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.