Reflections on the Duke Reply

Duke has filed its reply brief in its longshot demand that the court impose sanctions against attorneys representing the unindicted players and terminate the Duke Lawsuit website. Upon review, Powerline was puzzled by the University’s legal strategy:

Setting up this kind of website, and indeed ones that are much more aggressive, is a common thing for plaintiffs to do these days . . . I confess that it has never occurred to me to ask a court to shut such a site down. Lawyers should zealously represent their clients, but it rarely serves a client’s interest to become a laughingstock.

Duke’s lawyers, among whom are Clinton administration stalwarts Jamie Gorelick and Seth Waxman, apparently have no such qualms. They seek an order declaring, among other things, that the plaintiffs’ website violates local rules against extrajudicial attorney statements. Duke acknowledges that the material on the website either quotes or closely paraphrases the allegations contained in the plaintiffs’ complaint. Duke also concedes that the material thus falls within the safe harbor provided by the local rules for attorney comments that convey information in a public record. However, Duke takes the position that the statements nonetheless violate the local rules because they are “incendiary.”

Duke has no basis for reading into the local rule an exception for incendiary statements (or, in this case, statements it simply doesn’t like). Moreover, such an exception likely would be unconstitutionally vague.

At one time, it might have been surprising for a highly-rated university to push for unconstitutional restrictions on free expression. But not anymore and certainly not in the case of an institution like Duke.

As was the case in its initial filing, the Duke brief is notable for what it does not contain: the Duke filing does concede that “there is little precedent” for the brief’s argument, but in fact the reply provides no citation to any specific cases in which a court had constitutionally imposed sanctions against an attorney for a website or a press conference announcing the filing of a lawsuit. It’s difficult in any instance to get a court to impose sanctions. But it’s next to impossible when the party can’t even come up with one precedent to justify its demand.

The Duke position was a weak one from the start: the University’s claim, again, was that the press conference announcing the lawsuit and the Duke Lawsuit website violates Rule 3.6 of the North Carolina ethics code (which governs pre-trial publicity). That rule explicitly allows attorneys to comment on briefs and other court actions. It also includes a safe-harbor provision, which allows lawyers to address (such as, to take the most recent permutation, former New York Times and current SI columnist Selena Roberts accusing the plaintiffs of “irrefutable evidence of misogyny and race baiting”) unfavorable publicity not initiated by their clients. Finally, the rule’s provisions are not applicable to non-attorneys.

Duke’s demand to shutter the Duke Lawsuit website was particularly odd given that the University has its own website, filled with links to prejudicial statements about the lacrosse players. To take one example, here are a few excerpts from a party to the case, President Richard Brodhead, in his April 5, 2006 remarks:

We can’t be surprised at the outpouring of outrage [The “outrage,” at that point, had included “castrate” signs and “wanted” posters.] . . .

This episode has touched off angers, fears, resentments, and suspicions that range far beyond this immediate cause. It has done so because the episode has brought to glaring visibility underlying issues that have been of concern on this campus and in this town for some time—issues that are not unique to Duke or Durham but that have been brought to the fore in our midst. They include concerns of women about sexual coercion and assault. They include concerns about the culture of certain student groups that regularly abuse alcohol and the attitudes these groups promote. They include concerns about the survival of the legacy of racism, the most hateful feature American history has produced. [A University president linking the plaintiffs to the legacy of racism could be considered a highly inflammatory statement.] . . .

The objection of our East Campus neighbors was a reaction to an attitude of arrogant inconsiderateness that reached its peak in the alleged event but that had long preceded it. [Brodhead never has explained how “an attitude of arrogant inconsiderateness” could be reflected in an alleged event.] . . .

Quite separate from the criminal allegations, there have been reports of persistent problems involving the men’s lacrosse team, including racist language. [Neither Brodhead nor anyone at Duke has ever revealed what these “reports . . . including racist language” entailed. The Coleman Committee found no evidence to substantiate the president’s assertion, which he presented as an unequivocal fact.]

Certainly those remarks—which Brodhead has never retracted, and for which he has never issued an apology—are far more “incendiary” about parties to the case than anything on the Duke Lawsuit website.

