any part, however indirect, in harming the members of our community." Don't you think that was a reasonable concern on their part? The thread I cited above, "Stupid B---- to Attend Yale Law," is clearly an attempt to *harm*, which is why I cited it.

Second, your claim that the YLJ note is "false and misleading" because no defamation has ever been established in a court of law is extremely weak. Nor did you address the issue of threats. Both are clearly present on the AutoAdmit site. The thread I mentioned has a comment in which the commenter threatens to "sodomize" the student "[r]epeatedly." Another thread announces that a UVA law student is having a party, posts her full name, phone number, e-mail address, and picture, and tells "lurkers" in the area to come to her "gangbang party." As for defamation, I didn't catalog the entire site, but there are unsubstantiated allegations of multiple students lying about their racial background to get into law school, that one student is related to a felon, and that another student "has herpes." If you believe all of those (and no doubt countless more) are true, you have a lot of faith in your colleagues.

Third, your objection that AutoAdmit does not "publish" such comments because it cannot legally be held liable for publishing them is ridiculous. Judges are absolutely immune from liability for poor judicial decisions. Does that mean that judges never issue poor judicial decisions? Under your definition, it would appear so. I think the rest of the world disagrees. Just because 47 U.S.C. s 230(c)(1) says that no website operator "shall be treated as the publisher or speaker of any information provided by" a third party for purposes of tort law does not mean that in fact no website publishes the comments of third parties. The YLJ editorial note is completely accurate in saying that AutoAdmit "publishes threats to and defamatory comments about our classmates."

Your steadfast refusal to acknowledge the pain and harm to others caused by numerous messages on AutoAdmit, combined with a fixation on a perceived slight to your own reputation as a result of a perfectly reasonable YLJ editorial decision, does not paint a very flattering picture.

Posted by: Bruce Boyden | Apr 13, 2007 9:28:05 PM

Bruce, I have published 11 law review articles while in law school, and I, as well as anyone else who has ever published a law review article, knows that the unsubstantiated statement made by the Yale Law Journal would never appear in an actual article in the Yale Law Journal or any other respected law review. Any author attempting to include a sentence like "AutoAdmit.com publishes threats to and defamatory comments about our classmates" in a law review article would be asked by their article's editor to either (a) provide evidence that AutoAdmit actually publishes these things, like a court decision or a statement from an AutoAdmit owner (b) tone down the statement by including a phrase like "Some have alleged that AutoAdmit.com publishes..." or (c) remove the statement entirely. You're right that some of the statements on AutoAdmit may harm Yale students even if they are true (such as the felon thread, which while hurtful is based on truthful information, substantiated by a 4th Circuit decision and several newspaper articles). Putting aside the issue of altering an author's work without consent, if the Yale Law Journal had to issue a statement it could have very easily limited that statement to truthful information by saying "Because we refuse to play any part, however indirect, in harming the members of our community, we disabled the link." and leaving it at that without going into this defamation or publisher stuff. I don't think it's unreasonable to hold the Yale Law Journal to the same standards it holds its authors.

As for your last comment, it's not just a matter of law that AutoAdmit does not publish these comments, but a matter of simple fact. After all, there's a reason the common law developed this way. A newspaper stand that sells or gives away copies of a newspaper that contains defamatory information is clearly not a publisher of that newspaper, but a distributor, because the newspaper stand does not edit the newspaper prior to publication, and the only thing the newspaper stand owner can do upon discovering defamation is to either stop selling or giving away the newspaper or edit the newspaper after publication through very crude means, such as physically cutting the defamatory articles out while leaving the rest of the newspaper intact. AutoAdmit is clearly a distributor here since no one has alleged that AutoAdmit or any of its owners or employees actually authored or produced any of the allegedly defamatory threads. Just as Typepad/blogs.com does not publish PrawfsBlawg, AutoAdmit does not publish "Stupid B---- to attend Yale Law."

Like I said, I'm not expecting any sympathy here. However, given the recent outcry over SSRN altering uploaded papers to include a simple watermark (see here, here, and here) you'd think more professors would see the danger of law journals altering online articles after publication to refer readers to pages that disparage the author. Today it's me and AutoAdmit, five years from now it might be Eugene Volokh and the Federalist Society.

