The Volokh Conspiracy
[Orin Kerr, November 14, 2005 at 12:32pm] Trackbacks
A3G Responds:
Over at Underneath Their Robes, A3G responds to the New Yorker story.
Chart:
UTR just went from being informative and quirky to informative and weird. Lat's/A3G's response is bizarre. Why not just say "I'm out, and I hope to keep my job"?
11.14.2005 1:46pm
Richard Bellamy (mail):
In any contested elections in my home state of New Jersey, the losing candidate should be sure to check whether Lat and A3G are both registered to vote.
11.14.2005 2:09pm
guest:
Why is it weird? Lat's not the first person to write a blog from the perspective of a fictitious character. Remember that HLS student who started a blog that purported to be written by an LA biglaw partner? In this case, A3G has more in common with Lat than the HLS guy/fictitious law partner did with each other, but it seems clear from the response on the blog that A3G is a separate character, and the blog is not meant to be read as though written by Lat himself.
11.14.2005 2:28pm
Dem:
I don't find writing under a pseudonym odd, but I think that the explanation A3G provided on UTR is. The explanation that A3G and Lat are really two different people comes off as (a) a little unstable and (b) trying to have your cake and eat it too.
11.14.2005 2:37pm
Medis:
I'm not sure there is really a perfect non-internet analogy for this. It certainly isn't just fiction, but on the other hand it isn't just a journalist writing under a pseudonym. In that sense, insofar as blogging and other internet postings are somewhat new phenomena, I think this is sort of a new phenomenum as well.
11.14.2005 2:42pm
MDM (mail) (www):
Actually, there's a very good analogy out there--Libby Gelman Waxner. For about 10 years now, actor/comedian/playwright Paul Rudnick has been writing a review column for Premiere magazine as Libby Gelman-Waxner, a 40ish bored rich housewife housewife with youngish kids. It's the same thing--Lat picked a voice (far from his own) to write in.
11.14.2005 3:19pm
Cheburashka (mail):
It reminds me of Primary Colors; I think the author denied for years being the author, then when he finally admitted it, claimed it was like it was written by somebody else.
11.14.2005 3:24pm
Medis:
MDM,

About three seconds after I posted that, I realized a flood of prior examples was likely to come, making me look like an idiot. But I welcome more ... this should be fun.
11.14.2005 3:25pm
DJ (mail):
For what it's worth, add my vote for "weird". But who knows? Maybe in a few years, this sort of quasi-fictitious cross-gender blogging will seem completely ordinary.
11.14.2005 3:26pm
DJ (mail):
For what it's worth, add my vote for "weird". But who knows? Maybe in a few years, this sort of quasi-fictitious cross-gender blogging will seem completely ordinary.
11.14.2005 3:26pm
Shelby (mail):
Medis/MDM:

Does Stuart Smalley count? Or does it veer too far into silly?
11.14.2005 3:32pm
Lawbot2000:
This reminds me that Benjamin Franklin did something very similar. When he was a teenager, he anonymously wrote to the newspaper several times pretending to be a middle-aged woman.
11.14.2005 3:47pm
Richard Bellamy (mail):
I believe Henry Adams is the first well-known man to write under a female pseudonym (the previous ones all went the other way), publishing "Esther" under the pen name of "Frances Snow Compton".
11.14.2005 3:50pm
Crime & Federalism (mail) (www):
The issue is whether "Groupie" is a pen name or a fictional character. I consider A3G a fictional character, though today it's been difficult to suspend my disbelief.
11.14.2005 3:50pm
Samuel Alito (mail) (www):
How is it so hard for everyone to believe?

A3G is a person Dave created, and used to obtain gossip that he could broadcast to the world (how many of you would have sent in your tidbits on what judge you saw at what picnic if it were Dave's picture on the site).

That doesn't mean that Dave thinks that John Roberts is a "hottie" any more than it means that the author of the Harriet Miers blog was really nominated for the court.

It's a new world. Get used to it.

