Syracuse University Thinks Satire Is Actionable Harassment

Print This Post

You may also like...

25 Responses

  1. Brendan says:

    I'm no first amendment expert or any kind of expert, but I think there's a big difference between a more senior student calling a first year student a slut and satire. While one would hope that law schools are more advanced that middle school, it sounds like the authors of the offending blog were simply acting as bullies. The victims of the bullying have complained and that has led to an investigation. I can totally understand why a first year law student would worry about reputation damaging blog posts and don't understand why the right to satire exceeds the right to avoid character assassination. One could make the argument that a professor is something of a public figure and can be satirized, but a law student is certainly not a public figure and deserves some protection. Further, you draw this employment parallel, but in any job I can think of you if you start writing a blog that says bad things about your superiors and co-workers and they find out it's you, they'll fire you.

    People generally retaliate if you're an asshole. And realistically, would a law school really want to subject its students, paying $45k/year, to some childish and mean blog? They're trying to run a business.

  2. ZK says:

    I don't know why presumably intelligent people keep going up against FIRE when they're pretty clearly in the wrong. It has to be like throwing gasoline on a fire, hoping that this time, maybe it'll just go out.

    Maybe they just have radically different worldviews or are cloistered in academia so much they don't notice the fact that people don't like censors, or that people might question them? I really don't get it.

  3. Great article. Let me make a personal pitch, as a board member, for readers to
    support FIRE's work: http://myfire.thefire.org/Page.aspx?pid=218

  4. Ken says:

    I think there’s a big difference between a more senior student calling a first year student a slut and satire.

    Brendan, there's a difference between walking around saying "Susie is a slut" and saying it in the course of a satirical piece that also says "Alan humps dogs" and "Wayne is transgendered," or whatever. They context makes it clear that the whole is satirical.

    Read the Falwell opinion linked in the post. It's perhaps the most important First Amendment decision about satire.

    While one would hope that law schools are more advanced that middle school, it sounds like the authors of the offending blog were simply acting as bullies.

    "Bullying" is this year's shark week. It's the vague label that can be applied to almost any conduct in a OMG THINK OF THE CHILDREN fashion to discourage critical thinking. To the extent "bullying" constitutes satire and criticism, it is protected by the First Amendment from state action.

    I can totally understand why a first year law student would worry about reputation damaging blog posts and don’t understand why the right to satire exceeds the right to avoid character assassination.

    First of all, there is no "right to avoid character assassination." Second, satire and hyperbole are not "character assassination" — by which I mean they are not actionable defamation, for instance. If you come here and say "Ken, your posts suggest to me that you are a Nazi who molests squirrels," I will not be able to maintain a successful defamation suit against you, because your words are clearly hyperbole. If you respond to this post by writing a story in which I drive around the country shouting "SLUT!" at first year law students and then obsessively reciting the First Amendment, I will not be able to sue you for defamation successfully, because it is clearly satire.

    One could make the argument that a professor is something of a public figure and can be satirized, but a law student is certainly not a public figure and deserves some protection.

    What is your legal authority for the proposition that the First Amendment does not protect satire if the satire is directed at a private figure?

    Further, you draw this employment parallel, but in any job I can think of you if you start writing a blog that says bad things about your superiors and co-workers and they find out it’s you, they’ll fire you.

    No doubt. But unlike private universities in general, and Syracuse in particular, most private employers do not loudly assert that they respect and will protect the free expression of their employees.

    People generally retaliate if you’re an asshole. And realistically, would a law school really want to subject its students, paying $45k/year, to some childish and mean blog? They’re trying to run a business.

    That's a perfectly apt observation. But if a university wraps itself in the cloak of free expression, but acts contrary to that cloak in order to make a buck, should we not call it out and criticize it?

  5. SPQR says:

    What about my right to live in a country that has no censorious twits, Brendan? You know … while we are inventing "rights".