The University’s reply, however, deems acceptable the Duke website that links to these remarks, since “the Duke webpage cited by Plaintiffs is an archival site that has not posted any new information since May 2007.” If that argument sounds familiar, it should: it’s essentially the rationalization that Mike Nifong made for his pre-primary publicity spree. Because he hadn’t officially charged anyone, Nifong mused, Rule 3.6 didn’t apply to his public remarks. The DHC panel emphatically rejected his claims. That ruling, of course, isn’t binding on a federal court. But since Duke’s original brief explicitly cited North Carolina precedent, it’s hard to see how the University’s attorneys expect the court to simply ignore the Nifong finding.

The Duke Lawsuit website has links to other sites, including DIW. This setup also drew criticism from the Duke attorneys: because the lawsuit site has “links to community blogs critical of the Duke Defendants,” the lacrosse players’ attorneys have “responsibility for [the blogs’] content.”

The idea that linking to a blog implies responsibility for all of a blog’s contents represents a fundamental misunderstanding of how the blogosphere functions. It’s also worth examining the Duke reply’s claims about “community blog” DIW as “critical of the Duke Defendants.”

There certainly are those whose conduct DIW has consistently criticized—Wahneema Lubiano, for instance; or William Chafe; or Mark Anthony (“thugniggaintellectual”) Neal; or Charlie (“McCarthy-lite”) Piot. None of these figures, however, are defendants in the lawsuit. The “Duke Defendants” are the University, Duke Hospital, Brodhead, Peter Lange, Larry Moneta, Tallman Trask, John Burness, Sue Wasiolek, Matthew Drummond, Robert Dean, Kate Hendricks, Aaron Graves, Theresa Arico, and Tara Levicy.

Of that group, I’ve never said anything critical—indeed, have never said anything much at all—about Drummond, Dean, Hendricks, or Graves. The blog has generally praised the efforts of Peter Lange, and had good things to say about Tallman Trask’s remarks in the March 30, 2006 Academic Council meeting. On several occasions, I thanked John Burness for his assistance in responding to my inquiries; and rarely, if ever, criticized his performance. DIW has, of course, criticized Brodhead, and sometimes sharply so—for among other things his refusal to enforce the terms of the Faculty Handbook, and for his inconsistency in demanding due process for all Duke students, not just those in politically correct cases. But the blog has also praised the president (as in his Law School apology or in his January request that Reade Seligmann and Collin Finnerty return to school). And while DIW has been consistently critical of the performances of Tara Levicy and Larry Moneta, I’m unaware of any publication about the case that has reviewed the record of either figure positively.

The Duke reply’s description of the blog, therefore, is incomplete at best and inaccurate at worst—perhaps explaining why DIW received praise in, among other publications, New York, cnnsi, Slate, Volokh Conspiracy, the Wall Street Journal, the Chicago Sports Review, the New York Sun, New Criterion, and the Worcester Telegram. This issue is a comparatively minor one in the overall filing, but it gives a sense of just how far the Duke attorneys needed to stretch the facts to make their case.

Given the high quality of Duke’s counsel, what motived the filing? A DIW commenter offered this analysis, which seems to me astute:

As a litigator, my reaction to Duke’s motion is somewhat different from many on the blogs. I give the Duke lawyers plenty of credit (I learned long ago that underestimating or dismissing opposing counsel’s apparent “silly” motion strategies is potentially case killing). The Duke lawyers are smart as hell and must have thought very carefully before filing this motion. My intuitive sense of their true objective: to feel out the judge for receptiveness to limiting discovery. The “close the website” motion will provide both sides some insight into whether the assigned judge will be pro-protective order, or pro-open, public access.

A protective order under Rule 26 of the Federal Rules of Civil Procedure allows a party opposing disclosure of documents, information, or testimony to move for an order, after showing “good cause”, that the subject information should not properly be within the public documents realm.

It is normally an onerous burden to carry, but it is also judge-specific. Moreover, a judge has very wide discretion in ruling on discovery motions, and such rulings are rarely overturned on appeal.

The defendants have placed front and center the judge’s inclinations in this regard. Viewed through this lens, the motion is very smart litigation strategy. If the judge summarily rejects the motion, then I wouldn’t be surprised to see the Duke defendants aggressively seeking a settlement. If the motion is granted, the Duke defendants have some hope that they can move forward with a reasonable likelihood of success in obtaining a protective order that would prevent damaging documents and deposition testimony from being made public.

In either case, and if I am correct, it seems to me that Duke has much to fear if discovery proceeds without protective order limitations.

To paraphrase former Supreme Court Justice Louis Brandeis, “Sunlight is the best disinfectant.” Given their record over the past two years, it’s easy to understand why some of the Duke Defendants would prefer to remain in the shade.