In a decision with potentially large ramifications, New York Federal Judge LaShann DeArcy Hall won't dismiss a libel suit against "Shitty Media Men" creator Moira Donegan.
Explaining, the judge says it is possible that Donegan created the entry herself. The judge believes that Elliott should be able to explore whether the entry was fabricated. Accordingly, discovery proceeds, which will now put pressure on Google to respond to broad subpoena demands. The next motion stage could feature a high-stakes one about the reaches of CDA 230.
Lies, Damned Lies, and Bar Applications
Many years ago, there was a hotshot young journalist named Stephen Glass, on staff at The New Republic and writing other pieces for Harper’s and Rolling Stone and other high-profile magazines. He wrote amazing stuff. Smart, talented, and ambitious, he did things like reporting on both civil rights leader Vernon Davis and young College Republicans engaged in out-of-control drunken debauches. He profiled teenage hackers naming their own price for services to big corporations. Eye-opening and deeply interesting pieces, compellingly-written, really great stuff, with only one fly in the ointment of this truly promising journalistic career.
Very little of it was true.
Glass had made damn near all of it up. Utterly humiliating his defenders on the editorial boards of these venerable publications, he had taken them all in. Probably starting with just a little fudge here and a tweak of a fact there, it eventually grew into him creating shill websites, having fake business cards printed, and imposing on his brother to pose as a source for verification purposes.
He came clean after he was exposed by an actual journalist, apologized to the victims of his fabrications, and then wrote a book called The Fabulist purporting to describe his own adventures from his own perspective, and that was found to have contained untruths and fictions as well. The whole sordid affair was eventually biographized in the film Shattered Glass. I’m told the film is quite good; I’ve not seen it myself.
After his scandal broke, Mr. Glass earned a law degree with honors from Georgetown University Law Center. He passed the New York state bar in 2000, but was not admitted to practice in New York because his journalistic misdeeds were thought to indicate that he lacked the moral character sufficient to allow for admission to the bar. (You may insert whatever joke you wish about attorneys and moral character here. We’ll come on back to that subject in a bit.) He found work as a paralegal at a personal injury firm in Beverly Hills, and has taken and passed the California bar exam.
Again, his application for formal admission to the bar has been held up on moral character grounds. He was declined admission, again because of the journalistic escapades, and has appealed to the California Supreme Court. Which recently heard oral arguments on Glass’ moral character application, something it does only rarely.
I’m of two minds about the question. Glass made his ethical lapses fifteen or more years ago. He’s been put through a tremendous public shaming. At some point, there has been enough punishment, hasn’t there? It’s not clear that he committed any crime, although he may have committed civil wrong like defamation. And I sure as hell wouldn’t want to have my own career held up because of mistakes I made, even grave ones, fifteen years ago when I was young and unwise and not yet molded by the experiences that have cumulated to make me who I am today. I would want to be judged based on who I am now.
But on the other hand, there are two
things at [kinds of misdeeds that show] the very core of what attorneys are uniquely entrusted with by the nature of our profession [why the good moral character of an attorney is especially important.] One is to steal from a client. We hold special power and special knowledge over our clients’ financial affairs; we can take our clients’ money and prevent our clients from ever even knowing they had it in the first place.*
The other is to alter evidence — whether that is spoliation of evidence, manufacturing of evidence, or subornation of perjury. We are sentinels of the truth. We deal in facts, evidence, and our arguments and negotiations are only credible to the extent that they can be trusted to be based upon the truth. Whatever jokes about attorneys lacking integrity you might have made above, the fact is you should insist that your attorney be someone who scrupulously deals exclusively in truth. Liars lose when their lies come to light.
What Glass did was really bad, in this exact arena. His biography and the fabrications in that suggest that he didn’t learn much from his experiences, including that he didn’t even learn that he would almost certainly be aggressively fact-checked.
When the facts aren’t there to support a case, the attorney’s job is to mitigate the damage. It isn’t to manufacture better evidence than what really exists. Glass’ escapades raise a serious concern that when the facts he wants aren’t there, he will use his considerable talents — for they are considerable — to create better ones.
So I’m very happy to see that Stephen Glass is being examined closely. I’m glad that the guardians of entry into my profession are taking a wary stance with a person with this history, and I’m also glad that he’s being given a chance to prove himself as redeemed. What I’m not certain of is what sort of showing he can make that would convince me that he was redeemed.
According to the NPR story linked above, he put on a series of witnesses of past employers, including the owner of the New Republic (I note, not an editor) as well as judges and lawyers, who attested to his good character. Is that enough? It doesn’t feel like enough to me. Maybe feel isn’t the best gauge here. At least one Justice asked what extraordinary things Glass has done since his disgrace to make things better — how has he tried to encourage honesty in journalism? It seems he’s spoken at a few symposia about his experiences and said all the right things at them, but otherwise hasn’t done a whole lot other than lead the life of an apparently talented paralegal.
There is no evidence, though, that since the publication of his biography that Glass has engaged in any sort of dishonest conduct. I suppose we can presume petty social untruths along the order of “Oh, I’m doing fine today” when he was really unhappy, or “Sure, you look great in that dress.” But on anything material, there’s no evidence that he’s spun untruths along the lines of his former life of a speculative fiction novelist masquerading as a hotshot journalist.
Let’s assume that since his public shaming was completed, he has in fact led an honest life, and offered appropriate and sincere apologies expressing contrition for his past actions. But nothing more.
Prudentially, I think I’m unmoved by this showing: simply leading a life that didn’t get him in to further trouble is a relatively low bar, and for a profession in which personal integrity is a principal asset, I want to see something more than the norm by someone whose previous behavior demonstrated a significant drop below it.
And, I’d also be a little bit wary of seeing Mr. Glass representing an adverse party in a lawsuit I was handling; while most of my opposing counsel I have no reason whatsoever to suspect would have engaged in any sort of nefarious conduct like spoliation of evidence or subornation of perjury, I can’t say that I would have the same presumptive confidence in Stephen Glass as opposing counsel.
I could be persuaded to change my mind about Mr. Glass. I don’t want to be ungenerous in dispensing forgiveness or uncharitable in presuming future dishonesty. But I just don’t think he’s done enough to change my mind yet, not with a showing like this. What bugs me is that I can’t really think of what it is that I would want to see him do or say that would accomplish that, and I would like to give him (and thus everyone) the courtesy of defining what might change my mind other than to insist that it is changeable.
Nebulous as my standard of persuasion seems to be, it’s not been met, not with the showing described in reports about what he offered the California Supreme Court. Without wishing him ill fortune in life, I can’t say as I’d be pleased to welcome Mr. Glass as a brother member of the Guild. Not yet, anyway.
* Why would a lawyer steal from his client? Because he is an addict and needs to feed his addiction, more often than not. Also, thanks to Professor Aitch for highlighting an absolutely awful first sentence of this paragraph, which I have edited to hopefully come closer to my intent.
Burt Likko is the pseudonym of an attorney in Southern California. His interests include Constitutional law with a special interest in law relating to the concept of separation of church and state, cooking, good wine, and bad science fiction movies. Follow his sporadic Tweets at @burtlikko, and his Flipboard at Burt Likko.