Article on Xoxohth and Legal Gossip

Ellen Nakashima of the Washington Post has written an article about Xoxohth. The hook is an alleged recent campaign of harassment against certain women students who were “outted” by their fellow law students in a contest rating their hotness. Although XO’s owners eventually shut down that contest, the material remains cached on google. (As an aside, I disagree with Dan F. that David Lat’s contest is worth celebrating, even if the participants are all willing.)

Nakashima has done a fairly decent job at setting out the basic story of the board, and I imagine that if she’d more space, she could have dug into some of the more interesting issues confronting the site and anonymous writing by law students generally. Of course, much of the conduct and comments she details are disgusting. Others are simply foolish. (I’m not sure what law student said: “We’re lawyers and lawyers-in-training, dude. Of course we follow the law, not morals.” But it is a remarkably foolish comment. Lawyers, at least, are subject to an ethical code that goes significantly further than this fraternity-version of Holmes would suggest.)

But, the part that most interested me was the following:

Employers, including law firms, frequently do Google searches as part of due diligence checks on prospective employees. According to a December survey by the Ponemon Institute, a privacy research organization, roughly half of U.S. hiring officials use the Internet in vetting job applications. About one-third of the searches yielded content used to deny a job, the survey said. The legal hiring market is very competitive. What could tip the balance is the appearance that a candidate is a lightning rod for controversy, said Mark Rasch, a Washington lawyer and consultant who specializes in Internet issues. [DH: With respect to Mr. Rasch, I doubt that law firms are using google in this way, especially large firms where hiring is attorney driven. Who has time?]

The trend has even spawned a new service, ReputationDefender, whose mission is to search for damaging content online and destroy it on behalf of clients. Generally, the law exempts site operators from liability for the content posted by others, though it does not prevent them from removing offensive items. [DH: Paging Solove! Blog-story idea for you!]

“For many people the Internet has become a scarlet letter, an albatross,” said Michael Fertik, ReputationDefender’s chief executive. The company is launching a campaign to get AutoAdmit to cleanse its site and encourage law schools to adopt a professional conduct code for students.

A “professional code of conduct” for students? I’m not sure what this means, and how it would overlap with existing codes of conduct that govern most law students. Indeed, I’d argue that the problem of defamatory anonymous speech does not arise from an absence of law, but rather the inability to use social norms to constrain anti-social speech. [Update 3/7: I’ve thought more about this, and changed my mind as to a national code’s efficacy. See my post here for details.]

In any event, if I’m moved and if I’ve time, I’ll try to write more on this tomorrow. For more on Xoxohth for now, see my posts here, here and here.

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