Samuel A. Alito ("The A Stands for Awesome")
http://samuelalito.blogspot.com
11.14.2005 4:05pm
Medis:
Shelby,

I was more thinking of situations in which the fiction is not obvious. So, Smalley was obviously a fictional character. I'd say the same goes for Tony Clifton, although I gather some people thought he was completely real.

Come to think of it, though, Clifton might be a prominent enough example of what Lat basically has in mind. Indeed, maybe Lat was pleasantly surprised that so many people thought A3G was real.
11.14.2005 4:06pm
J.. (mail):
Relax, people. Lat isn't crazy (or, at least, doesn't display craziness here). Lat is just having fun.

To take any of this seriously is just silly. The blog is a bunch of words that don't really change regardless of who writes them. It is either fun or not fun. It is either cute or not cute.

I think it remarkable that Lat created the creature he created. Bravo to him. (Though, Nabokov he is not!)
11.14.2005 4:06pm
Eh Nonymous (mail) (www):
I interpret just the opposite: Lat is clearly a fictional character, with no google hits, no website, no web presence at usdoj.gov/usao/nj/, no picture in the google image search, and a couple of (probably invented) quotes... provided by A3G herself and some journalist.

I call shenanigans. I think A3G, who "we all know" really is an associate on the left coast at a BigLaw firm, is just throwing sand in our ears. Blowing smoke in the gears? Muddying the heretofore clear waters of anonymous and/or pseudonymous blawging.

Also, I may or may not be a figment of my author's imagination.
11.14.2005 4:06pm
breakdown:
The fact that A3G is a man and was able to fool so many people for so long is just further proof of his comic genius and his mastery of the genre (if tabloid-gossip can be so dignified). If this is all a gag, even better.

I, for one, will enjoy the blog all the more now that I know that A3G is a (partly) fictional character. This is high comedy people.
11.14.2005 4:14pm
Bobbie:
I'm non-plussed by the gender revelation, but Lat's begging for a book deal and more press coverage turn me off.
11.14.2005 4:19pm
anonymous coward:
Why are so many lawyers frustrated novelists? I suspect Lat would be well above par. Congrats to A3G for getting written up in the New Yorker, even though only after Harriet!! Miers!!!11!
11.14.2005 4:41pm
Marcus1:
I think the explanation was there to dispell the idea that this is just a guy with gender issues blogging as a girl. I'd venture a lot of people were going to say "weird" regardless of his explanation.
11.14.2005 4:50pm
tdsj:
"Lat's begging for a book deal and more press coverage turn me off."


yes... I like UTR... but at some point humorous self-referentialism turns into annoying self-importance.
11.14.2005 4:53pm
DT:
UTR has just been taken down.
11.14.2005 5:53pm
Plainsman (mail):
Yep. The site appears to be down. It asks for a password now.
11.14.2005 6:07pm
A.S.:
I'm betting his boss didn't appreciate a "catty" website about all of the judges they argue in front of...
11.14.2005 6:37pm
guest:
Quite frankly, although I enjoyed reading UTR, this was bound to happy. It was clearly being written by someone "within", and either as a litigator in BIGLAW or a government lawyer, what David was doing was way out of line. Fine to do it as a journalist or recovering lawyer. But this was a train wreck waiting to happen.

He will be very lucky if he isn't dismissed.

PS: But he was hinting for a while on the blog that he wanted a book deal and would like to get paid for blogging, so perhaps this little adventure is an attempt to leave the law for belles lettres?
11.14.2005 7:13pm
Catholic Dad (mail):
I admit it. I'm really a Protestant Mom. OK, everyone else 'fess up, too. I suspect that the so-called "unhyphenated conservative" who posts here is really quite hyphenated (s/he may even be dashing!). And "plainsman" is a woman who is not plain, nor does she live in Plains, GA, nor on the Great Plains. Oh, the fun we will have.
11.14.2005 9:07pm
Josh L.:
7:13pm guest: What "train wreck"? How was he "out of line"? It's one thing if his boss was annoyed by all this. But do you really think this is a firing offense? He never mentioned his work or the cases he was working on. All he said was that sometimes he'd be slammed with work and couldn't post that often. What's the big deal?

