April 22, 2007
Anonymity, Chatboards, and the Imus Defense
Posted by Jeff Lipshaw
Both of my blogging partners here at LPB have offered up views on the Boalt-Hastings situation. I don't feel qualified to comment on the likelihood vel non of an applicant's passing character and fitness muster. I do, on the other hand, have a moderately strong feeling about the anonymous trash-talking culture on chat boards generally, particularly in light of the comment from one reader (who, I should note, had the courage to sign his name to his comment).
There is an equivalent to Xoxo in the corporate world, and it is every public company's Yahoo! Message Board. The Yahoo! message boards were, I assume, originally meant to be places where investors or traders could talk about the stock. They quickly morphed into virtual water coolers or, worse, bathroom stall walls, where you might find the occasional bit of investment talk (more likely, ignorant day trading garbage when it was anything), but more likely some combination of current disgruntled employees and former disgruntled employees, with a strong flavor of juvenile (almost always male) locker room idiocy. It was no-holds-barred, and I used to advise our most senior management that it pretty much came with the territory. But every so often you would get just awful misogynistic or homophobic or anti-whatever directed at people within the organization whose pay grades just couldn't possibly include taking that kind of abuse.
And the sine qua non, in my view, was the anonymity. Moreover, if anybody objected, on line or otherwise, the response from knuckleheads on the message board (anonymous, of course) would be that nothing could be defamatory, because, as the commenter observed below for Xoxo, nobody would take seriously anything written on a message board. That, of course, is something like a cross between puffery and the Imus defense - first, it can't be serious because nobody would ever read that forum looking for the truth and, second, we are equal opportunity "phobes" and so nothing we say really matters notwithstanding its impact on others. Moreover, there really isn't a way to create deterrence because no rational senior executive is going to waste the shareholders' money pursuing an anonymous knucklehead (and simply stirring the publicity pot to boot), and no abused employee wants to endure the continued pain. (It's interesting as well to read the message board squawking when the rumors start that the company is tracing the postings back to company computers - as though it were Big Brother violating an inalienable right to "express oneself.")
Advice to law students: anonymity is a neat way to avoid accountability. But as a lawyer (and a law student), you are accountable just about 24/7. It goes with the privilege.
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