Wednesday, July 18, 2018

The Ethics Of Blogging

A July 6 decision from the Wisconsin Supreme Court reversing Marquette University's decision to terminate  a tenured faculty member has generated diverse commentary from applause (The National Review) to dismay  (The Chronicle of Higher Education)

 Justice Ann Walsh Bradley in dissent touches on a point that, as a blogger with some audience, I consider before clicking on the "publish" button.

 Missing from its opinion are key facts that informed [Professor] McAdams' action. After publishing the blog post, McAdams actively promoted it to local and national media outlets. The record reflects that McAdams did so by "distributing copies of the audio recording to interested journalists and bloggers, posting follow-up stories linking back to the Nov. 9 post, creating a category of posts linked to [junior colleague] Abbate by name, and arranging to appear on radio and television interviews about the story and subsequent controversy." McAdams wrote that he was aware that "'[w]hen one does something that gets national publicity, some jerks are going to say nasty things."

That prophecy was fulfilled here. Within hours of the blog post, Abbate started receiving negative emails, which only multiplied in the following weeks. She feared for her safety at Marquette and within weeks withdrew her dissertation proposal and transferred to another university despite adverse consequences to her academic progress...

In his letter to McAdams informing him of the disciplinary action taken, President Lovell is clear that it was not the views expressed in the blog post that led to discipline: "I think it is important to state that the sanctions being brought against you are solely based on your ACTIONS as a tenured faculty member at Marquette University, and have nothing to do with the political or ideological views expressed in your blog" (capitalization in original). President Lovell's letter thus makes clear that McAdams was disciplined for his actions, and not the blog post's viewpoint. Thus, the question is not "whether [the blog post's] contents remove the doctrine's protections." Id., ¶64. It is whether McAdams' actions are worthy of protection.

The majority recognizes that in engaging in extramural activities, a professor "occupies a 'special position in the civil community,' one that comes with 'special obligations.'" Majority op., ¶65. Included in these "special obligations" is the duty to "exercise appropriate restraint." Id.

McAdams did not exercise any restraint at all, let alone appropriate restraint. I agree with the FHC that "where substantial harm is foreseeable, easily avoidable, and not justifiable, it violates a professor's obligations to fellow members of the Marquette community to proceed anyway, heedless of the consequences."

McAdams' actions were well summarized in President Lovell's discipline letter, where he approvingly quoted from the FHC report: "[McAdams'] use of a surreptitious recording, along with Ms. Abbate's name and contact information, to hold Ms. Abbate up for public contempt on his blog, recklessly exposed her to the foreseeable harm that she suffered due to Dr. McAdams's actions."

The majority unpersuasively asserts that the vile commentary immediately following the blog post "does not mean the blog post instigated or invited the vileness." Majority op., ¶76. The only way the majority can reach this conclusion is by ignoring significant facts in the record.

First, McAdams knew the effect his blog post would have on Abbate. Among the FHC's factual findings that go unmentioned by the majority is that Dr. McAdams wrote in a blog post that "[w]hen one does something that gets national publicity, some jerks are going to say nasty things," indicating he was well aware of this modern media phenomenon. Indeed, that is exactly what happened here.

Shortly after the post's publication, Abbate began to receive hateful emails. The negative communications multiplied over the next several days, particularly after the incident received coverage on Fox News. She was forced to shut down her email account and remove her email address from Marquette's graduate student website.

Several of the communications Abbate received expressed violent and profane thoughts. She feared for her physical safety and experienced significant detrimental effects on her mental and physical health. A public safety officer was even posted outside Abbate's classes for two weeks.

Abbate ultimately withdrew from her dissertation proposal defense and transferred to another university. This transfer requires that she repeat three semesters of course work.

Footnote

The record reflects that at the time of the events at issue in this case, Abbate was a graduate student in the philosophy department at Marquette. In addition to working on her dissertation, in the fall of 2014 Abbate taught two sections of Theory of Ethics, a philosophy class for undergraduates. I observe that throughout its opinion, the majority cherry-picks facts when it refers to Abbate as an "instructor" and not a "student." See, e.g., majority op., ¶1. In doing so, it colors the facts, disregarding the realities of the power dynamics at play here between a tenured professor and a graduate student.

My blogger reaction:

Much of what I publish likely brings unwanted attention to a person subject to public bar discipline, disqualification, judicial misconduct allegations and the like. 

My overarching goal has been to shed some light on areas - particularly attorney discipline - that had historically been beyond public reach and that reflect on the ability of the bar and bench to self-regulate. 

But I temper that with some sense that with a soapbox comes a level of responsibility. I often decline to post matters where I think that the educative value is outweighed by the embarrassment or harm it can cause to the individual to the extent that I am able to discern such harm. 

If the harm is brought to my attention, I have deleted posts on request where such action appears appropriate. 

I've also learned that, the more prurient or bizarre the conduct, the greater the traffic. 

Whether or not the Wisconsin court is correct on the law, the use of a blog to intimidate and harass a junior colleague is the antithesis of my own views concerning responsible blogging. (Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2018/07/a-july-6-decision-from-the-wisconsin-supreme-court-reversing-marquette-university-decision-sanctioning-a-tenured-faculty-memb.html

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