Media Interest Heightens in Syracuse's Investigation of Satirical Law Blog as FIRE Intervenes

Public interest continues to heighten over the Syracuse University College of Law (SUCOL) investigation of SUCOL student Len Audaer, an alleged author behind the anonymous satirical blog SUCOLitis. Audaer, as we reported here earlier, is currently being investigated for "harassment" on the basis of the blog's content—though he remains unaware of the identity of whomever has brought the complaint. SUCOLitis is now private and requires a password for access, but there is no indication from Syracuse that it will stop the investigation.

FIRE has transitioned from concerned onlooker to active participant in this worrying case, as The Daily Orange reports today:

[O]n Monday, the Foundation for Individual Rights in Education addressed a letter [available here] to SU Chancellor Nancy Cantor, saying the organization was deeply concerned about the threat to freedom of expression, to which the law school's investigation has led. Len Audaer is the only student accused of writing the blog and the only student under investigation by the school.

"Since no harassment has occurred, either by law or by Syracuse's own policies, the investigation of Audaer or any other potential author of the blog cannot be understood as any more than a politically motivated witch hunt," Adam Kissel, FIRE's vice president of programs, said in the letter.

Kissel would like Chancellor Cantor to respond to his organization's letter by Nov. 12, he said. Kissel also said, in the letter, FIRE is "committed to using all of our resources to see this situation through to a just and moral decision" and that SU should correct its error and drop the investigation immediately.

The Daily Orange also notes that "[i]n the Statement of Student Rights and Responsibilities section of the SU 2009-2010 Student Handbook, the right on speech, expression and press supports FIRE's view."

The investigation continues for now, however, and earlier statements from SUCOL professor and faculty investigator Gregory Germain—carried in the Daily Orange and the ABA Journal, among others—indicate an aggressive investigation. The seriousness of the investigation is also reflected in the comments of John Sardino, of Syracuse's Department of Public Safety, who broaches the alarming idea that the blog may not be safe from state harassment laws:

The Department of Public Safety uses New York State Penal Law when it comes to harassment, although the university relies on the Code of Student Conduct for its stance on each matter, as well, said DPS Capt. John Sardino. Sardino said SUCOLitis might be a case of aggravated harassment in the second degree.

"There's aggravated harassment, which picks up a lot of the electronic communications like repeated phone calls," he said.

Section 240.30 of state penal law states an individual is guilty of second-degree aggravated harassment when he or she initiates written, electronic, telephone communication or communication by a person who is likely to cause alarm or annoyance. The penal law states the individual also must have the "intent to harass, annoy, threaten or alarm another person."

Sardino said a blog could fall into this category if particular people were picked on in multiple posts. But in most cases, the blog uses students' names once or twice.

Perhaps—owing to the blog's non-public status—Sardino hasn't been able to view the blog's content himself and is judging SUCOLitis on the suppositions of others. Were he fully informed of the blog's content, I can't imagine he would conclude that SUCOLitis constituted aggravated anything, much less harassment.

Little surprise, then, that the case continues to attract media attention--fortunately with some more down-to-earth judgements about the case. A Monday Daily Orange article highlights the divided opinion over the investigation and the chilling effect on free speech it has, and Roy Gutterman, Director of the Tully Center for Free Speech at Syracuse, is particularly on point with his assessment:

In this case, the blog does not demonstrate harassment, Gutterman said.

"Harassment has a specific legal definition," Gutterman said, which includes persistent and threatening behavior. "A single reference on a blog is not harassment."

Removal of the blog from public viewing demonstrates self-censorship, Gutterman said. If the creators of SUCOLitis found it necessary to censor themselves after being criticized by an institution at SU, other students will probably feel the need to limit their public expression, too.

"As far as setting a precedent, it does," Gutterman said. "If you offend people, you're going to get in trouble."

And as FIRE notes in the same article:

"It looks like Syracuse has achieved the chilling effect on speech that some have been looking for," said Adam Kissel, vice president of programs at the foundation. "Syracuse is teaching students that they can shut down expression they don't like, even though it is protected, just by filing a harassment complaint. This is a sad day for students' rights at Syracuse."

Daniel Luzer has also written about the investigation at the reliably excellent Washington Monthly college blog, gleefully poking holes in SUCOL's basis for its investigation.

The website (sadly now password protected) does not constitute "an issue of free speech, Germain said, because the site is libelous and there are limitations to individual rights." Audaer faces expulsion.

Now I'm no lawyer, but this seems like a very creative interpretation of libel. According to the Media Law Resource Center:

In order for the person about whom a statement is made to recover for libel, the false statement must be defamatory, meaning that it actually harms the reputation of the other person, as opposed to being merely insulting or offensive.

Luzer continues:

Furthermore, the troublesome statement must be "reasonably understood as stating actual facts." As the Supreme Court determined in 1988's Hustler v. Falwell, it's not libel if sensible people wouldn't take the claims to be factually accurate. And presumably that line about how the blog is satirical would seem to take care of that little problem.

Still, Germain complains, "Is it normal for blogs to be put up that ridicule certain students' character?"

Well yes. Yes it is. That's what happens with satire.

All excellent points; all seemingly beyond the grasp of the SUCOL administration. Hopefully that will change soon, as the reality dawns that SUCOL's investigation of this protected satirical blog has become its own kind of bad joke.

FIRE will continue to update Torch readers on this case, and you can read our letter to Syracuse Chancellor Nancy Cantor here.