On a somewhat related note, I bet there are plenty of folks who would WANT to hire A3G. In fact, I bet if he sent in a clerkship app to Sup. Ct. Justices, he just might get an(other) interview or two. He's obviously smart. Assuming he agreed that blogging about his work (or at all) while clerking would be off-limits (and you just KNOW A3G would make that deal in order to become one of the "Elect"), wouldn't he be a fun guy to have in chambers?
11.14.2005 10:12pm
seamus (mail):
Wow. "Josh L." - or is that another moniker for Lat? That's just too over the top.

He caused (at least some) professional discredit upon himself and his co-workers by treating the judiciary with far less than the proper protocol. I don't disagree that he's smart, but intelligence does not always good judgment make. It *was* funny. But a practicing AUSA? I cringe.
11.14.2005 11:26pm
a new blog:
There is someone trying to fill the void...

http://judgesarejustlikeus.blogspot.com/
11.15.2005 12:04am
Medis:
seamus,

At least some prominent federal judges seemed to think it was all in good fun.
11.15.2005 6:41am
Columbienne:
Eh Nonymous wrote:

Also, I may or may not be a figment of my author's imagination.

He gets it! It always amazes me how the whole postmodern thing seems to have completely passed by the legal profession after a brief detour into critical legal studies...

That said, I do agree with Seamus that this is a firing offense. You just can't be a practicing journalist covering the judiciary and a practicing litigator at the same time -- it's a conflict of interest.
11.15.2005 7:39am
RPS (mail):
Could someone offer some thoughts about where the First Amendment comes into this, if at all? In other words, could the Fed force him to take it down, i.e., you are fired if you don't.

I vaguely recall a test or factors or something like that, but I'll leave that to our more learned commenters.
11.15.2005 8:58am
Columbienne:
I think the Pickering balancing test would apply here, and A3G would unfortunately lose. The test balances the employee's interest in the speech vs. the government employer's interest in efficiently providing public services.
11.15.2005 9:34am
WB:
The Supreme Court's latest word on that subject is San Diego v. Roe

The Oyez summary of the holding of the case is:


Government employers, the Court wrote, could restrict their employees' speech in ways that would be unconstitutional if applied to the general public. But government employees had the right to speak on matters of public concern, such as on government policies of interest to the public. In this case, however, Roe's activities did not inform the public about the police department and were also detrimental to the force.


(The facts were that the SD police dept fired an officer for selling porn videos of himself on e-bay, some of which included him wearing his uniform (initially).)

If the DOJ made him take the site down and fired him, I think that would be constitutional. What I'm really curious about is what actually happened.
11.15.2005 9:41am
Half Sigma (www):
I wrote in the voice of "Libertarian Girl" and I assure you that she became a different persona with her own views and opinions that weren't mine. The more I wrote as her, the more she became her own person. (It's really too bad that someone discovered the blog's secret after only two months--I think the blog would have become Big.)
11.15.2005 9:45am
Mr. Mandias (mail) (www):
"Lat's begging for a book deal and more press coverage turn me off"

Me too. And the timing made me mad, because I had some good fashion notes from the latest FedSoc Convention that I was going to pass on to A3G.

Note: Mr. Mandias is a Mr. but not a Mandias and a penname but not a fictional identity.
11.15.2005 9:55am
SimonD (www):
Wonder how long it'll be before Wonkette is outed as Bill Frist?
11.15.2005 10:10am
Harriet Miers' Law Partner:
Do I have to disclose that Harriet Miers is a fictional identity( at least to those of us that have worked with her)?
11.15.2005 10:15am
Medis:
I don't think Lat's potential First Amendment claim is an automatic loser under the Pickering-Connick test. The initial question is whether Lat was speaking on matters of public concern, and I think he clearly was. The test in question is based both on content and context. Almost anything involving the government tends to pass the content portion of this test, and obviously Lat was speaking directly to the public, so he passes the context portion as well.

