FRIDAY, JULY 27, 2007

Free speech: substitute teaching redux 2

In 1962, during the well-meaning but misguided “psychiatric intervention” that followed my expulsion from William and Mary for “telling” the Dean of Men that I perceived myself as a “latent homosexual,” one therapist said to me, “You have little comprehension of the consequences of the things you say and do.” (See the entry Nov. 28, 2006 on this blog.)

I’m presenting this discussion, inside out, to analyze and “come to closure” on a serious incident on October 2005 at one high school where I had substitute taught a lot.

But one thing about the “consequences” is these always have a social frame of reference. A statement that I had made as a simple innocuous fact is given all kinds of meaning by others (including the likelihood that I would never procreate), and what the social and business standing of others connected to me might become. People assume that most statements that have any chance of getting around are made for some kind of ulterior motive. They usually wonder what the person’s “gain” will be. They believe the statement is intended to entice or provoke some kind of action or reaction by others? Why? Because “man is a social animal.” In particular, most people accept the idea that their personal welfare is connected bidirectionally to the welfare of their families, communities, businesses. Most people accept some notion of solidarity and the idea that the reputations of other family members can be affected by the appearances created by their actions, and that statements about anything may be filtered by the partisan interests of the group. Some collective reputational responsibility is involuntary. Therefore, most advocacy speech from companies and organizations, while polished and “professional,” is often manipulative and skims the surface of psychological truths. We should do better than this.

So, it is with Internet speech. We’ve seen, since the beginning of 2006, increasing concern from employers about what job applicants and current employees say on their social networking profiles and blogs, given that (often) anyone on the planet (including stakeholders of the company) can find them with search engines. I’ve noted that employers tend to look at web behavior sartorially, the way they look at dress. They assume that any thing there was put there to make an impression. They are generally unwilling to take a “literary” interpretation of what they find, even if it is in fact literary in nature. This “Dress for Success” mentality assumes a certain social conformity in the way people compete, that family and children can sometimes justify behavior that might seem boorish if done by the individual on his own.

There is precedence for believing that people will believe what they see enacted in fiction, ever since Shakespeare embedded "The Murder of Gonzago" as his "mousetrap" in Hamlet. Fiction that takes itself seriously and looks real enough can cause real trouble in how readers or watchers interpret it.

Now, in addition to the books and website (dating back to 1997), I had started working on some screenplay treatments and scripts for my material, in 2002 while still in Minnesota. By 2004 I was starting to post some of the material on my doaskdotell site, in one directory (/scrplys). In some of these, a character arguably resembling me (and the resemblance is sometimes supported by the use of the name of my book and websites, although my own name is not used) appears, and gets into trouble, by giving into “temptation” and doing some things right on the edge that I don’t think I would do in real life. In the fictitious stories, the legal consequences are played out and shown, although there are lots of other complications. In one screenplay short, called “The Sub”, a substitute teacher, after some provocative behavior by a student (that, from a legal viewpoint, could be interpreted in more than one way, depending on jurisdiction), winds up getting into trouble, and thrown into prison where he dies, while (in a twist on the Oscar Wilde “Dorian Gray” theme) the student performs his musical composition at a public concert after his passing. Another relevant fact, is that early in the story the student saves the sub’s life with a defibrillator at school. (Defibrillators were not yet in common use in public schools with the screenplay was posted in early 2005, but school systems were beginning to announce plans to use them then, and they are in place now in many systems). I’m not going to be real specific about this, and I’ll refer to it as the “Oscar Wilde syndrome.” It's important to note that there are no images or pictures on these files, and there is no explicit language in the usual sense of the concept on the Internet. (See reference to Jennifer Steinhauer story in The New York Times, July 29, 2007, for another case in WA and CA that is not as similar to this as it may seem, discussion here.)

