Censoring ourselves: Legal academia and the code of silence

This is a story about one way in which a code of silence is enforced in legal academia.  That code is unwritten, informal, and unacknowledged -- and all the more powerful as a result.  Most legal academics have internalized it so completely that they would deny such a thing exists, and moreover they would do so sincerely.  This code, in other words, is an example of the most powerful and effective form of censorship, which is self-censorship.


Last Thursday, Michael Teter, a junior (that is, tenure-track but untenured) member of a middling law school’s faculty put up his second post on Prawfsblawg, a blog run by a collection of more senior legal academics. Teter has the status of a “guest poster,” which I gather means he has posting privileges on the blog for a limited time.  The post, entitled “Paul Campos is Right,” was a self-consciously overt and “light-hearted” (meaning awkward and anxiety-ridden) attempt to be acknowledged by the poster’s hierarchical superiors – the theory being that such a provocative title was sure to elicit a response from at least one of them.  Among other things Teter noted the first response his first guest post had elicited had been deleted as spam by Dan Markel, one of the senior professors who run the blog.

Teter’s second post inspired a quick response from Voodoo94: (preserved here)

I feel that this post is just sad. In its own way, it bolsters Campos' argument that it is nearly impossible to get most legal academics to see the human and financial toll of the law school crisis facing most recent graduates - particularly those at 3rd and 4th Tier Schools. 

Instead of taking a stand - one way or the other, right or wrong - on Professor Campos' work, the author uses the post as an obsequious ode to the "LawPrawfs" who run the blog. No opinion is even ventured about the state of legal academia or the sustainability of the current educational/financial model at schools ranked lower than the Top 50. Hell, even the candid perspective of a junior faculty member entering academia at a time of such uncertainty over the efficacy and viability of the current US News-driven business model would be helpful. After all, in a time of contraction, wouldn't the untenured be the first to go? Those of us outside the Ivory Tower, would find your thoughts on this quite illuminating. 

I do not mean to single out Professor Teter here, but isn't this emblematic of the go-along-to-get-along culture in academia - particularly among junior faculty seeking tenure? It seems that junior faculty are given a long leash to critique many subjects, but there is an unspoken rule to stay away from examining the stability of the Langdellian mothership.

My frustration extends beyond the junior faculty (who at least have the power dynamic of tenure status to explain their behavior). The uncritical examination of the status quo is also endemic to senior tenured faculty. I am especially frustrated by many of the 50, 60 and 70 somethings that comprise the remnants of the "critical legal studies" movement. If the law school "scam" (I use the term as a colloquialism, not as a statement of fact), isn't a ready-made issue for CLS examination, what is? It's got all the elements that should theoretically spur CLS inquiry. It hasn't. The silence of the CLS community also reveals that in most quarters of legal academia, it's safe to rail against many things - just not the structure of legal education itself.

Finally, I take a far less charitable view of Professor Markel's censorship than Professor Teter does. In my limited and admittedly brief time reading this blog, I find that Professor Markel's "quick draw" efforts to delete posts and close comments unsettling. I don't know why he finds differing opinions so unsettling, but he does. His recent decision to delete a benign (and on topic) comment questioning the ethics of faculty accepting free food and drink from fourth tier Drexel Law School stands out to me. Of the "regulars", he stands out as especially dismissive of any concerns raised by recent graduates and that is unfortunate. Dismissing the viewpoints of others grounded in personal experience/tragedy is unfortunate, but heavy-handed aggression towards those with different viewpoints is especially problematic. There is a special irony that this censorship occurs on a blog purportedly dedicated to "intellectual honesty." 

Dan Markel deleted this comment (which I hadn’t seen), and  I noted this in an update to a post I had published Friday morning, commenting on how there were no panels at AALS formally dedicated to discussing the employment and debt crisis, after a commenter posted this comment in a thread following an earlier post:

Thanks for bringing attention to Professor Dan Markel's censorship over at Prawfsblawg.

Yesterday, Markel deleted my post where I made several points: 1) the inane tone of Michael Teter's guest post; 2) Teter's tepid unwillingness to comment one-way-or-the-other on Professor Campos' efforts as emblematic of a risk averse professoriate; and 3)Dan Markel's unreasonable, inconsistent and hypocritical comment deletion policies.

