Daniel Solove

Professor Solove gives us the poop on David Lat

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David didn’t expect me to get the scoop. No doubt, he’s been reading the reviews of Dan Solove’s new book, The Future of Reputation Gossip, Rumor, and Privacy on the Internet.
I downloaded a free copy of Chapter 1.
Don’t know if Lat has read this review by PajamasMedia’s culture critic, David Freeman, who writes:

Shame and gossip and questions of personal reputation have been with us for millennia. In our time, however, they’ve gone electronic. The resulting change in the way the world communicates with itself is as significant to speech as anything since the invention of moveable type.

David probably noticed that Frank Pasquale posted a mini-review of the book he calls “a fun read that also manages to be a scholarly work on cyberlaw.”

Solove draws us in with the old classics of humiliation–South Korea’s infamous “dog poop girl,” Jessica Cutler’s embarrassed paramour, and the Star Wars kid. Each sparked an avalanche of comedy, critical comment, spoofs. . . . and, like hope at the bottom of Pandora’s box, a tiny bit of sympathy as we wonder: will we be next?
Pace Andy Warhol, that’s not likely, but Solove uses the titillating stories to explore a deeper question: do we have any right to control true information about ourselves? Or influence the way we are portrayed? If somebody posts a vicious lie, they can be liable for defamation. But what about disclosure of private facts–should we have any right to stop that?

Okay–titillating stories–we’d buy the book to read more of that, but when do we get to read about David Lat?
“The parts about David have not been excerpted or discussed elsewhere,” teased Solove, in an exclusive interview with Above the Law. “It basically tells his story – then the rest of the chapter launches into a discussion on the good and bad aspects of anonymous blogging! In the same chapter I also discuss the legal protections on anonymity, Wikipedia, the trade-off between anonymity and accountability, how anonymous bloggers can be unmasked if not careful, and the clash between privacy and free speech.”
“If only I could get the poop on David Lat, I’d be able to write a preview for the book,” I cajoled, “It’s a tough audience! Gimme something to placate the fanboys.”
Okay, after the jump…the excerpt about David Lat…

Article III Groupie wasn’t the typical groupie, obsessed with rock stars. Instead, her fixation was on federal judges. Named after Article III of the U.S. Constitution, which establishes the powers of the federal judiciary, Article III Groupie was a young law school graduate who created the blog Underneath Their Robes. Article III Groupie blogged about “scrumptious tidbits of news and gossip about federal judges.”52 She also dished out gossip about law clerks, recent law school graduates who assisted judges for yearlong stints. As Article III Groupie described her blog:

This weblog, “Underneath Their Robes” (“UTR”), reflects Article III Groupie’s interest in, and obsession with, the federal judiciary. UTR is a combination of People, US Weekly, Page Six, The National Enquirer, and Tigerbeat, focused not on vacuous movie stars or fatuous teen idols, but on federal judges. Article III judges are legal celebrities, the “rock stars” of the legal profession’s upper echelons. This weblog is a source of news, gossip, and colorful commentary about these judicial superstars!

According to her self-description, Article III groupie graduated from a top law school and worked for “a large law firm in a major city, where she now toils in obscurity.” She described herself as a “diva” and as a “federal judicial starf**ker.”
Little more was revealed about the elusive Article III Groupie. She said that in “her free time, she consoles herself through the overconsumption of luxury goods” and that her “goal in life is to become a federal judicial diva.” Article III Groupie’s identity was shrouded in secrecy. The only picture of the mysterious Article III Groupie was a small hand-drawn sketch.

