December 30, 2014

Another Test of Free Expression at Brandeis

English: Professor Alan Dershowitz of Harvard ...
Professor Alan Dershowitz of Harvard Law School. (Photo credit: Wikipedia)
Individuals who believe that their public speech (e.g., use of social media) should not be subject to disagreement or criticism have many options for attempting to silence their critics. One of the most popular these days is to claim "harassment." Regular readers may remember the outrage that erupted last spring when some prominent atheist bloggers begin to claim that sharing their public tweets via Storify was a form of harassment.

I mention this because the question of whether sharing someone's public social media communication entails harassment (or cyberaggression, stalking, or bullying) is in the news again following a recent incident at Brandeis University. Writing in Newsmax (yes, I am aware that they have a right-leaning bias), Prof. Alan Dershowitz (Professor Emeritus, Harvard Law) brings us the story of Brandeis junior, Khadijah Lynch, who recently tweeted her frustration following the murder of two New York City police officers. According to Prof. Dershowitz, another student, Daniel Mael posted Ms. Lynch's public tweets. Her response was to threaten to sue him for "slander."

And this brings us to the crux of the matter. Does sharing someone's public social media communication constitute some form of defamation (e.g., slander, libel)? Prof. Dershowitz writes:
Republishing someone’s published words could not possibly constitute slander, libel, or any other form of defamation, because you can’t be slandered by your own words.
Interesting. He goes on to explain that just because having one's public speech shared is not a form of defamation does not mean that it is necessarily consequence-free for the person whose words are being shared.
You can, of course, be embarrassed, condemned, ostracized or "unfriended" by your own words, as Donald Sterling, the former of the L.A .Clippers, was. But Sterling's bigoted words were never intended to be public, whereas Lynch’s tweets were publicly circulated.
In other words, having one's public speech shared can be deeply embarrassing and may lead to unpleasant social consequences (e.g., others concluding that one is a bigot). Of course, the time to consider this is probably the point at which one issues one's public comments and not later when someone else decides to share them.

I certainly don't agree with everything Prof. Dershowitz says in this article, including much of his characterization of Ms. Lynch. For example, it seems like he is trying to paint her as a bigot and a legitimate threat rather than as someone who demonstrated poor judgment in her choice of words when she was upset.
Moreover, other students have the right to know that one of their classmates is advocating intifada against America and is considering getting a gun. They are entitled to have this information in order to judge the character of those with whom they associate.
Maybe, but this does not strike me as being the case here. Given the context, I think it is a stretch to construe Ms. Lynch's words in such a way that she becomes a serious threat to the other students. I'd be inclined to conclude that she was understandably upset and had a lapse in judgment by venting in this particular manner.

The part I agree with and the reason I found this story to be relevant concerns Mr. Mael's behavior.
Mael had the right — and was right — to expose Lynch’s public words for assessment and criticism.
Right. He did not dox or out Ms. Lynch; he shared her public tweets. That is, he communicated her words - words that were already publicly available and already associated with her - to what may have been a wider audience. Unless I am missing something obvious here, which is always possible, I don't see anything wrong with this.
Now hard left students at Brandeis are calling for Mael’s head – or at least his expulsion – for exercising his freedom of expression. He has been accused of "stalking," "cyberbullying, and "inciting racial hatred and oppression" for merely republishing what Lynch published.
This strikes me as unfortunate, and I echo Prof. Dershowitz's hope that Brandeis defends Mr. Mael's right to share the public social media communication of another student. I also hope that the morons sending death threats to Ms. Lynch are held criminally responsible for their behavior.

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