People will ask, what is the point? Aren’t movie screenplays supposed to go secretly through third party agents? Yes, sometimes, but now there is an Internet, and you want your ideas to get known and circulated. What are the ideas? Some them have to do with responding to religious right notions about “Oscar Wilde” that I want to throw back into their faces. (Link here provides more.) So what, I saw, any one can be tempted. The temptation of Jesus is in the Bible, and He did not surrender to them, but He admitted to feeling tempted. Why is this wrong? When are feelings and actions to be separated? There’s more. As the psychiatrist (above) said, I like to step on toes sometimes, particularly to make people “squirm” when caught in their “irrationality.” I like people to become aware of their false dependencies on others (particularly in the sheltering or pampering context of the family and institutionalized intercourse) that sometimes hide them from personal responsibility. I think there is a divide between certain zones of acceptability as defined in statutory law, as perceived as a moral issue, and as perceived in terms of social ostracism (the heightened need to protect minors from unquantifiable risks). All of this is explored in the various screenplays (some of which, if actually made and released, would probably fall into the soft R rated category). But, if someone who has not learned to think beyond his social or familial sense of “self interest” finds these, he or she might be fooled and believe that the material is posted to entice him to do something. Not so (the website had disclaimers saying contacts had to be legal in intent). Social context seems to be everything, and here it leads some people into circular "reasoning" based on what they believe the motives of others to be relative to only their frame or reference.

There is also a sequence in the screenplay where the “protagonist” refuses to complete a special education assignment when asked to borrow swimming trunks, help in the locker room, and get in the deep end of the pool. The protagonist claims that the military gay ban can cause a legal issue if he is asked to take care of the intimate needs of disabled kids.

In October 2005 I took a four-day assignment in a 9th Grade high school English class at a certain school. For most of the week, the kids were to analyze the famous short story (and compare to the movie) of “A Most Dangerous Game” by Richard Connell. The story has plenty of references to racism and anti-social behavior on the part of the captor. But on the second day, Wednesday, there was a break as the kids were to take a certain standardized test, which I helped proctor. A teaching intern (essentially a student teacher completing a coordinated degree program) was present. There was very little real need for continuous supervision of kids that day. On that that day, The Washington Times presented an editorial ("Suffocating the First Amendment" -- see entry Jan. 31, 2006 on this blog) that essentially claimed that bloggers could be shut down by the circumstances surrounding campaign finance reform. (I have discussed this on this blog on Jan. 31, see archive link). I showed the intern the article and she was quite interested. I told her I could give her some other materials, which were links on my own website ( where I had discussed similar issues. I gave her a handwritten sheet of paper with these links (I didn’t use the computer, but I still have a detailed record of exactly what these links were) and I didn’t mention the screenplays. It’s obvious that the effect of campaign finance reform on blogging and other political speech is by itself an important issue of interest in a public high school environment (civics and government).

On Thursday, the school day passed without incident as we watched the Connell movie (review)in each class (with the intern present), but after I got home I got a cell phone call from an assistant principal saying that I had given a staff member “a reference to an inappropriate website” and that “she was offended by it,” that the rest of the assignment was canceled and that it would be reported to the substitute office. I called the office, and it requested that I should request a meeting. I did, and that did not happen, but instead I was simply reinstated for the school. I had another assignment at the school in December, when the principal flagged me down. She characterized it as a “big problem” but talked about it in terms of separating “personal stuff” from the job. I was allowed to work the day (and not canceled the next day, which was snowed out), and overheard one student say that I was the “gays in the military guy.” I decided to stop substituting while considering the possible (and unpredictable, it seemed) legal ramifications whole incident, but was reinstated (at my request) in January 2007, but again excluded from that school.

Remember that most school systems that hire unlicensed subs allow principals to remove substitute teachers from a list without cause. The reasoning is based on incidents like this. Schools are messy places. Allegations are made, and they are often untrue and cannot be verified. But a principal is responsible for protecting safety and security at a school, and in a real world (especially given the history of the past ten years or so), cannot always reliably distinguish a real danger from an imagined or alleged one. That seems a reality of our post 9/11 world. The substitute office reminded me of this when reinstating me in January (see this blog January 29). Again, the “three strikes” policy allows schools to eliminate substitutes administratively, with no admission of wrongdoing by other side and with no legal effect.