Article III Groupie’s electronic face

Who was this Sex-in-the-City-type diva? How bizarre that she would be starstruck by the nerdy world of the federal judiciary! How exciting that someone—anyone—was even interested in this lonely corner of the world in the same way that groupies were into rock stars! Suffice it to say that Article III Groupie’s blog was quite quirky and entertaining. She seduced the online legal world with her exuberance and audacity. Who else but Article III Groupie would dare to hold “hottie” contests for male and female judges?53 Who else had the moxie to use such catty phrases as “judicial divas,” “bench-slappery,” “litigatrix,” “bodacious babes of the bench,” “judicial hotties” and “judicial prima donnas”?
Article III Groupie’s gossipy blog was a big hit. It attracted an impressive array of readers, including federal judges themselves. It was U.S. Appeals Court Judge Alex Kozinski who anointed Article III Groupie with the nick name A3G. And U.S. Court of Appeals Judge Richard Posner admitted that he enjoyed the site: “It’s occasionally a little vulgar, but this is America in 2005.”54
One day, rather abruptly, A3G decided to unmask herself. The opportunity came when Jeff Toobin of the New Yorker wanted to interview A3G in person. A3G agreed to meet him for lunch. When Toobin saw A3G, his jaw dropped.
“So you’re a guy?” Toobin gasped.
Yes, A3G was a man. His name was David Lat. Lat was a graduate of Yale Law School who had clerked for a conservative federal judge on the U.S. Court of Appeals for the 9th Circuit. I knew Lat personally; he was a classmate of mine at Yale Law School. But I had no idea Lat was A3G until I read it in Toobin’s New Yorker article. To make matters more interesting, Lat worked as a federal prosecutor in Newark, New Jersey.55 He regularly appeared in court before federal judges.
When Toobin’s article revealed to the world A3G’s true identity, it sent shockwaves throughout the legal community. This amazing disrobing quickly drew the attention of the mainstream media, and Lat’s story was featured in scores of newspaper articles.
Lat had decided to be anonymous as a way of protecting his job while maintaining such a salacious blog. In an interview, Lat explained: “The law is a fairly conservative profession, and being known as a legal gossip-monger would not be good for my professional advancement. It also wouldn’t help me in my lifelong ambition to become an Article III judge. Issuing snarky commentary about sitting federal judges won’t put me on a fast track to the federal bench.”56 Beyond the inherent difficulties of juggling the blog with his law career, Lat regularly appeared in federal court representing the United States government. Without anonymity, the very judges he was calling “your honor” in the courtroom would know he was referring to them as “hotties” in the blogosphere. It was difficult to imagine how he could continue to represent the federal government in court.
Moreover, Lat’s anonymity provided a sense of mystery to the blog. Now that mystery had vanished. The blog just wouldn’t be the same without Lat’s unique alter ego, A3G. One commentator wrote in a post about A3G at another legal blog: “This is terrible. I can’t read that site knowing the author is a man.”57 Anonymity had allowed Lat to assume a new identity, a persona he carefully designed to be as distinct from himself as possible. One reader of his blog who knew him stated in an interview in the New York Times: “David was on this one side a hard-core Federalist Society type, who clerked for an extremely hard-right judge, and was way to the right of most of his associates. And he had this whole other side of flamboyant, theater-watching, Oscarwatching, shoe-loving, litigatrix. How do these two sides get reconciled?”58
Anonymity allows people to escape accountability for their words, but this comes at a cost—the loss of authorship credit under one’s real name. Lat wanted to have the praise and attention his female alter ego A3G was getting. He increasingly grew frustrated that he was toiling over the blog but getting little recognition for it. He wanted the attention the blog was attracting to be associated with his name. But the irony was that in his quest to get credit for the blog, he risked destroying the blog and even his career.
After revealing his identity, Lat braced himself for the firestorm that would ensue. After his identity was announced, his supervisors in the United States Attorney’s office asked him to stop blogging immediately. Lat quickly locked his blog down, making it inaccessible to the public without a special password. Near the end of a stressful week, in which he wondered whether he would be fired, Lat met with his boss. He would be able to keep his job—on the assumption that Underneath Their Robes would be kept underneath its password.
But Lat’s story has a happy ending. A few weeks later, he left the U.S. Attorney’s office to accept a job blogging full-time at Wonkette, the political gossip blog that had publicized Jessica Cutler’s Washingtonienne blog. He later went on to launch a new legal gossip blog, Above the Law. Lat now blogs under his real name.

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