To me, Dan Markel is a junior varsity version of Brian Leiter. Dan talks a tough game like Leiter but I think he has a very fragile self-image. He desperately attempts to silence dissent and purge those whose comments disagree with his elitist and privileged worldview (Harvard/Cambridge/Harvard Law/9th Circuit Clerk). Prawfsblawg is purportedly dedicated to "intellectual honesty", but Markel doesn't support intellectual honesty. He is the epitome of the legal 1%ers endemic to legal academia. He tries to play the imperious professor role with non-academics by attempting to silence them. Little does he realize how pathetic, shallow and mean-spirited this behavior makes him look. Earth to Dan: you mean nothing to legal practitioners or those of us in the "real world" - you are a paper tiger!

Markel recently deleted comments questioning the ethics of professors accepting free food and drinks purchased by the Fourth Tier Drexel School of Law. He then closed the thread for additional comments.

Yesterday, he deleted my comments on Professor Teter's thread.

While we need to keep the heat on Leiter, I think academic thugs like Markel deserve a little attention as well. This guy has been flying under the radar for far too long. Bullies like this need to be made radioactive. their arrogance and imperiousness speaks for itself. All means necessary must be employed.

Clowns like Markel don't realize that the firmament they stand on in legal academia erodes every day. The public isn't on their side. They have the losing hand.

Late Saturday night (that is, two and half days later) I received the following email from Dan Markel:

Paul,

greetings and happy new year.

I wanted to alert you that I recently came across some very nasty and inaccurate comments about me on your blog.http://insidethelawschoolscam.blogspot.com/2012/01/exhibit.html?showComment=1325855371740#c5145616221828013153 

I would appreciate your deleting them.

FWIW, I have a policy of not allowing Prawfs' threads to be hijacked by anonymous commenters, and sometimes that irritates folks who want to use threads to promote their agendas (in a anonymous way). Obviously you're free to run your blog as you see fit. But all the same, I'd consider it good manners on your part to not allow my name to be muddied by anonymous persons on your blog. (There were a couple comments after that seemed inappropriate too.)

Many thanks in advance. (And I'd also appreciate your keeping this request between us; I'm not sure what your general policy is on emails, etc.)

all best wishes,

danny.

 I didn’t see this email until early Sunday morning, when I sent Markel this response:

Dan,

Could you forward me copies of the comments you deleted?  If that’s not possible, what precisely was inaccurate about them (leaving aside matters of opinion)?

Paul

Markel responded to my request later that morning:

Paul, I'm surprised and disappointed you would even ask for evidence as if this was a dispute worthy of your independent adjudication.

I had hoped for a more collegial and gentlemanly response.
DM

To which I responded:

Dan,

You’re asking me to delete a comment on my blog which complains about your censorship of a comment made by the commenter on your blog. You claim the comment on my blog is inaccurate.. Unless you give me some basis for judging whether the comment is in fact inaccurate, and inaccurate in a way that’s sufficiently egregious to merit deletion, it would be irresponsible on my part to delete it, especially given that the gist of the comment on my blog is that you are trying to squelch dissent on your blog.    So again, I would ask you to explain why the comment is inaccurate (that it’s “nasty,” i.e., critical of your behavior, is in my view irrelevant, unless that criticism is inaccurate).

Paul

This elicited the following response from Markel:

Paul,

 it's not censorship of an idea. It's  deletion of an anonymous comment that was used to hijack a thread off the topic. That's why it was deleted. On my blog, if someone comments intelligently and under their own name and on a blog post that raises the issue, there is not deletion just because it's in disagreement with the post's author. (And if you were to alert me to nasty or inaccurate comments about you or others in our profession that were anonymously written, I'd happily delete them, much as I have for others.)

You can see the comment that was deleted here and I'd recommend you read the thread and the comments by me explaining my position:

http://blog.simplejustice.us/2012/01/06/when-lawprofs-troll.aspx

Moreover, I"m disappointed and surprised again that nasty language about colleagues in the profession (or anyone else for that matter) are of no significance to you. Why wouldn't you expect or demand that your commenters act in a way that would make you proud? What moral standards of kindness to the world do you hold? (I'm obviously not making a legal claim on you, but an ethical one, and this whole exchange finds me deeply puzzled by your putative ethical concern for students and their well-being, but not for your colleagues in the profession.)

