I had an exchange with another lawprof that I thought might be worth airing, since it deals with the genuinely difficult question of the proper private, nongovernmental response to evil speech (which as it happens is the broadest version of the subject of my forthcoming law review article on "Deterring Speech: When Is It "McCarthyism"? When Is It Proper?). The lawprof wrote to me:
I read with some horror, and admiration for Eugene's forthrightness, the exchange with the NeoNazis who began "counting Jews" on the UCLA law faculty. These fringe nuts are a bit scary, but I must confess I find the following even scarier, since it involves the kids who are or may be our students: http://www.xoxohth.com/main.php?forum_id=2&hid=0&qu=jews
Click on a few of the threads that are called up, and you'll see what I mean. This purports to be a prelaw discussion site, and it appears a large number of applicants and current law students post there. If the appalling anti-semitism isn't enough, then try the racism: http://www.xoxohth.com/main.php?forum_id=2&hid=0&qu=nigger
Perhaps if you called attention to this, the site's managers might "clean up" the content a bit? And perhaps students might be encouraged to move to the more mature and civil prelaw sites, such as www.lawschooldiscussion.org.
Here's a slightly cleaned up portion of my response, which I sent to the lawprof by e-mail:
Thanks very much for the kind words, and for the pointer — these are pretty appalling posts. But my sense from just a casual look was that (1) these threads are actually a small fraction of what is posted on the site (or so it seems from a quick look at http://xoxohth.com/main.php?forum_id=2 to see the most recent posts), and (2) in the few threads that I've seen, others are responding to the neo-Nazis, quite aptly and harshly. This is probably to the good, since (A) maybe a few of the idiots will be shaken out of their idiocy — not very likely, but it happens sometimes, and it's ultimately the only way of effectively fighting the problem, it seems to me — (B) and since decent readers will realize that these opinions are out there, and that it's important to respond to them. So it doesn't seem to me to be particularly wrong for the site managers people to maintain this as an unmoderated discussion board (I assume that it is).
I should stress again that I find these questions of what is the proper private response to be quite difficult, and my views on the subject are generally much more tentative than my views on many First Amendment questions. Nongovernmental entities may and often should do things that the government may not; and their ethical rights and obligations are often more complex and context-sensitive than what we'd expect from the law.
Also, if the discussion board decided to filter out rude statements in order to make the discussions more valuable, or even to filter out evil ideas because they don't want their property used to promulgate such ideas, I wouldn't object: I think they're ethically entitled to do this, and there's no reason to condemn them for it.
But I don't think they're ethically obligated to engage in such filtering, for the reasons in the start of my quote: Providing a forum for these posts, in a context where they can be quickly responded to, may actually be something of a public service.
UPDATE: My former student Raffi Melkonian writes:
I'm a long time user of the xoxo board. Your response to the lawprof . . . .is quite right. Sure, there are a wide range of stupid, racist, and otherwise unpleasant posts on the board. But it also provides a valuable service for law school applicants, facilitated by the higher traffic such openness (even to evil speech) provides. . . .I suspect most racists would have little love for Mr. Melkonian (as you can tell from his name, he's of Armenian extraction), and he for them.