I have copies of the ISP server logs of accesses to my domain during that period, and can track search requests, page requests, IP addresses and their owners, and specific dates and times. (I also submitted these to the attorneys for the COPA trial in Philadelphia.) From all of the factual information and investigation, this is what I can conclude with high confidence:

(1) The school probably had been told about the website by a parent (maybe after a kid looked up my name with a search engine) the previous June, when I had had many assignments there. (I never mentioned my sites or books in class, but I was in one good class long enough that many students would have become curious when they went home.) There was an unrelated incident there with another teacher, which would have expanded the radar screen. It’s important to note that no one ever contacted me about this directly, however. (Still another irony comes to mind: the class in June had been honors chemistry, and the PBS film Copenhagen (based on Michael Frayn's play) had been shown; in this play, during World War II Heisenberg and Bohr meet and must consider the ethics of handling scientific discoveries that they know as "truth" and still "own" but that could do great harm if released; review.)

(2) When I mentioned the website to the intern, the name was recognized immediately. I have since learned that the school tried to cancel the rest of the assignment that day, but the school district did not do so (or the school didn’t) and I worked normally the next day, Thursday. This supports the idea that the school knew about and was concerned about the website (from it having been found by a search engine) and particular screenplay when I started the assignment and might have alerted teachers to see if I mentioned it. Had assignments continued there, it probably would have approached me about this matter. Note also: "Mentioning" the site to another teacher (even verbally, without using school system computers) might meet a "legal standard" for "on campus" activity (in some cases, like Hazelwood), although here that interpretation sounds facetious to me: I was trying to make a comment about a political problem that could eventually prove relevant to a class that she taught.

(3) During the third day (Thursday), there were two sessions with the school district IP address looking at materials on my domains, with particular attention to the screenplay in question, which had not been mentioned on the note I had given the intern. During the first session, there was a legitimate verification that I was the author (reconciling “John” with Bill”) although it’s clear from other circumstances that the school already knew that it was mine (it would have been simple to verify on WHOIS). During the early afternoon session (completed a bit more than an hour before I was called) there was a legitimate effort to look at more of the material I had suggested, including COPA materials, in order to determine the context and intent of my postings. About ten days later, there was another session traceable to the school district, with legitimate requests that appeared to be trying to reassure the district that I had genuine free speech rights and some sort of "serious value", however perplexing. (This case is very different from COPA, but the overriding issue of context relative to the size of a web page or site still holds.) Had the Washington Times editorial never appeared and had I never mentioned my own site as a result but continued getting assignments at that school, I believe that this matter would have been brought to my attention soon anyway.

(4) The school had not blacklisted me because of the domain, but did so after I mentioned my connection with it. That, in the school’s mind, crosses the “threshold of danger.” (Some of the "danger" might not reside directly with me, but with the speculative idea that false accusations against teachers could occur.) It is not clear (given the academic, political and social relevance of the specific materials that I actually gave them) that would normally be a legally supportable conclusion, without making up a lot of rhetorical arguments (like personal business in the workplace, etc). But school district policy allows an administrator to exclude a sub for no reason at all, in order to deal with ambiguities like this.

(5) The intern was not “offended” by the site in the normal sense of that word. There was no pornography, violence (as with Cho at VPI), racism, and other material that is generally thought of as objectionable. In fact, there is no sexually explicit material (in the usual sense) in the screenplays. The “offense” comes from mainly from that one fictitious screenplay (and maybe one other) where I apparently portray myself (that is, through a character who is obviously similar to me) in a negative light with a “propensity” (to borrow the famous word from the military “don’t ask don’t tell” policy) toward inappropriate interests and for a heightened risk for certain crimes. In other words, they regard the screenplay(s) as “self-defamation.” The other disturbing observation to them is that in two of them, students are shown as making inappropriate advances. The students are not based on any known or obviously similar real people, however. Again, it's important that the treatment files clearly label these works as fiction, include analytical diagrams comparing them to known screenwriting structures, and mention other similar films on the same material; anyone would know that these are scripts and not literally real. Another disturbing complication may well be that the screenplay and website say that the military "don't ask don't tell" policy could, at least indirectly, affect the legality of a gay teacher giving custodial care in a pinch--a speculation that the school might have to take at face value and believe is cause for disqualification, because emergency contingent reassignment of substitutes to unchosen duties is sometimes possible.