DM

I’m publishing this exchange, despite Markel’s initial request that I not do so, for several reasons. First, Markel’s behavior in this matter is so extraordinary that I believe it would be a failure of professional obligation on my part not to reveal it.   Markel deleted an especially cogent, well-written and well-argued comment from his blog.  Markel of course has the legal right to delete any comments he wants to delete from the blog he manages (although it would appear he deleted this comment from the thread following another blogger’s post without consulting the author of the post), but obviously we are not talking about legal rights at the moment.  We’re talking about censorship (again, obviously not in the narrowest legal sense, as in this context Dan Markel is not a state actor – thank Tebow for small favors).   That Markel has the legal right to delete such a comment does not mean his decision to do so is defensible on broader grounds.  Indeed, the deleted comment strikes me as exactly the kind of thing law professors need to read at the moment, and deleting it from a Prawfsblawg thread seems to me an irresponsible abuse of discretion.

Second, consider Markel’s first email to me. He asks me to take what I would consider the fairly extreme step of deleting a comment from my blog (I almost never delete comments, with the exception of the occasional ongoing shouting match between commenters that’s derailing a thread), on the basis of the claim that the comment is “nasty” and “inaccurate” and muddying his otherwise good name.   At that time I had no basis for judging whether Markel’s characterization of the comment on my blog as “nasty” and “inaccurate” was itself accurate, since I hadn’t seen the comment Markel had deleted to which the comment on my blog referred.  So I asked him if he had a copy of the relevant material, and, if he did, to let me see it.  (He did, since the comment he deleted from his blog had been copied onto another blog – a fact he was aware of when I responded to him).

 

His response to this request is telling.  He is clearly taken aback -- one might even say shocked -- that he’s being asked (very nicely I might add) to produce some evidence for the assertions he is making in support of his extraordinary request that I censor a comment on my blog criticizing his censorship of dissent and criticism on his blog.  Such a request on my part is, in his view, neither “gentlemanly” nor “collegial.”  Apparently, it is part of some shared code that if someone posts a comment about a fellow legal academic on one's blog which is “nasty” or “inaccurate” in the opinion of the person being criticized, then the gentlemanly and collegial thing to do is to remove that comment, no further questions asked, if requested to do so by the legal academic at whom the criticism is directed.

The substance of such a request, apparently, is not “worthy of independent adjudication.” A colleague is being subjected to criticism by the anonymous rabble, and that, according Prof. Markel, is simply unacceptable. (Note he reveals he has deleted comments from his blog under circumstances similar to those that have led him to ask me to delete a comment from mine).

Third, when I point out – with as much gentlemanly and collegial reserve as I can muster – why his request is actually problematic, he first retreats into lawyerly distinction-making (comments won’t be deleted if they’re sufficiently intelligent, completely non-anonymous – note the deleted critic in this case was posting under a consistent handle – and sufficiently germane to the topic at hand), and then goes on to make the following remarkable observation:  

Why wouldn't you expect or demand that your commenters act in a way that would make you proud? What moral standards of kindness to the world do you hold? (I'm obviously not making a legal claim on you, but an ethical one, and this whole exchange finds me deeply puzzled by your putative ethical concern for students and their well-being, but not for your colleagues in the profession).

This is apparently going to come as a profound shock to Prof. Markel, but the actions of the commenter whose comment he deleted do in fact make me proud.  They make me proud to know I belong to a profession in which not everyone keeps his mouth shut and his head down in the face of the suffering caused in no small part by the apparently bottomless narcissism of people like Prof. Markel, who, when confronted by an eloquent description of just one aspect of the human tragedy unfolding before his eyes, reacts by placing the potential hurt feelings of law professors who might read a blog comment critical of their behavior on par with the economic and emotional devastation that has shadowed the lives of countless law graduates over the past generation.

This, then, is just one illustration of the code of silence with which we all live.  It is a code that, as the commenter whose words Markel tried to silence so perceptively noted, ensures that “in most quarters of legal academia, it's safe to rail against many things - just not the structure of legal education itself.”  The code of silence demands that, when your school publishes egregiously misleading employment and salary data, you say nothing about this to your students, or potential students, or most especially the public at large.  The code of silence demands that you leave matters such as skyrocketing tuition and crushing debt loads to be dealt with by the dean and central administration who, after all, are paid to deal with these important topics.  (I’ve seen considerable evidence that until a few people finally started asking uncomfortable questions recently, an astonishing number of legal academics didn't even know how much it costs to attend the institution which pays their salary). The code of silence demands that you hide even from yourself the misery and desperation of so many of your graduates, including many who are “practicing law,” so that there’s even less risk that you might say something to someone -- or at least someone who matters -- that could be considered less than gentlemanly and collegial.

But that code is beginning to break.