Monday, November 12, 2007

Teaching Sensitive Material Sensitively

Over at PrawfsBlawg, Howard Wasserman asks:

Is it a good idea to use the AutoAdmit complaint in class to teach the various procedural and jurisdictional material illustrated by the case? On one hand, the events detailed in the complaint are so offensive as to be disconcerting and distracting to many students. And they likely are uniquely so to female students because of the explicitness of many of the threats of sexual violence; a female colleague I trust suggested that the sexual violence takes this beyond the ordinary disgusting speech situation. On the other hand, the extreme offensiveness may make it a better teaching tool. It forces students to get beyond their visceral reactions to the case to see and work through the issues that underlie the merits and that may, at times, override those merits (here, by potentially depriving them of their chosen forum) and overwhelm the simple dichotomy of sympathetic plaintiffs and unsympathetic, hiding defendants.

Do the obvious costs of the offensive nature of the material described outweigh the teaching benefits? I really would like to hear thoughts from prawfs and students, especially women.

I responded there in a comment:

In this case I think moderation by the professor is key to ensuring a productive, civil discussion. This may be hard to avoid when teaching the case in Torts or Gender Discrimination and the Law, but I am sure even in those classes it could be sensitively handled.

It would be helpful to know from which perspective you want to teach this material. Your points about the civil procedure issues are interesting and illustrative, and don't touch on the merits of the claims asserted--IIED, would a "reasonable" woman feel threatened, etc. Even if you do get into such a discussion, I think that the professor must assert his or her prerogative to moderate the discussion and make sure it doesn't devolve into ad hominems and getting "too personal." When students start asking each other accusatorily "how would YOU feelif this happened to you" or "how can YOU possibly think this a credible threat"--then the discussion denatures, and it becomes less productive and useful to use this case as a real world example.

In such a case, the professor should step in and say "let's bring this discussion back to the issues at hand: jurisdiction, the reasonableness of the plaintiff in this case, whether site administrators may be held legally responsible for the statements made on their site, etc.

However, this is not to say that personal experiences may not be discussed, if the professor thinks that they would serve some pedagogical goal of reinforcing the "real world" aspect of the case. So often in law school, cases are too abstracted away from lived experience, as if to discuss affirmative action or racism is something so far past in history. In fact, that's the usefulness of contemporary real-world examples, they contextualize the law in important ways and remind students that controversies are alive and real, and that lawyers do not only engage in esoteric, low-stakes arguments. I imagine a lot of crim profs have to deal with this when discussing rape law, as do employment discrimination profs when discussing sexual harassment law in any way other than straight blackletter law.

Policy discussions are where most classroom discussions have the most potential to derail and grow ugly. Again, this is the role and purpose of the professor: stipulate at the beginning that as a class, we are going to work through a controversial, divisive case that contains offensive, sensitive material. This is to be a "safe space" for discussion, but not an unopinionated one: norms of collegiality will be enforced, and those who feel truly uncomfortable with the discussion are not required to participate actively by contributing to the discussion, and may if they feel truly uncomfortable with the discussion of sexual violence excuse themselves.

This I think is justified, because I do not think students have the right to excuse themselves from learning "offensive" material just because of moral objections (e.g. those who decline to attend class on days that Lawrence v. Texas or Roe v. Wade are taught, and it goes the other way too), but they may keep silent, and may excuse themselves if the discussion would cause them to relive trauma. However, my justification for this is predicated on the professor moderating the discussion to keep things civil and avoid inflammatory discussions that might cause pain to those who have suffered from sexual harassment or threats of sexual violence. If this is unavoidable, then that student should be excused from participation without further comment to the class.

I think that this case could be taught in ways that challenge students to think of the various procedural, substantive, and normative issues in useful and critical ways, and if the conversation is moderated effectively, this could be very productive. Students will be required to confront their conceptions of free speech, privacy, and anonymity. Students will not have to admit to their own bifurcation of public, named conduct and private, pseudonymous online conduct, but they will nevertheless think about such issues. Students will have to make distinctions between moral arguments and legal arguments; thus while they are not required to approve of certain conduct/statements/outcomes, they may be reasonably required to consider whether such moral opprobrium may be enforced by the law, or whether such conduct rises to the level of the legal test for defamation/IIED/etc., and whether this outcome is legally justified.

As for myself, I react to this case differently depending on how I think of it. If I react to it purely from a gut level, I feel absolute horror that such statements and threats were made, and were allowed to be made unmoderated and without any repercussions. On a legal/technical level, I think that Anthony Ciolli should not have been a named defendant, based on what I understand to be the correct reading of the law. While I would have preferred that he take down offensive/threatening comment threads, he was not legally required to do so. Indeed, if he could not have done so anyway per his site ownership agreement, then I would agree that the professional and personal consequences that befell him were more severe than deserved, or at least not commensurate to his culpability, as he didn't write the offensive statements/threats. Normatively, this case opens a whole can of worms for me. It forces me to confront my rather broad First Amendment beliefs (which are nowhere near the restrictive nadir they were when I was in the throes of CRT-dom and rading Words That Wound, in fact they may have swung back to the polar opposite). My excoriation of the vile, rephrehensible posters is distinct from how I think of the case legally or indeed, even of the site adminstrators. My delight in the lawsuit and the public outcry the lawsuit represents stems more from a sense of justice that 1) victims of sexual harassment and threats of violence can and do go to court to enforce their rights, 2) such behavior is does not pass unremarked in today's society, and indeed, the unified vehemence against the misogynist, racist, anti-semitic remarks is something to be celebrated as norm-enforcing reflective of contemporary social mores.

It's all a sticky wicket, which is why it's so hard to discuss sensitively and so easy to misstate what you really think--because you can think about this case in so many ways, and have so many different thoughts and reactions. It is useful to think about this case though, if only to acknowledge different attitudes within oneself, and to remind oneself how important tone, context, expressin, and moderation are.


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