(6) Subsequent contact shows some genuine disagreement among officials as to this matter, as it is ambiguous; however school system policy would allow an administrator at that school to ban that substitute from assignments there, even based on his or own personal perceptions of an ambiguous situation; this is simply a consequence of being allowed to sub without a license (there is no "presumption of innocence" or "benefit of the doubt"). That is an administrative, and not a judicial matter.

There care cases known from publishing law where novel authors have been sued for presenting characters who too closely resemble real people. In some cases the violation of a confidentiality clause has been an issue. This tends to become a problem where a professional writes a novel and someone who was a client claims that a character is based on him or her, or in a situation where someone is in a confidential group where personal information is disclosed and a member of the group writes about one of the characters or the leader. (The novel “Touching” – Bindrim v. Mitchell.) In California, particularly, the idea that a work is fiction has not been an adequate defense. In other states (New York) the bar of proving similarity has been much higher. Based on some of these precedents, it’s reasonable that a teacher can be libeled in “fiction” and that so could a student if the student was recognizable. Here is a Bindrim link. Following the reasoning of Bindrim (if it applied in Virginia, see below), if the teacher in the screenplay were a recognizable known individual other than me and if the story really were fiction (it is), that could set up a libel suit. There could have been a chance that a story like this about some obviously different person (say a heterosexual female) could have accidentally resembled closely someone real and set up a litigation exposure.

But what happens when the author is the teacher, and the intention is to set up a hypothetical situation and demonstrate the possible outcome? That is the case here. I don't know of any case law that definitively answers a question like this.

If the author and the subject are the same, does this refute the claim that the author is defamed? Is there a presumption that the reader should automatically realize that this is a demonstration or a scenario of something that could happen is someone gave into temptation? (It's interesting to make a comparative legal analysis of O. J. Simpson's non-published "If I did it" missive.) But in a school environment, that presumes sufficient maturity level of the visitor, who could be a student. Furthermore, in the “Bong Hits 4 Jesus” case (blog) ), the Supreme Court wrote that speakers, especially in connection with speech somehow linked to school, must be careful to anticipate the likely way an item of speech will be interpreted, even if the message is objectively (and maybe deliberately) ambiguous and otherwise legally acceptable. For a teacher with respect to minors, this is analogous to the “rebuttable presumption” clause in the military’s “don’t ask don’t tell” policy that presume that certain statements made by a uniformed Armed servicemember imply a likelihood that homosexual acts by a servicemember will occur in the future. It doesn’t sound fair, objective or “rational,” but the law allows this kind of thinking, at least in civil matters (where there is no criminal prosecution -- but remember the "pre-crime" in the film "Minority Report"; a work of fiction by itself is hardly "evidence" of a crime, whatever happens on "One Life to Live" -- although it could beg for testimony). The speaker here seems to be in a kind of “Orson Wells” position (for provoking panic in his radio broadcast about UFO’s), or perhaps the position of someone making a joke in a security line at the airport.

So, one says, my screenplay is the legal equivalent to a “confession” or "admission." Well, not exactly. First, I am not aware of any litigation in Virginia dealing with defamation in fiction. The reasoning is based on litigation in other states, mostly California and New York (where the movie studios and book publishers are). But it is clear that civil law needs to draw a line somewhere and a theory of "persuasive evidence" could be deduced from an opinion for a similar case in another state; otherwise one could defame someone else by pretending that a semi-truthful narrative is “fiction.” It's also noteworthy that, with fiction set in the present day (instead of a historical era, or fantasy or science fiction) there is often an intention to make the reader "believe" the events, so it sounds tautological that the author is responsible if the reader really does "believe" it! Since this incident we have seen an explosion in arrests of teachers around the country, and the NBC Dateline series. So hypothetical “self-defamation” in a public space does not seem like a legally acceptable practice now, even when the material is intended to be “educational”.

