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...)