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Monday, November 12, 2007

AutoAdmit Complaint as a Teaching Tool????

In keeping with my earlier thoughts on the major procedural and jurisdictional issues in the AutoAdmit case, I would like to pose the following question:

Is it a good idea to use the AutoAdmit complaint in class to teach the various procedural and jurisdictional material illustrated by the case? On one hand, the events detailed in the complaint are so offensive as to be disconcerting and distracting to many students. And they likely are uniquely so to female students because of the explicitness of many of the threats of sexual violence; a female colleague I trust suggested that the sexual violence ttakes this beyond the ordinary disgusting speech situation. On the other hand, the extreme offensiveness may make it a better teaching tool. It forces students to get beyond their visceral reactions to the case to see and work through the issues that underlie the merits and that may, at times, override those merits (here, by potentially depriving them of their chosen forum) and overwhelm the simple dichotomy of sympathetic plaintiffs and unsympathetic, hiding defendants.

Do the obvious costs of the offensive nature of the material described outweigh the teaching benefits? I really would like to hear thoughts from prawfs and students, especially women.

Posted by Howard Wasserman on November 12, 2007 at 04:04 PM | Permalink

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Comments

(F)FAH:

As a normative matter, I agree with you that the law-school classroom, like much of society at large, should be a First Amendment free-fire zone. And I would love to be able to conduct myself and my classes accordingly. The descriptive matter is much different. Students (anectodally, it at least seems, female more often than male) get offended by sexually offensive content in the classroom, which, it is argued, creates a hostile learning environment. And in this case, the material is not only sexually explicit, but involves threats of sexual violence, a form of speech that, arguably, uniquely affects women. In the perceived old-boys' club of law school, that can have a powerfully negative effect. And remember that my concern need not be about all or even most of the students taking offense. It only takes one student in a class of 100 to complain to a cowed administrator and/or to a sympathetic faculty member.

Now, I think context matters. As I said in an earlier comment to this post, if this were a First Amendment class, the entire complaint gets used, because the very issue is whether or not the speech is protected from liability. Students know coming in that offensive material is an essential part of that class. Similarly, teaching Plessy or Bradwell or Bowers in a 14th Amendment class is essential. And most administrators would agree with that. But how much of the gory detail in the AutoAdmit complaint is essential to grasping and dealing with the procedural/jurisdictional issues in the case? Is it worth potentially offending that one especially-sensitive student who might then complain and create lots of unnecessary problems? It is much easier to lose administrative support.

Posted by: Howard Wasserman | Nov 14, 2007 10:04:27 PM

I am concerned about this discussion to the extent that it implies your delicate female law students will not be able to deal logically with the issue of offensive speech when it is about women.

The cases raises several interesting procedural issues (especially regarding whether notice can be given by posting on a website) as well those relating to the intersection of tort law and the First Amendment. Shying away from such an interesting case because you fear a certain group cannot handle the speech at issue is just as problematic as refusing to cover, say, Plessy v. Ferguson.

Part of living in a free society means hearing all sorts of speech with which we disagree, and there's no reason to insulate a classroom from the world at large.

Posted by: (Female) First Amendment Hardliner | Nov 14, 2007 3:01:02 PM

Interesting, I thought all of the fake "Brian Leiters" were PRO-AutoAdmit.

Posted by: Bruce Boyden | Nov 14, 2007 1:01:23 PM

It would have to be substantially edited, per the last comment.

Also, what on earth is "Belle Lettre" talking about? "I do not think students have the right to excuse themselves from learning 'offensive' material just because of moral objections." On which view of morality is it not offensive to say of a woman that "she clearly deserves to be raped so that her little fantasy world can be shattered by real life" (paragraph 23) or "I would like to hate-fuck [her] but since people say she has herpes that might be a bad idea"? The particular allegations have no bearing, I take it, on the central procedural issues, so they ought to be purged. There is nothing to be "learn[ed]" from these comments, other than the sheer depravity of some anonymous boys.

Posted by: Brian Leiter | Nov 14, 2007 8:19:28 AM

I think it is an excellent teaching tool. I just discussed this question at length with a group of colleagues (not from the law school), and the consensus seemed to be that it would probably be best used in edited form, cutting out a lot of the graphic statements and replacing them with a notation to the effect that you have edited out some of the statements. I think this is defensible, since frankly the complaint gets a bit repetitive, and since having the students read all that disturbing language does not have much pedagogical benefit after a certain point (for Civ Pro purposes, anyway).