I have since removed from the domain (from public display, that is) materials in the screenplays that present this kind of potential problem (gross “self-defamation” in the sense of Bindrim). I had done that even before taking an unrelated non-classroom assignment with the school district in the spring of 2006, and it was not there during this past school year when I substitute taught again. I do have other web materials (movie reviews) that deal with these issues, but these are movies about other subject-characters not possibly resembling me, so they cannot pose this "big problem." From a legal point of view (I’ve checked some other opinions beyond the scope of this essay), I believe that it is important that, besides that no one have contacted me illegally, that the total number of assignments that I take before deciding once and for all on whether or not to seek a teaching license be limited to a finite number and time. This limit will be reached before the end of 2007. One political development that would be essential to my being able to enroll in a licensure program with confidence is the repeal of the military’s “don’t ask don’t tell” which I believe can have an indirect legal effect on teachers confronted with certain situations. Again, one observation that remains relevant is that I follow my own rules (as discussed in the previous post). My contact policy, limiting contact to legal purposes only, is here.

I am still left with some troubling observations, about what the law now calls "implicit content", a concept that is still evolving and that will take some major litigation events around the country (including cases with teachers) to pin down. We have created a technology, predicated on individualism, that allows anyone to reach the planet with what he or she has to say, and bypass all the old bureaucracy (unions, organizations, hierarchies) that used to control speech. But suddenly employers are finding that they have to look at speech in a somewhat “non rational” way and view it the way the public will view it, with some degree of collective emotion -- even mob rule and tribalism. That's why "online reputation management" has popped up as a new pursuit, although, beyond responding to libel (or privacy invasion or similar torts), the ethics of this kind of pursuit sounds questionable. I say, if you have to worry "What will the neighbors (or school principal) think?" about everything, there is no reason to say anything at all, because it would just be manipulating things to placate the emotions of others. But some of those third rails are still out there, hidden in the underbrush.

Update: Aug. 16, 2007

There is a situation in California which some visitors might consider comparable. My notes about that situation are here.

I realize it is "dangerous" to even "suggest" a legitimate comparison, but some people may. The comparison seems to be that, if one portrays a character whose circumstances and personality resembles oneself as having inappropriate "desires" or committing inappropriate acts in a fictitious setting (like a screenplay) that seems to be the "legal equivalent" of announcing those desires as one's own in public, at least in California where the "Touching" case occurred. (I am not in California.) I would say that, based on the experience of the past two years with media reports of employer objections to employees or applicants parodying themselves on social networking sites, the practice (I've given it the name "dreamcatching" on other posts) is legally questionable or objectionable, maybe to the point that it would violate an AUP since any ISP operates in California and other states (maybe New York) with a history of similar litigation.

There a couple of major differences, however, between this problem (a fictitious screenplay) and what is happening in CA now. One is that the "dreamcatching" screenplay obviously makes many important social and political points that gives it legitimate artistic value when looked at in the context of other legal issues (obscenity, COPA -- had it stood up). It even has legitimate value for a reasonable subset of minors. The current situation in CA may be closer to obscenity because of the apparent lack of legitimate value in what that blogger was doing. But the troubling point seems to be that the screenplay was self-posted, without supervision of the expectation of legitimate renumeration. That, in some people's minds, raises questions about purpose of motive. A book (even the O.J. Simpson "If I Did It"( or screenplay), if it goes through legitimate third party commercial channels of an industry with investors and completion bonds and insurance (as in the motion picture industry) may be recognized as more legitimate (even if some people still object to the content). Some persons will argue that when material like this is self-published without financial reward, it is only natural to expect many people to read an "ulterior personal motive" into the posting, and view it as enticement. That is, without further evidence of benefit the poster does not have the right to have a self-posted item respected as "literature" even if it has some value. Some people will argue that this kind of material should not be self-posted (that even fits into the recent "April's Law" proposal) at all, although up to now the intellectual property law treats self-published and trade-published materials the same way. That could change, I suppose. That would require a longer trail of legislative and litigation experience (in other states or at a federal level), which many of us do not want to see.