Of course, the government can still win if it can show that these free speech interests (which include not just Lat's, but also the interests of his audience) are outweighed by the government's legitimate interest in regulating its employees. This would be a closer question, but as the test has been applied, the government has to show a relatively close fit between the regulation in question and its interests. So, maybe they can make the requisite showing in this case, but they would need something pretty specific.
11.15.2005 10:41am
Columbienne:
Medis - I would think that the conflict of interest between Lat as a blogger about judges and Lat as a lawyer would be more than enough. I'm not sure if this conflict rises to the level of violating ethical rules, but it seems more than enough for Pickering. But I don't know much about how Pickering has been applied--are there any specific cases you think would illuminate?
11.15.2005 10:48am
countertop (mail):
I can't access the site, its become password protected. When did this happen?
11.15.2005 10:53am
Medis:
Columbienne,

I'm not sure what conflict of interests you have in mind. But since this would be brought in the Third Circuit (I think--since he is based in NJ), you might want to look at Swartzwelder v. McNeilly, 297 F.3d 228 (3d Cir. 2002). In that case, the Third Circuit invalidated a rule requiring police officers to get prior permission (based on "validity") before they could provide expert witness testimony. Again, without knowing exactly what you have in mind, it is possible that this case addresses some of your questions.
11.15.2005 11:13am
Columbienne:
Medis - Maybe the MPRE is too fresh in my mind, but it seems like A3G was setting himself up for having an ongoing literary interest (reporting on judges) in cases he could forseeably be involved in litigating before those judges. To me, those interests seem like a conflict -- would you really have full confidence in your attorney if you knew that he also wrote gossip columns about the judge hearing your case?
11.15.2005 11:31am
Marc Shepehrd (mail):
The site became password protected around 5:30pm last night.
11.15.2005 11:31am
SimonD (www):
Could someone offer some thoughts about where the First Amendment comes into this, if at all? In other words, could the Fed force him to take it down, i.e., you are fired if you don't.
As I see it, Lat has a First Amendment right to write whatever he sees fit, free from persecution. The important qustion, though, is whether he has a right to be a US Attorney.

Does Rankin v. McPherson, 483 U.S. 378, apply?
11.15.2005 11:36am
Marc Shepherd (mail):
FYI, there's an update over at How Appealing. Howard Bashman has confirmed that the decision to go public was David Lat's alone.

It is still unclear why UTR has gone offline, and whether Lat fully appreciated the consequences of 'outing' his identity. Bashman also reports Judge Richard Posner's comments. Posner believes it will be impossible for UTR to continue.

As an aside, Posner gets credit for having speculated early on that Article III Groupie was, in fact, a man.
11.15.2005 11:41am
Lawbot2000:
I don't know if Posner should get credit for saying that A3G was a man. Posner also claimed that A3G was not a single person, but a collective. You can't give him credit if he just guessed several possibilties and one of the many he threw out there turned out to be right.
Of course, an argument could be made that Posner was right all along about A3G being a 'collective' because Lat appears to be slightly schizophrenic.
11.15.2005 11:47am
Medis:
Columbienne,

The MPRE is only fuzzy to me now, but I thought the rule was just about having a literary interest in a case you are actually litigating. I don't think it applies to a more general literary interest in all things judicial. Indeed, it seems to me that a lot of lawyers comment on all sorts of legal matters, and judge-related matters, without running afoul of legal ethics.

My guess is that the government would have to assert a more practical interest (in not having its attorneys gossiping about federal judges), rather than an ethical breach. Again, the problem is that under Pickering-Connick, once the speech is on a matter of public concern, the government needs to tailor its regulation to specific concerns.
11.15.2005 12:50pm
Thief (mail) (www):
Since we are in disclosure mode now, allow me to state for the record that I have never been arrested or convicted of theft, larcey, burglary, or any such crime.

That said, I'll miss UTR. Even if it really "was a man, baby."
11.15.2005 2:54pm

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