Saturday, April 21, 2007
Bar Admissions Character Screening and the New AutoAdmit Controversy: Please, Brad Wendel, Tell Me The Powerball Numbers Too
Posted by Alan Childress
Already Brad Wendel's prescient commentaries on LegalEthicsForum here and here, discussing bar admissions denials purportedly based on predicting future behavior (rather than focusing on the speech as such) are in the early stages of coming to pass. (Our own analysis, distinguishing the Playboy TV "controversy," is here.) Brad's point was made originally as to various anonymous posters to the AutoAdmit discussion board (a/k/a xoxohth). These posters are not as anonymous as they think, and their racist and sexist comments may well become the grounds for denial of bar admissions for otherwise qualified applicants -- not because of their expressed views and opinions, but on the reasoning that this is all evidence of future inability to live up to the norms of the profession.
This future-behavior mantra (justified or not over First Amendment arguments) has already started -- not in the context of racist and sexist speech, but in regards to an awful and offensive post on AutoAdmit about the Virginia Tech murders which was regarded as copycat-threatening to UC Hastings College of the Law (left) and closed the school down for a while. Turns out that they have identified the anonymous poster as a student at nearby UC Berkeley Boalt Hall School of Law. The dean at Boalt sent a supportive and concerned letter to the community at Hastings, and the Hastings dean called off the highest threat-watch once authorities determined that the threat was either a hoax or had passed. One account of the story is on WSJ Law Blog here.
In further detailing these events, the Brian Leiter blog states without qualifying it, "A Hastings faculty member tells me that the FBI has identified a Boalt student as responsible for the threat; his legal career is presumably finished." Even the discussion board's owner used an analogy that provides the no-protection cue: "Today someone yelled 'Fire!' on AutoAdmit, and some people took his word for it." That owner adds that the student came forward himself and then the owner put the FBI in touch with him.
A commenter at WSJ Law Blog adds: "The Boalt student who made the fake threat might as well quit now, because he or she is never going to pass the California bar moral character determination after graduation with this on their record." Another cues: "This was exactly like shouting fire in a crowded theater; it’s outside the bounds of permissible conduct under any applicable legal standard." (Oddly, however, almost all of the 51 comments are devoted to the problem of getting hired to a big law firm job from a third or fourth tier school; even this incident devolves into USN&WR rankings talk.)
Although this kind of case will much more easily be cast in the prediction-of-harm mold (and has fewer traditional free speech equities given the Fire! cue), it will not be a big leap for the bar examiners to use their traditional reasoning on other forms of blog postings -- especially the rest of the infamous AutoAdmit comments section -- that get exposed before or during the licensing process. And my own prediction is that this particular threat instance and its serious consequences will make examiners look more generally and intensely at AutoAdmit and its other comments.
Update: A UC Hastings student here makes a thoughtful tie-back to Columbine and the Unabomber manifesto.