  6. Brendan says:

    Obviously using the word "right" on a law blog was probably a mistake, but whatever.

    Anyway, the point I was trying to make is that I think it's perfectly reasonable for the school to act on the complaint. While I'm not going to go read through Syracuse's code of conduct, I would assume that while they strive to promote free speech, the same document probably has language speaking to students' right to be in a safe environment, etc. If a student makes a complaint about being called a slut because she feels that she's defamed or worse, threatened, is it really that bad if the school investigates? Honestly, making a competing satire blog making fun of the original satire blog is not what anyone is going to do if they feel wronged. Ok fine, they're weaklings, but I think that's a cop out position to take. Does this mean that you only want to hire people who won't take workplace hostility up their boss or HR?

    But anyway, that redacted pdf doesn't seem to have any of the objectionable stuff involving calling people sluts or making fun of some professors. So, I have a hard time figuring out the context.

    Crappy satire is one thing, but calling your fellow student a slut and expecting her to put up with it or alternatively that she needs to think up some witty come back on her own blog just sounds like misogynistic bullshit.

  7. "People like Prof. Germain" do not like your analysis. "People like Prof. Germain" think you should butt-out of stuff that isn't your business. "People like Prof. Germain" think you should remember that private institutions are allowed to resurrect the inquisition.

    "People like Prof. Germain" think you should be ashamed of yourself. Naughty, naughty.

    On a separate note: I love his comment of "You don't know me." I have the vision of him in a torn Budweiser t-shirt and tightie whities outside his trailer being interviewed by the show "Cheaters" and yelling that phrase at the cameras repeatedly.

  8. Linus says:

    Wow, first Patrick's post about McDonald's, and then this. Ken, you boys are in the zone.

    With respect to Brendan, I don't think it's reasonable for the university to act on the complaints. "Mommy, he called me some names!" That's all this is. Yes, "slut" is a particularly nasty and hurtful name. So what? Does the university appoint a prosecutor every time two students have a fight that ends with him saying "Bitch" and her saying "Asshole"? I guess the inquisitors have consoled themselves by saying that they're worried about this girl's "reputation", but Ken has explained pretty clearly the First Amendment distinctions between satire and false statements of fact. But again, this dude's not making factual statements, is he? Isn't he just being an asshole?

    Also, let me make sure I'm understanding this—someone felt they were in physical danger because someone said mean things on the internet? They thought the satirist would harm them, or that the posts would incite violence them? Maybe I just missed the logical explanation.

    The other explanation I must have missed is how exactly someone can "harass" someone else by writing things on their own blog. We've dumbed down and expanded that word into meaninglessness. "Dad, Billy is harassing me!" "Oh, Brenda? What is he doing?" "He is saying mean things to his friends about me when I'm not there." That certainly is asshattery, but it ain't "harassment".

    Crappy satire is one thing, but calling your fellow student a slut and expecting her to put up with it or alternatively that she needs to think up some witty come back on her own blog just sounds like misogynistic bullshit.

    If the choices are to expect her (1) to put up with it, (2) defend herself, or (3) run crying to Big Daddy to stop the mean, mean man, which of those three choices is "misogynistic"? Which one assumes women cannot handle insults without falling into hysterics?

  9. nrasmuss says:

    I'm curious: is everyone here truly irked that Syracuse has chosen to "investigate" this incident, or is this a misguided but duly-earned reaction to the manner in which the University has chosen to pursue it, which is transparently clumsy, heavy-handed – and particularly as evidenced by the claims of the "independence" of Professor Germain and his proposed "gag order," quintessentially ass-hatted?

    Having read through the documentation and comments, I'm quite certain of the idiocy of this "investigation" as conducted, but not so certain that the conduct within is as easily defensible as those here seem to assert. I see a lot of bandying-about of 'satire' as a defense, and the Falwell precedent – but I don't see much analysis of the facts of the case (nor am I sure that we have them).

