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Monthly Archives: October 2015

Legal Blogging and the Rhetorical Genre of Public Legal Writing

Jennifer Murphy Romig


Legal Blogging and the Rhetorical Genre


This article brings scholarly attention to the blog posts, tweets, updates and other writing on social media that many lawyers generate and many others would consider generating, if they had the time and skill to do so. In the broadest terms, this genre of writing is “public legal writing”: writing by lawyers not for any specific client but for dissemination to the public or through wide distribution channels, particularly the Internet. Legal blogging is a good entry point into public legal writing because legal blog posts often share some analytical features of longer articles alongside conversational conventions typical of writing on social media. Legal blogging is certainly not new, but this article brings new attention to it.

The article begins by reviewing helpful (nonlegal) advice from two recent writing guidebooks, Christopher Johnson’s Microstyle: The Art of Writing Little and Roy Peter Clark’s How to Write Short: Word Craft for Fast Times. Primed by the ideas in these books, the article explores the genre of legal blogging through two case studies of legal blog posts in 2014. Finally, the article puts legal blogging into context by addressing its similarities to and differences from traditional legal writing. Legal blogging offers a respite from the formalities of traditional legal writing, but it also brings its own set of expectations and constraints that define the evolving boundaries of this genre.

Social Media Counsel (Employment Posting)

Social Media Counsel (to apply go here)

Leading global consumer products company seeks a Social Media Counsel who will be an integral part of an exciting marketing and sales team, supporting leading consumer brands. 


  • 3-7 years experience 

  • Strong background with advertising and marketing issues, particularly in the social media context 

  • Will need to become familiar with various consumer related regulatory issues affecting the industry 


Competitive with base, bonus and equity components.

The Deep Web and the Darknet: A Look Inside the Internet’s Massive Black Box

Dakota S. Rudesil


James Caverlee


Daniel Sui


The Deep Web and the Darknet: A Look Inside the Internet’s Massive Black Box


Many believe a Google search can identify most of the information available on the Internet on a given subject. But there is an entire online world – a massive one – beyond the reach of Google or any other search engine. Policymakers should take a cue from prosecutors – who just convicted one of its criminal masterminds – and start giving it some attention.

The scale of the Internet’s underworld is immense. The number of non-indexed web sites, known as the Deep Web, is estimated to be 400 to 500 times larger than the surface web of indexed, searchable web sites. And the Deep Web is where the dark side of the Internet flourishes. While there are plenty of law-abiding citizens and well-intentioned individuals (such as journalists, political dissidents, and whistleblowers) who conduct their online activities below the surface, the part of the Deep Web known as the Darknet has become a haven for regulatory evasion, crime, and threats to national security.

This policy brief outlines what the Deep Web and Darknet are, how they are accessed, and why we should care about them. For policymakers, the continuing growth of the Deep Web in general and the accelerated expansion of the Darknet in particular pose new policy challenges. The response to these challenges may have profound implications for civil liberties, national security, and the global economy at large.

I Swear! From Shoptalk to Social Media: The Top Ten National Labor Relations Board Profanity Cases

Christine Neylon O’Brien


I Swear! From Shoptalk to Social Media: The Top Ten National Labor Relations Board Profanity Cases


Waitresses at Hooters got into a swearing match in front of customers over a mandatory bikini competition that was rumored to be rigged. An off duty barista at a New York Starbucks used profanity in a heated conversation with a manager that also took place in the presence of customers. Employees at a Manhattan catering service complained to the director of banquet services about the hostile, degrading, and disrespectful treatment they received from managers. Then, just prior to a National Labor Relations Board (NLRB) election, servers were repeatedly told by their manager to spread out and stop talking to each other. One server posted profane remarks about the manager on his Facebook page while he was on break, including a plea to vote for the union. In other instances, employees profanely commented on social media about their boss’ ineptitude at tax withholding; locked out bargaining unit members made vulgar comments and gestures to those who crossed the picket line; and unionized employees were told not to wear buttons in the presence of customers that contained language that bordered on profanity. All these examples refer to recent unfair labor practice cases that were brought to the NLRB by employees or their unions when employees were terminated for their use of profanity while engaged in concerted activity that was otherwise protected by Section 7 of the National Labor Relations Act (NLRA).

This article curates and analyzes ten recent cases involving employee communication laced with profanity. It informs managers and employees of the rules that the NLRB is currently following in this area, and the key factors that the Board weighs when considering whether conduct loses NLRA protection. The paper summarizes these top ten cases in an informative table, and then outlines why the NLRB or an administrative law judge determined the conduct was protected by the NLRA, and, if so, whether that protection was lost because of the egregiousness of the employee’s misconduct. In many of these cases, the Board found employer rules relating to profanity were overbroad because they unduly infringed upon employees’ Section 7 right to communicate about wages, hours, working conditions or matters of mutual aid and support. Cases involving employee dishonesty during an employer investigation into profane or offensive conduct and/or racial or sexual harassment are compared, and important distinctions are made.