I want to note that I have posted my own "blogging policy" which assumes that people who make decisions about others on the job are not as free to speak candidly on sensitive matters on their own in public as those who do not. Short term substitute teachers do not give grades and do not have real authority. So I was obeying my own rules, and that supports some contention that I did not violate "good faith." But the rules have changed, given all the public concerns about employers and social networking. Now it is clear that one should not state directly, or indirectly as in the "Touching" sense, that one might not be fit for a job one holds, even if one is trying to make a point of political or social irony or protest social attitudes. It's easy for me to imagine even more extreme "Stranger than Fiction" scenarios in which even I might feel that the doctrine could apply, so I can't discount the fact that the principal could have a less tolerant standard of what kind of indirect candor is acceptable in a fictitious setting.

The visitor is encouraged to search for "touching Bindrim California" and locate the article "Stranger than Fiction: The Novel that Gave Rise to Libel Damages" published in Press Law, The National Law Journal, May 1980, by James C. Goodale. Because it is a Word document, I didn't give the link; you can also look at the html cache. Although I can understand the reasoning behind "The Touching Doctrine", many law professors disagree with it and believe it inhibits genuine literary speech.

Update: Oct 5, 2007. The controversy over Paramount Vantage 's delay of the release of the Dreamworks film "The Kite Runner" illustrates another example of "The Touching Doctrine" in a dangerous international context. See this blogger entry.

For more on teacher "free speech" and personnel issues, see this blog, Dec. 6, 2006, with the coverage of a "Dr. Phil" episode. There is also some discussion on my COPA blog here, especially Jan. 9.

In retrospect, I wonder: if my "bringing this up" in response to the Washington Times editorial and drawing attention to the "personal stuff" was necessary for them to be sure "it was me," then why did they apply the "Touching" doctrine at all? If they could identify me in the internals of the screenplay, why weren't they sure enough about the site? I know from the server logs that they did apply the "doctrine". And if so, they certainly knew about all the other material on the site, to give it "context". Perhaps they didn't think it was "my place" to draw attention to a problem that had so many personal aspects. Okay, but the newspaper editorials had just done the very same thing. This all started with an improbable confluence of coincidences. Sounds like a docudrama mystery. Would make a good movie in itself.

Update: Nov. 14, 2010:

I have a coordianted post now on the "Bill on Major Issues Blog" today (11/14/2010). Navigate to it through Blogger Profile.

Update:  Aug. 13, 2013

I did a little more forensics with the Internet Archive.  It looks like I posted the screenplay and treatment on Feb. 4, 2005 (they had been written in October, 2004).  It would not have been conspicuous to students or teachers who knew about the site in June 2005 when I had multiple assignments at the high school, but it would have been much more conspicuous, to people familiar with the general nature of the doaskdoell site, after late July, 2005.  "The Privilege of Being Listened To"' was apparently posted in June 2005.  Evidence suggests that the school already knew about "The Sub" before it even looked at my site on Oct. 13, because it tried to ban me on Oct. 12, and the system failed to inform me or register their action.  The only reasonable way is that someone knew enough and was curious enough to wade through the site in June 2005, even though it would not have been as easy to find as it would have been six weeks later.   The moral of the story is, what you post, if it is provocative, even more likely to surface, even if obscure, than you think.

Update: Nov. 12, 2014

There is a more detailed account of what was in the actual server logs and forensics on my WordPress "do ask do tell notes" blog, March 6, 2014, link here.

Posted by Bill Boushka at 12:20 PM 

Labels: campaign finance reform and bloggers controversy, existentialism, fiction legal risks, implicit content, my history as a substitute teacher, stuteach speech, teachers: performance and reputation, WMexpulsion

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