Posted by: Jessie Hill | Nov 13, 2007 1:11:19 PM

I'd be concerned about using the autoadmit complaint in a context where the procedure rather than the substance was the focus. I think it would be really easy for it to be perceived as trivializing the serious substantive allegations that are likely to be emotionally loaded for many of the students involved as nothing more than a hook for the procedural aspects. I'm divided because I do think it's good to be reminded that procedural issues are intertwined with important substantive ones, but in this case I think it's tricky because the emotional impact is likely to be so unbalanced towards the female students who are already put in the position of being forced to wonder which of their male colleagues are saying these things about them on-line and whether they're going to be the next target. I think it puts them in the difficult position of having to distance themselves from and intellectualize something they're very close to, something which doesn't apply to the male students in the class.

(And any emotionally loaded case you read will likely have that effect for a student or two . . . but in this case it's a large group and the effects are predictable).

Posted by: KatieM | Nov 13, 2007 11:18:07 AM

Belle:

My question was strictly about teaching this for the procedural and jurisdictional issues in Civ Pro. Interestingly enough, given your response, I actually would have no (or at least fewer) qualms about teaching this in my First Amendment course, where the essence of the subject matter demands that students grapple with offensive material--racist, sexist, politically offensive, etc. My concern is whether the offensive nature will distract from students ability to see and deal with the procedural/jurisdictional problems. Or whether it is so offensive that students will "shut down" in response.

Posted by: Howard Wasserman | Nov 13, 2007 9:59:08 AM

In this case I think moderation by the professor is key to ensuring a productive, civil discussion. This may be hard to avoid when teaching the case in Torts or Gender Discrimination and the Law, but I am sure even in those classes it could be sensitively handled.

It would be helpful to know from which perspective you want to teach this material. Your points about the civil procedure issues are interesting and illustrative, and don't touch on the merits of the claims asserted--IIED, would a "reasonable" woman feel threatened, etc. Even if you do get into such a discussion, I think that the professor must assert his or her prerogative to moderate the discussion and make sure it doesn't devolve into ad hominems and getting "too personal." When students start asking each other accusatorily "how would YOU feelif this happened to you" or "how can YOU possibly think this a credible threat"--then the discussion denatures, and it becomes less productive and useful to use this case as a real world example.

In such a case, the professor should step in and say "let's bring this discussion back to the issues at hand: jurisdiction, the reasonableness of the plaintiff in _this_ case, whether site administrators may be held legally responsible for the statements made on their site, etc.

However, this is not to say that personal experiences may not be discussed, if the professor thinks that they would serve some pedagogical goal of reinforcing the "real world" aspect of the case. So often in law school, cases are _too_ abstracted away from lived experience, as if to discuss affirmative action or racism is something _so_ far past in history. In fact, that's the usefulness of contemporary real-world examples, they contextualize the law in important ways and remind students that controversies are alive and real, and that lawyers do not only engage in esoteric, low-stakes arguments. I imagine a lot of crim profs have to deal with this when discussion rape law, as do employment discrimiantion profs when discussing sexual harassment law in any way other than straight blackletter law.

Policy discussions are where most classroom discussions have the most potential to derail and grow ugly. Again, this is the role and purpose of the professor: stipulate at the beginning that as a class, we are going to work through a controversial, divisive case contains offensive, sensitive material. This is to be a "safe space" for discussion, but not an unopinionated one: norms of collegiality will be enforced, and those who feel truly uncomfortable with the discussion are not required to participate actively by contributing to the discussion, and may if they feel truly uncomfortable with the discussion of sexual violence excuse themselves. This I think is justified, because I do not think students have the right to excuse themselves from learning "offensive" material just because of moral objections (e.g. those who decline to attend class on days that Lawrence v. Texas or Roe v. Wade are taught, and it goes the other way too), but they may keep silent, and may excuse themselves if the discussion would cause them to relive trauma. However, my justification for this is predicated on the professor moderating the discussion to keep things civil and avoid inflammatory discussions that might cause pain to those who have suffered from sexual harassment or threats of sexual violence. If this is unavoidable, then that student should be excused from participation without further comment to the class.

I think this case could be taught in ways that challenge students to think of the various procedural, substantive, and normative issues in useful and critical ways, and if the conversation is moderated effectively, this could be very productive. Students will be required to confront their conceptions of free speech, privacy, and anonymity. Students will not have to admit to their own bifurcation of public, named conduct and private, pseudonymous online conduct, but they will nevertheless think about such issues. Students will have to make distinctions between moral arguments and legal arguments; thus while they are not required to approve of certain conduct/statements/outcomes, they may be reasonably required to consider whether such moral opprobrium may be enforced by the law, or whether such conduct rises to the level of the legal test for defamation/IIED/etc., and whether this outcome is legally justified.

Posted by: Belle Lettre | Nov 12, 2007 5:27:09 PM

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