Syracuse University Law Student Charged with Harassment for Satirical Website

At the Syracuse University College of Law (SUCOL), student Len Audaer is being investigated—by both the law school and Syracuse University's judicial affairs office—for allegedly being one of the writers of a satirical blog called SUCOLitis, which lampoons the people and affairs of the law school.

According to student paper The Daily Orange in an article published yesterday:

SUCOLitis, a WordPress blog, began publishing online at the beginning of October. A group of second- and third-year law students write on the website with the goal of entertaining those in SU's College of Law, according to the blog. But some officials and students at the law school are calling for the site to be removed and for legal action to be taken against the author.

SUCOLitis, whose authors are anonymous, was popular and widely read—with more than 9,000 hits as of the Daily Orange article's publication and close to 13,000 by the end of yesterday, when the blog was taken down. While the names of some SUCOL students and faculty members do appear in some of the SUCOLitis posts, the blog's disclaimer makes clear that "SUCOLitis is a satirical publication and not a news blog. No actual news stories appear on the site. The views and opinions purportedly expressed should not be attributed to any persons, living or dead, including those with whom they share names and other descriptive details." The content of the blog—with posts titled such as "Class of 2013 Named Most Attractive in History" and "Senate President Elected SU's Sexiest Semite," among others—makes the site's satirical aspirations blazingly obvious.

Nonetheless, the Daily Orange reports:

Now the College of Law alleges Audaer is the author of the blog [...] and what is written on it is harassment. Audaer said the College of Law said SU's Office of Judicial Affairs would also likely start an investigation.

Audaer said he is the only student being investigated but would not be surprised if he was asked to name conspirators. He said he has been told computer evidence will be used [...]

Although he does not think the case could survive in civil court, Audaer said he is disturbed by the situation. Audaer is only allowed to have a lawyer with him during the College of Law's hearing and, should the issue escalate, he could potentially be expelled and deported back to England, because he is in the United States on a student visa that requires him to be a full-time student.

Potentially, then, the consequences for Audaer are severe. Unfortunately for him, the SUCOL faculty member investigating his case, Gregory Germain, takes a grim view of the site and whether the speech on it is protected:

He said the situation is not normal and described the website as "designed to be offensive."

"Is it normal for blogs to be put up that ridicule certain students' character?" Germain said.

[...]

This is not an issue of free speech, Germain said, because the site is libelous and there are limitations to individual rights.

Are FIRE and Germain reading the same site? The one with a blog post that cited burrito chain Chipotle's role in providing post-graduate employment figures for the law school, and with a post that declared a beer bong named Pump Kim the President of SUCOL's 2L class?

Germain cites a formal complaint filed by a SUCOL student offended, presumably, by the manner in which his or her name was featured on SUCOLitis. Of course, the freedom to be offended is not in doubt. But then again, the Reverend Jerry Falwell was offended—deeply offended!—by a satirical ad in Hustler magazine that suggested he had lost his virginity to his own mother, and the Supreme Court ruled in favor of the magazine's free speech rights. Surely we're working with some pretty strong precedent in favor of humorists, yes? Nonetheless, Germain has deemed the content of SUCOLitis to be libelous—a tall charge, and not one a law professor would bandy about so wildly.

"'My right to swing my arm ends where your nose begins,' is the old saying," Germain says for the article. This would seem to discard another old saying—that sticks and stones will break my bones, but words will never hurt me. FIRE's Adam Kissel had ample comment for the Daily Orange:

[W]ithout proof, there is no basis for the investigation, said Adam Kissel, vice president for programs at the Foundation for Individual Rights in Education. He said offending someone is not enough to prove the website had caused harm.

"Show me the bloody nose," Kissel said in response to Germain's proverb.

The abuse of sexual harassment claims is a widespread problem, Kissel said. He said many schools have sexual harassment policies that are unconstitutional or violate the institution's own policies on free expression.

He said just because someone is offended by a sexual joke, it does not necessarily qualify as sexual harassment.

"Even if a drawing on a white board is offensive or in bad taste, it's very far from harassment," Kissel said.

At least some in the Syracuse community are amenable to this point of view. Take, for example, Professor David Rubin:

The law school should lighten up, said David Rubin, professor and dean emeritus of the S.I. Newhouse School of Public Communications. If students are not being harmed, the law school does not have the right to become involved.

"You cannot have libel without a false statement of fact," Rubin said.

[...]

If the College of Law wishes to make a stand about the website, Rubin suggested it use speech and create its own blog aimed at whoever is authoring the site.

Also on the side of common sense is the Daily Orange's editorial board, which notes the obviously satirical nature of the blog and is concerned that Syracuse's investigation appears to "disregard" the student's free speech rights. (Syracuse, a private university, has voluntarily bound itself to protecting students' free speech in its Student Handbook.) The editorial also notes that more constructive ways could be found to address the controversy surrounding SUCOLitis and that "probing an investigation and calling for the blog to be removed is not the way to handle the incident."

For example, as part of National Freedom of Speech Week, the Tully Center for Free Speech and the SUCOL chapter of the American Constitution Society hosted a debate on "Anonymous Free Speech and the Internet at a Private University." Unsurprisingly, SUCOLitis took center stage at the debate. While Tully Center director Roy Gutterman and assistant professor of law and LGBT studies Tucker Culbertson spoke for and against SUCOLitis' rights, respectively (following their debate assignments), both agreed that punishment of the student or students behind the blog would be unproductive and that better ways to engage the issue existed at Syracuse. SUCOL student Chris Lattuca's favored remedy (again following his debate assignment), however, was far more chilling, and I fear he speaks for more than just the devil's advocate:

"If Syracuse University decides to find a way to punish the students who created the SUCOLitis blog, they have every right to do so, and they're not going to be bound by the U.S. Constitution," Lattuca said.

SUCOLitis is just another form of bullying, Lattuca said. He said a post on the blog about the current first-year law class being the best-looking and "especially slutty" was offensive. He said students should not have to wait until the blog becomes more extreme and offensive to take action.

The Daily Orange article on yesterday's debate also mentions a case from several years ago in which a female student was threatened with expulsion for creating a Facebook group critical of a teaching assistant. The student is quoted in a February 8, 2006, Daily Orange article as saying she was told she would be "made an example of" by Syracuse's judicial affairs office because of her expression on Facebook.

We'll see in the next few days and weeks whether Syracuse will try to do the same to Len Audaer. FIRE will be watching.