Online Engagement on Equal Terms

Danielle Citron


Online Engagement on Equal Terms


In 2007, when the media started covering the phenomenon of cyber harassment, the public’s reaction was disheartening. Although the abuse often involved threats, defamation, and privacy invasions, commentators dismissed it as “no big deal.” Harassment was viewed as part of the bargain of online engagement. Proposals for legal intervention were met with fierce opposition because law could jeopardize the Internet’s role as a forum for public discourse. Curiously absent from discussions about the Internet’s speech-facilitating role was individuals’ difficulty expressing themselves in the face of online assaults.

No longer is this case. As recent statements by civil liberties groups make clear, it is now uncontroversial to suggest that cyber harassment interferes with expression, even as it is perpetrated via expression. This brief essay, offered as part of the Boston University Law Review Annex’s online symposium on my book Hate Crimes in Cyberspace, explores what happened to change public attitudes towards cyber harassment and the significance of private efforts to combat cyber harassment for our system of free expression

Why Don’t FACA Committees Like Facebook? Social Media, Public Input, and the Federal Advisory Committee Act

Keith Rizzardi


Why Don’t FACA Committees Like Facebook? Social Media, Public Input, and the Federal Advisory Committee Act


The Federal Advisory Committee Act (FACA) ensures public access to the meetings of the many stakeholder and expert groups advising the United States. But the author, an experienced chairman of a federal advisory committee, confronted challenges when the use of social media as a way to enhance public input was proposed. This article considers three simple questions. The first legal question “can FACA committees use social media?” is answered with a “maybe” after studying the statutory terms and case law. The second factual question “do FACA committees use social media?” is answered with a “no” based on actual data. The third policy question “should FACA committees use social media?” is also answered with a no, because direct use of a social media site by the government creates obligations to manage the information received, and because these advisory committees exist primarily to provide expert advice, not as a forum for public comment. Rather than trying to force the advisory committee’s legal procedures to comport with the new electronic era of social media, this article encourages agencies to bypass FACA’s requirements by posting final committee work products on non-governmental social media sites as a way to inform and engage the public. This recommended approach may necessitate changes to a recent Executive Memorandum, but it could also enhance public input into the policy process, and increase the visibility and legitimacy of the FACA committee’s outputs

The ‘New’ New York Times: Free Speech Lawyer in the Age of Google and Twitter

Marvin Ammori


The ‘New’ New York Times:  Free Speech Lawyer in the Age of Google and Twitter

When Ben Lee was at Columbia Law School in the 1990s, he spent three months as a summer associate at the law firm then known as Lord, Day & Lord, which had represented the New York Times in New York Times Co. v. Sullivan. During those months, Lee listened to the firm’s elder partners recount gripping tales of the Sullivan era and depict their role in the epic speech battles that shaped the future of free expression. Hearing these stories, a young Lee dreamed that one day he too would participate in the country’s leading speech battles and have a hand in writing the next chapter in freedom of expression.

When I met with Lee in August 2013, forty-nine years after Sullivan, he was working on freedom of expression as the top lawyer at TwitterTwitter and other Internet platforms have been heralded for creating the “new media,” what Professor Yochai Benkler calls the “networked public sphere,” for enabling billions around the world to publish and read instantly, prompting a world where anyone — you and I included — can be the media simply by breaking, recounting, or spreading news and commentary. Today, freedom of the press means freedom not just for an institutional press but freedom for all of us. The core business functions of Twitter, YouTube, and other platforms turn on expression — no less than the New York Times’s. The lawyers working for these companies have business reasons for supporting free expression. Indeed, all of these companies talk about their businesses in the language of free speech. Google’s official mission is “to organize the world’s information and make it universally accessible and useful.” WordPress.com’s corporate mission is to “democrati[z]e publishing.” Facebook’s is to “give people the power to share and make the world more open and connected.”

Perhaps even more than other Internet platforms, Twitter thinks of itself as a medium for free speech: its former general counsel calls Twitter “the free speech wing of the free speech party,” its CEO calls it the “global town square,” its cofounder set out as a default principle against blocking speech that “[t]he [t]weets [m]ust [f]low,” and the company instituted a “church-state divide” reminiscent of newspapers separating employees engaged in content from those selling advertising. Lee told me, “I don’t know what others think with the phrase ‘town square,’ but I think about free expression cases.”

Had Lee been born fifty years earlier, his dream of influencing the future of free speech likely would have inspired him to take a job representing the New York Times or some other leading newspaper at a law firm like Lord Day. Instead, being born to a different time, Lee followed his dream by first taking a job working on free expression at Google, a company with 100 times the market cap of the New York Times and arguably 100 times the influence. While at Google, he worked on free expression alongside other well-known free speech lawyers, including Alex Macgillivray and Nicole Wong, whose influence has been documented in major news profiles. These lawyers must address difficult and novel cases concerning the speech of hundreds of millions of users. They have grappled with these questions on everything from the Occupy Wall Street movement to the publication of WikiLeaks. They have navigated issues from UK local law enforcement measures to Chinese state censorship. These lawyers have earned lots of praise, with reporters hoping their practices would become the “industry standard” and claiming that Twitter “beta-tested a spine.” Many reporters credited Twitter’s actions to its speech lawyers. Professor Jeffrey Rosen opined that Google’s lawyers and executives “exercise far more power over speech than does the [U.S.] Supreme Court” and called an administrative law case (that I worked on) involving the blocking of Internet speech “a model for the free-speech battles of the future.”