Berating The Bumptious: Whittier College’s Extraordinary Threat Letters

Since absolutely nothing is happening this week, I’ve decided to write about a rather meta-topic: dumb defamation threat letters.

When we discuss threats to free speech we tend to focus on big, splashy things: laws aimed directly at weakening First Amendment protections, law enforcement policies that treat protected speech as criminal, performative censorial lawsuits, and even broad social movements that (depending on who is complaining) represent either a substantial threat to free speech or an exercise thereof.

But in my experience, there is a vast amount of “practical censorship” operating below public notice. By “practical censorship” I mean censorship that happens not by state action or court procedure, or through public pressure, but by non-public threats to invoke our thoroughly broken civil justice system through a defamation claim.

I get one or two requests a week for pro bono help in situations where someone has been threatened with litigation over their speech. In the vast majority of these cases, the potential defendants lack the resources to get good legal advice about their rights, let alone litigate the case. Most of the potential defendants are not lawyers, do not have the training necessary to evaluate the threats and their rights and potential defenses, and don’t even know the right questions to ask.

The ones who reach out to me are few and lucky because they at least have an idea of how to start to seek help. The much more common result is that people with the right to speak stop speaking, delete online content, and withdraw from the fabled marketplace of ideas. This is a rational response to a system that is completely unaffordable and incomprehensible to most Americans. Is your free speech worth your financial ruin? Most people would say no, at least about most topics.

Lawyers know this, and unscrupulous lawyers use it to make meritless threats and demands. They bluster about the law while misstating it, invoke completely irrelevant legal principles, make demands they have no legal or ethical right to make, and invoke potential consequences that they can’t actually inflict. They do it because it’s often effective.

How much speech protected by the First Amendment gets “practically censored” this way? There’s no way to keep track, but I see it constantly.

I have a particular example from my practice that hit the news recently. I rarely write about my own cases in public: as I’ve said before, my firm and my clients have nothing to do with this publication and no influence over the content. So this is me writing as an individual, not on behalf of my firm or my client.

Last week the Los Angeles Times ran a story about a long-simmering dispute at Whittier College, a small private liberal arts school that boasts (sort of) Richard Nixon among its graduates. To summarize, there’s been a bitter fight between the school’s new President and her administration, on the one hand, and many alumni, faculty, trustees, on the other, about the direction of the school. The administration has attempted to frame it as a political conflict between new, diverse, and progressive leaders against a reactionary old-guard; the “Save Whittier College” faction has portrayed it as a revolt against an incompetent, entitled, and high-handed administration that’s letting enrollment plunge and destroying the school. You can read the administration’s general position here and the Save Whittier College group’s position here. The Times article also does a very good job at an even-handed summary.

I have a strong view on the merits but don’t seek to convince you here. Instead I want to direct your attention to some of the most extreme and ridiculous threat letters I’ve ever encountered in my First Amendment practice, which is roughly 21 years old now (old enough to drink and to need to).

I represent Elizabeth Robison, a former Whittier College employee and active member of the Whittier College community. Ms. Robison has exercised her First Amendment rights about the controversy surrounding Whittier College. Whittier College’s response was a series of shocking - and I use that term advisedly — letters vaguely and ambiguously threatening her. The letters are linked in the Times article, and also on this page posted by Save Whittier College. The second threat letter is particularly notable. It includes very frank demands that Ms. Robison stop criticizing Whittier and its leadership, completely lacking any serious effort to suggest how her speech is outside First Amendment protection:

The letter goes on to demand that Ms. Robison stop criticizing Whittier’s President and claiming that criticizing her is a civil rights violation:

This is, of course, sheer nonsense. There is no plausible argument that Ms. Robison can be prohibited from undermining the “reputation, authority, and position” of a college president, absent an applicable First Amendment exception. There isn’t one. It’s similarly simply lunatic to assert that a member of the college community, by criticizing a college president, is violating civil rights laws.

I wrote a letter in response. It’s linked on the Save Whittier College page. It is perhaps not the most friendly or diplomatic letter I’ve ever written, but I confess: I was completely stunned by the bad faith effrontery of Whittier College’s threats. Whittier College hasn’t responded. They also haven’t sued. If they file a frivolous defamation claim, I will — to use decorous and technical legal terms — beat them incontinent with California’s anti-SLAPP statute. The behavior of Whittier College and its attorneys is shameful. Whittier is supposed to be an institution of learning devoted to free expression. It’s flailing around with wild, ignorant legal threats like a disturbed pro se. It is not acting like a college worthy of respect.

Here’s the problem. Elizabeth Robison has the resources and sophistication to find and hire a lawyer. Most people don’t. As buffoonish as Whittier College’s threat letters are, foolish and meritless (albeit perhaps not to this degree) threat letters get sent by the dozen, every day. Attorneys helping people respond pro bono are sweeping back the ocean.

What can we do about this particular form of censorship? A few things. We need to make efforts to educate the American public about its free speech rights so they aren’t so easily cowed. We need to create accessible resources spelling out their free speech protections in comprehensible, non-jargon ways. We need to create institutions that are available to offer advice and pointers, and encourage more lawyers to write pro bono responses to protect the speech of people who can’t afford lawyers. And we need to inflict marketplace-of-ideas consequences on the would-be plaintiffs and their lawyers who make these threats. They should be called out, condemned, and shunned.