    The First Amendment affirmative defenses all appear to turn on either the ability of the audience to discern the inherent hyperbole contained within the allegedly offending statements, or the degree to which the target has knowingly/willingly placed themselves in a position to be commented upon. Hence, in libel, the public figure doctrine; in parody, as a general rule, the more recognizable the target, the more likely it is that the parody succeeds of itself, and as an asserted defense – and a failed parody may be a satire, which in some cases – TMs, for instance – is not a protected defense. And finally, even satire – certainly in Falwell – should turn on the 'publicity' of the target: a drawing of Falwell, "the moral scold," in flagrante delicto with his mother is satire. I would suggest that if you published such a drawing of me (a relative 'nobody,' I'm willing to assert) you might not fare so well in court.

    Context appears to matter, and I don't see much in the way of context here regarding the individual who complained/was "targeted," or Mr. Audaer. It's easy to claim that "it was a joke," but despite the generally sarcastic tone of the blog in general, and the letter-box disclaimer that "this website is a joke," is this dispositive? "Sally is a whore." Satire? Who's hearing this? What do they know about "Sally"? Is there an underlying commentary that the listeners are aware of, or that "Sally" herself has entered? What if "Sally" is an innocent-enough 1L who has repeatedly and disdainfully rebuffed the author's requests for a date?

    My long-winded point being that while I'm generally no fan of the rather nebulous terms under which Mr. Audaer is being pursued, there would certainly seem to be contextual situations in which such an examination would seem entirely reasonable. So I return to my initial question: is the issue here the examination, or the idiotic way in which it has been pursued?

    *Also, just what sort of favor does Syracuse think that it is doing the current students with this ham-handed debacle?*

  10. Patrick says:

    nrasmuss.

    **misguided but duly-earned reaction to the manner in which the University has chosen to pursue it, which is transparently clumsy, heavy-handed – and particularly as evidenced by the claims of the “independence” of Professor Germain and his proposed “gag order,” quintessentially ass-hatted?**

    **I’m quite certain of the idiocy of this “investigation” as conducted**

    ** I’m generally no fan of the rather nebulous terms under which Mr. Audaer is being pursued**

    **is the issue here the examination, or the idiotic way in which it has been pursued?**

    **this ham-handed debacle**

    You seem rather irked at the university yourself.

    Without speaking for the author of this post, I will note that in this era, where the notion of "in loco parentis" has been abandoned for forty years, the idea of a university appointing itself a libel court, and retaining an "independent prosecutor," is so ridiculous as to merit a satire of its own.

    If Sally is not a whore, and Sally is not a public figure, the accusation that she prostitutes herself is libelous per se, and no proof of special damages is required. Surely Sally should not be subjected to this, but Sally is a 1L, and probably in a better position than most people to vindicate her reputation.

    It isn't the place of Syracuse to usurp the judicial power.

  11. PLW says:

    If I organized a club and someone joined the club and started insulting fellow members publicly and in an obviously mean-spirited way (even if that mean-spiritedness was couched in satire), I would kick his sorry ass out of my club. I might give him a second chance, and ask him to quit publicizing his nasty insults while we were deciding whether or not to keep him. If he nonetheless continued to publicize them, I would probably say "screw the second chance," and give him the old heave-ho immediately.

  12. Linus says:

    PLW, would your club be expressly dedicated to freedom of expression? Would you kick people out for private assholery, or only the public kind? Would it serve brownies?

  13. BC says:

    Assume that when you organized the club you went to considerable lengths to garb yourself in respect for members' expressive freedoms, PLW. Same result?

  14. John David Galt says:

    I agree that Syracuse has the right to kick out a student for unworthy reasons such as this — if its contractual relationship with the student allows it.

    Then again, even with a contract allowing censorship, there may be a point where the university's treatment of the student crosses the line of bad faith and so is actionable. And if the university's expulsion of the student results in him having difficulty finding employment or another university, he may also very well have a good defamation case.