Posted by: Anthony | Apr 14, 2007 10:56:35 PM

Anthony,

Your responses to these posts are highly puzzling. It is bizarre that the YLJ states that you "publish" defamatory statements, and you respond by referring to a statutory term of art which purportedly vindicates you.

The argument over section 230 is much like arguing over protocol on a sinking ship. No one is saying that you "publish" for purposes of tort liability. When people say that you publish these statements, they mean it in the same way that a person might say that "the local paper published my letter to the editor." Ultimately, it is strange that you respond to criticisms regarding your activities by seeking refuge in statutory enactments. What you don't seem to get is that those in the legal community have turned against you not because we have put on our spectacles and pored over the United States code and court decisions and discovered you have violated some priciple of law, but because your active encouragement of hurtful statements violates the standards of the legal community. So you are not a "publisher" within the meaning of a statute? So what. Do you think those who are criticizing you base their position on a statute?

Your response to the accusation that the remarks on autoadmit are defamatory is bizarre. Maybe some of them are not "defamatory," but you are not being criticized because those remarks might be found defamatory in a court of law, but because the legal community looks down upon people who encourage posts like "Stupid b*tch attends Yale law." It simply doesn't matter, as you allege, that many of the statements are ones of opinion rather than fact -- your critics just don't care whether those statements meet the techincal definition of "defamation." We recognize that it's not illegal for you to use refuse to exercise whatever authority/influence you may have to delete a posting that says that a female law student should be raped, stalked, and gangbanged. That's just beside the point. We're not saying that you have broken the law, but that by your interest in the site, you have revealed conduct unbecoming of that of a member of the legal profession.

And you keep arguing that you could not do anything over the comments posted on autoadmit. But, actually, you could have -- you could have resigned as soon as the site turned into a vehicle to attack members of the legal community. Instead, you resigned only when Google decided to pull its ads, and apparently only when a member of the xoxo community emailed some Harvard law professors. If the latter was the true reason, it's not clear why you did not resign as soon as the attacks begun, rather than only when your financial rewards disappeared.

Posted by: Mary L. | Apr 14, 2007 11:52:26 PM

Mary, the local paper publishes letters to the editor because it exercises traditional editorial functions prior to publication. The paper rejects the overwhelming majority of letters, and then edits (often heavily) the letters it does select for grammar, length, defamatory content, etc. AutoAdmit does not perform such editorial functions, just like Typepad does not perform any editorial functions over PrawfsBlawg. AutoAdmit, like Typepad and the newspaper stand owner mentioned in my last post, is clearly just a distributor, both as a matter of law and as just plain common sense. It's not like the law developed in a vacuum here.

Financial rewards? Really? What financial rewards? Because I certainly haven't received any. Neither has Jarret. In fact, Jarret has likely lost thousands of dollars keeping that message board alive. Google ads were only up for less than a year, and all those revenues went directly to covering expenses for that year and the previous two.

As for the rest of your comment, including the false claim that I refused to exercise any influence with Jarret, please read my earlier comments in this very thread, particularly my reply to Matt Lister.

Posted by: Anthony | Apr 15, 2007 12:21:32 AM

Anthony,

Would you have preferred that YLJ included redacted excerpts from some of the posts in question? Then readers could decide for themselves where or not they were threatening or defamatory.

To avoiding any misunderstandings about the nature of your relationship to the website perhaps they ought to have clarified that you (a) were co-owner of AutoAdmit.com, (b) assisted implementing policies of your partner in removing certain threads and posts (but not the threads or posts in question), (c) ignored the requests of some victims of cyber harassment on the site to remove harmful posts about them (d) publicly defended AutoAdmit.com from criticism of the forum as a cesspool of racism and sexism and a tool of those who harass and threaten female classmate behind a veil of anonymity. Wouldn't this have avoided any misleading vagueness about the nature of your relationship to the site?

