The College Fix

Tuesday’s press release provides a sad update on FIRE’s case at Syracuse University College of Law (SUCOL), which has threatened a student with “harassment” charges for the last two months because of the content of a satirical blog about life in law school.

Two months later, the university has refused to tell him what expression in particular justified the charges or even who is charging him. Worse still, the faculty prosecutor, Professor Gregory Germain, is now demanding a gag order on law student Len Audaer, his attorney Mark Blum (SUCOL ’91), and any media outlets that receive information about the case from Audaer or Blum.

Audaer potentially faces expulsion for his clearly protected expression, yet SUCOL does not even know whether Audaer has any relationship to SUCOLitis. Audaer has invoked his right against self-incrimination as promised by SUCOL policies, and SUCOLitis attributes its publication to a “team of scarily talented 2 and 3L students.”

Audaer’s ordeal began on October 15, 2010, when he was summoned to a meeting with SUCOL Associate Professor of Law Gregory Germain due to “extremely serious” charges. In the meeting, held on October 18, Audaer learned that the charges involved “harassment” for his alleged involvement with SUCOLitis. The anonymous, satirical blog attributed obviously fake quotes to SUCOL students, faculty, and staff. The blog included a disclaimer stating, “No actual news stories appear on the site.”

FIRE wrote Syracuse University Chancellor Nancy Cantor on October 25, pointing out that the investigation violates Syracuse’s promises of free speech and that the content of SUCOLitis falls far outside of Syracuse’s—and the state and federal definitions—of harassment. SUCOL Dean Hannah R. Arterian responded on November 1, stating that the investigation was continuing.

Yesterday, FIRE learned that Germain is demanding that Audaer and Blum adhere to a gag order in order to receive any information from Syracuse about the charges. Provisions for such an order are nowhere to be found among SUCOL’s procedures for addressing code of conduct violations. That means that Audaer is being asked to sign away his rights before he even knows what expression is getting him in trouble and who has complained.

The proposed gag order effectively prevents any media from reporting on the case using information they receive from Audaer or Blum, and it effectively prevents Audaer from interviewing witnesses:

Defendant Leonard J. Audaer and his agents are hereby ordered not to post on the internet or otherwise disclose any information obtained in the course of this proceeding, including without limitation the complaint, the students’ charging statements, the blog entries, and the testimony of witnesses, without assuring that all recipients of the information agree in writing as follows:

1. The names of the individuals identified in the information will not be disclosed in any article or posting on the internet without the prior written consent of the named individual.

2. In order to prevent misleading selective posting of information, if any document is posted on the internet or is otherwise made available on a public forum, the entire document must be posted in its entirety, except that the names of non-consenting individuals will be redacted and removed before posting.

Think about it: the second condition would ban media recipients from posting excerpts of disclosed documents “to prevent misleading selective posting of information.” Media outlets would be required to assent to this condition in writing. Further, anyone whose name is mentioned in a document to be published must provide written permission. Since Ted Turner and Ellen DeGeneres are named in one of the blog posts, the gag order would, by its own language, require written permission from them before reprinting the blog post.

Supreme Court Justice Louis Brandeis wrote that sunlight is the best disinfectant, but Gregory Germain is trying to keep this case in the dark. After two months, Germain won’t even reveal the basic information that Audaer needs to defend himself, and this is truly shameful.

And as Greg said in our press release: “Because of his alleged involvement with a blog intended to resemble The Onion, Syracuse has held harassment charges over Len Audaer’s head for two months. Now the university is trying to force him into silence, despite the fact that Audaer still doesn’t know the identity of his accuser or even what expression is at issue. Syracuse University College of Law should be demonstrating the importance of free speech and due process to its students by example; instead it seems to prefer the example of the Queen of Hearts from Alice in Wonderland.”

Indeed, this case is so horrendous that it invites literary comparisons. One commenter said it reminded him of Kafka. I hope there are some clearer heads at Syracuse University College of Law who recognize that the content of SUCOLitis comes nowhere near harassment and that this investigation needs to end immediately, before it causes further damage to SUCOL’s reputation.

by Adam Kissel

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