    But I hope that none of these cases ever have to be filed: that is, I hope that when the university administrators see a few articles like this one, and realize that they've made fools of themselves for all to see, they'll decide to make good for the harm they've done.

  15. JC says:

    Saw the headline and immediately thought of the great line from St Thomas More. "The devil, the proud spirit, cannot endure to be mocked".
    Heh

  16. Dello says:

    While I won't pretend to know anything about the law, it seems to me that the university is going way overboard with this.

    That said, I would probably be quicker to hire the transvestite or the slut than I would this guy, just to avoid having him do the same thing at my company.

    Seems to me that he's impeaching his OWN reputation more than anyone else's.

  17. Chris says:

    " If you respond to this post by writing a story in which I drive around the country shouting “SLUT!” at first year law students and then obsessively reciting the First Amendment, I will not be able to sue you for defamation successfully, because it is clearly satire."

    Damn you, lack of free time!

  18. Dan Weber says:

    The more I've been thinking, the more I've been resisting the pile-on of the 1L.

    I can certainly imagine a point in my life where I wouldn't have responded with as much wisdom as I would today to a douchebag colleague. Maybe an especially "keener" student could have gotten into the first year of law school without being fully an adult, and think that telling mom is the right response.

    Ironically for Syracuse, this would make the senior law student's defense of "satire" even more obvious, since no one would believe the young keener was a slut.

    And it isn't meant to be a defense of Syracuse, which could've just done a "knock it off" to the senior law student and gotten fine results. It wouldn't have given the petty dictators a chance to exercise their muscles, though.

    FD: I haven't read all of FIRE's archives.

  19. Wind Rider says:

    I think this makes the case as to why Germain is in academia, instead of private practice. Unless he's engaging in an academic exercise of how not to effectively handle something. In that case, I'd have to applaud him for risking his reputation for the benefit of his students. Somehow, I don't think I'll be doing that.

  20. mojo says:

    A college "disciplinary council" issuing gag orders? Or "orders" on any damn thing, for that matter? Who do they think they be?

    It is to laugh.

  21. Ken says:

    Please note today's update to this post.

  22. I am Audaer's attorney. What should cause the greatest ire at this entire issue is that while the University has a policy defining the term "harassment" (a definition, btw, which does not comport to the facts of this case), the College of Law has no such definition. According to the prosecutor, though he acknowledges there is no definition of the term harassment, he claims that the terms thereof can be discerned because the word is a common word subject to the fresh bread test … "I know it when I see it". This is a fundamental due process violation as how can anybody know the parameters of acceptable behavior and be able to conform therewith.

    The gag order is an issue that is completely stunning. Notwithstanding the contents of the allegations, there is an implied assumption that coming forward as a complainant or a witness automatically subjects a person to attack if their names are disclosed. This comes from the "pulling it out of my ass" school of rhetoric. I can only dream of having the ability to foresee the future as does my opponent, the prosecutor.

    Lastly and most worthy of consideration is that if law students do not learn early on and quickly to grow skin as thick as concrete, then their future is already in tatters. My business has degenerated to a world where the lawyer is constantly attacked, and not in satire, but in motion practice, open court, and in day to day contact. The game of "kill the lawyer" is constantly the tactic of BigLaw and if you are not tough enough to endure the constant assault upon your good name and to rise above it to represent your client, then go to medical school.

    Audaer is going to come through this the victor. The only question remaining at this juncture is how much more the University and College of Law is going to subject itself to public shame and embarassment as it proceeds down this slippery slope.

  1. December 20, 2010

    [...] struggles to distinguish satire from [...]

  2. December 22, 2010

    [...] has a bad-ass post on an "incident" at Syracuse University School of Law. The short version is this: [...]

  3. December 27, 2010

    [...] Syracuse University College of Law (SUCOL), with Ken of Popehat leading the charge. On Monday, he eviscerated SUCOL and Gregory Germain (whom he referred to as a "censorious thug") for not throwing [...]