Or perhaps your real problem with the editorial note is not that it is “false or misleading” but rather that it calls attention to some rather ethically dubious activities on your part. There might be a case to be made that it is not really appropriate for YLJ to use its editorial powers to sanction authors for reprehensible behavior unrelated to their publications, but this has nothing to do with defending the moral or legal probity of your activities with regards to AutoAdmit.com. In any case, you are in a very bad position to be complaining about editorial decisions made by managers of websites . . .

Posted by: ikl | Apr 15, 2007 2:27:20 AM

Anthony, I think you're still dodging the issue. You now admit that some of the statements on AutoAdmit "may" be harmful; you still haven't addressed the threats issue. With respect to the word "defamatory," your concern seems to be that the YLJ didn't provide proper citations for its editorial note. I'm not aware of a rule that editorial notes provide citations.

As for the ordinary meaning of "publish," let's just look at the dictionary: "1a: to make generally known b: to make public announcement of 2a: to disseminate to the public b: to produce or release for distribution; specifically: PRINT c: to issue the work of (an author)."

It looks to me like AutoAdmit is "making" the comments in question "generally known" and "disseminating" them "to the public." And intent is irrelevant here -- the operators of AutoAdmit are clearly *aware* of the posts in question, and could long ago have taken them down if they wished.

Despite your reluctance to admit it, the statements on AutoAdmit are clearly harmful to Yale and other students, and AutoAdmit itself is in part morally responsible for that harm through its failure to act. In light of those facts, your concerns about the definitions of "defamation" and "publish" amount to little more than pettifoggery.

Posted by: Bruce Boyden | Apr 15, 2007 2:55:14 AM

Anthony - I don't think you have yet learned how law firms work. All that matters is retaining and bringing in clients. You think you matter? Look up FBU. That term describes everyone but equity partners.

All a firm needs is one complaint about an associate to rescind an offer (with employment at will, they don't even need that) - they may have received it, they may have only assumed that they would in your case. Clients don't care about your definition of 'publish' or whether or not you had the ability to set policy. All they care about is the intersection of your name, the firm's name, and quotes from some of the more offensive (not even defamatory) posts on AutoAdmit. That's it - you're gone.

No partner is going to risk losing a client over some idiot first year's website, whatever it was. Ever. They care about freedom of speech - for their clients. They care about fairness and justice - for their clients. And they care about the definition of 'publish' - when their clients were accused of publishing something. They don't care about any first year, which is what you hope to be.

My advice? Legally change your name, and move to NY, where you will enjoy the protection of the NY Recreational Activities Act, for whatever that's worth. Someone may hire you there. Just in case, and because you haven't earned any money from AutoAdmit to tide you over, I'd set my sights a little lower in terms of status.

And figure out how to deal with this question:

You've given me the legal answer about why you should not be held accountable for the comments on AutoAdmit - now give me the real answer. Why should I hire someone who had the appallingly bad judgment to run a website where comments were posted that denigrated women and minorities - among others. If you played this fast and loose with your own reputation, how can I trust you with the reputations of our clients?

Your next employer doesn't care about whether you are legally responsible - they care about what your activities say about your judgment. And your defense here doesn't help.

I wouldn't hire you, and I don't know any attorney who would.

Posted by: Tor | May 3, 2007 4:56:50 PM

Tor, your comment would seem to be a bit of a non-sequitur. Were you so overcome by schadenfreude that you had to comment on SOME thread regarding Ciolli, whether your penetrating insight had anything to do with the original subject -- which was modifying an online legal journal after publication?

Posted by: shocked and appalled | May 4, 2007 12:34:22 AM


Shocked,

The subject ceased to be "modifying an online legal journal after publication" long ago. Everyone seems to get this. Except you and Ciolli, that is.

Posted by: amazed at incomprehension | May 4, 2007 1:17:59 AM

"The subject ceased ... long ago."
Yeah, I was also kinda wondering why there was a three-week gap between his Ciolli-bashing comment and the last previous one, which managed to reference the subject of this thread, the Yale Law Journal -- as had all but one of the previous comments.

Posted by: shocked and appalled | May 4, 2007 5:08:25 PM

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