"Cyber-bullying" Redux--The AALS Panel

I have posted in this space once before regarding the recent phenomenon of "cyber-bullying."  I have come to believe since then that tort-based law provides redress for most of what we generally term "cyber-bullying," and that much of what we use this term to describe is (and should be) outside the reach of school regulation. 

At the recently-concluded AALS conference, however, a panel of very distinguished scholars (including Lyrissa Lidsky, my torts professor from UF Law, whose name was inadvertently left off the official program) discussed the question whether students who engage in cyber-bullying, cyber-slamming (defamation), and/or cyber-stalking while in law school should be prohibited from sitting for the bar exam, due to an inherent lack of "character and fitness for the profession."  (No lawyer jokes in the comments, please--that's low-hanging fruit).  The panel also considered how, if at all, nefarious social networking conduct should be addressed, in light of First Amendment concerns. 

I found the discussion very illuminating.  Interestingly, the discussion turned very quickly from considering speech with an independent tortious or criminal character (threats, defamation, false light invasion of privacy, and stalking) to speech that does not violate a law, but is nevertheless racist, sexist, or incredibly boorish (the boorish example was one of a Florida lawyer suspended from practice for calling a presiding judge a "witch," if I remember correctly).  The former category (torts and crimes) seemed to garner agreement among the panelists that the bar should consider it as (non-dispositive) evidence of bad character and/or fitness, if it is properly and certainly established as the speech of the specific bar applicant.  I am not in favor of categorical rules that have the effect of limiting speech (even someone who shouts "fire" in a crowded theater could be making an honest mistake, after all).  Thus, I was pleased to see that none of the panelists appeared to favor automatic exclusion from the bar for any conduct that we decide to put under the nebulous label, "cyber-bullying." 

The latter category, however, garnered fewer conclusions and was left open at the end of the discussion.  Difficult questions were raised: Can a racist or sexist (as demonstrated by virulent online comments) nevertheless be a good lawyer?  Is "judgment" (defined as judging what one chooses to say publicly) part of "character and fitness"?    Can we trust character-and-fitness committees with such determinations?  Do character-and-fitness concerns trump First Amendment rights (including the right to be a racist, a sexist, or a boor)?  I do not have ready answers to these questions, but they illustrate how delicate the non-exam portion of admission to the bar can be, and how introducing a vague concept like "cyber-bullying" into the mix could prove much more difficult than it might seem. 

Comments

[Justin B.]

A few thoughts I guess come to mind:

1. I would be very disappointed in law students that engage in this kind of behavior. All of us that went through it know there were always a couple students that stood out as a little odd ... but it is going to be the odd characters in society that walk through your office door, so they better find a way to treat these folks kindly. And, if it is happening because of the competition between students, then someone needs to clue them into the fact that it is always always the humble students that rise the furthest in the profession. Just ridiculously unacceptable behavior.

2. But, to think Character and Fitness committees need to be involved in non-criminal behavior like this is a little crazy as well. That would just be a waste of time because there is no way (absent criminal or other bad behavior) bullying is going to keep someone out of the bar. They can try it and it may go to the State Supreme Court, but I just don't see them winning. It would be mostly just for show ... so, just not worth it.

3. However, if you find yourself in a position like this, do what schools did. Adopt generally meaningless and toothless provisions that you hope sends a message, but that doesn't actually do anything. Again, that's sort of a waste and creates extra and unnecessary paperwork and time, but if you feel like you absolutely have to do something, that seems like as good a strategy as any. The drawback being some folks will actually try to use those provisions and thus, lawsuits ensue.

4. But, whatever is adopted needs to be broader than "cyber-bullying." I am not sure a character and fitness committee would understand the cyber in cyber-bullying ... which is sort of a big problem. I always think fundamentally folks screaming about the dangers of "cyber-bullying" are more afraid of the "cyber" than they are of the "bullying." First, no one calls it "cyber" anymore - so if someone is calling this activity cyber, that clues me into that they really don't know squat about the Net. Second, they complain about the anonymity of the Net or "cyber-space." It's not that anonymous. Most students would know where it is coming from. Third, they complain about the "world-wide" publication of the bullying. Maybe, but no one is reading it because no one cares. Anyway, bottom-line is that there is a public scare over the "cyber" world, but little actual knowledge of student's activities on the Net. Thus, I hope these committees don't let their own ignorance of technology cause them to overreact in policy.

5. Thus, why not just call it bullying? Once you frame it as just bullying, then I think one is more reluctant to go to the step of enacting meaningless provisions because we have had bullying since we have had law schools. We have self-regulated, to an extent, and can continue without additional disciplinary provisions. It can certainly be a focus of professors and can certainly be addressed with students, but to add in additional provisions in the Character and Fitness committee is asking for trouble.