Posted by David Millon, J.B. Stombock Professor of Law, Washington and Lee University, in defense of the SFHB

Professor Richardson's widely circulated pronouncements conflated two issues that are actually distinct. The first is the so-called "free speech" question. In this context, that question boils down to whether students have some kind of right to publish anything they wish, without being held accountable for things like The Bracket that have no redeeming value and are designed simply to hurt and humiliate their targets. Professor Richardson thinks that punishment is inappropriate, that people should simply "move on." Of the various pieces that have been posted to this site, no one seems to endorse the "no limits" position advocated by Professor Richardson. That's a good thing. Episodes like The Bracket are less likely to recur if students understand that there are in fact limits on what they can write and publish, and one good way for them to learn that lesson is for the faculty to stop telling them that there are no limits.

Attention seems instead to be focused on the second issue, which is the legitimacy of the SFHB process. Much has been made of the fact that these proceedings are closed and that the accuser's identity need not be not disclosed. Preposterous analogies have been drawn to Nazi Germany. Yet there are good reasons for those features of the process. If those harmed by The Bracket had to appear in public or reveal their identities to those who deliberately harmed them, would any complaints actually be brought forward? Any student of ordinary sensibility would be concerned about reprisals-- social ostracism, more harassment, more nasty words in a student publication. (Recall that at the time of this hearing Professor Richardson was saying publicly and repeatedly that the faculty and administration have no authority to regulate the content of these publications.) The real problem with the current process is that there can apparently be no finding of sexual harassment unless a student exposes himself or herself to the risk of more harassment. People seem to have lost sight of the fact that the accused students were acquitted on the sexual harassment charge. That's the real problem with the current system.

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