Lawrence Lessig’s other court case


A dramatic update on Professor Lawrence Lessig’s other court case written by his friend John Heilemann appears in New York Metro magazine this week. And this is a battle that critics as well as supporters are praying will end in victory for the lawyer and scholar this time.

Lessig is representing John Hardwicke, who like himself is a former pupil of the American Boychoir School (now the Columbus Boychoir School) in Princeton, New Jersey. Hardwicke claims he was abused by multiple staff including the music director. The school argued it should be immune from such negligence lawsuits, and a trial court had agreed. Incredibly, the school even claimed the sex between now fugitive choir director and Hardwicke was consensual. The case was heard by the state’s supreme court, and in what reads like a movie script, the evidence turned on Lessig himself.

In front of the state supreme court, Lessig tore up the rule book and confronted years of private torment by revealing that he had been abused himself at the school.

“It was the perversion of this music director . . . to believe that sexual abuse was part of producing a wonderful boychoir,” he disclosed to the court. Lessig told the New York Metrothat he knew that this was what the director believed, because the director himself had disclosed this to Lessig at the school.

Lessig had kept the abuse even from his parents. But the moral dilemma at the heart of the article is even more shocking. Heilemann also discloses that Lessig protected the alleged paedophile Hanson for years after leaving the school. Lessig maintained relations with Hanson, whose life he saved, he claims, and even adopted a “supportive, protective role” towards the alleged pervert. This is an extraordinary and unsettling detail. Aged 17, Lessig had persuaded the board to appoint him as an alumni representative. In Lessig’s mind, it was for the best that the school continue with Hanson undisturbed; the music director had promised Lessig that he was now behaving himself.

“I was keeping the institution together. I really wanted it to succeed. And the picture of the institution succeeding with Hanson continuing as choir director was really what I thought should happen,” Lessig told Heilemann. As the latter points out, the teenage Lessig had an exaggerated sense of his own powers.

The abuse and the guilt had subsequently destroyed Lessig’s personal relationships.

“I remember throwing tantrums, as I recognized how this thing had intruded in my life.”

But by introducing his own recollections at the appeals stage, Lessig has adopted a risky strategy. The Supreme Court must decide the case on the basis of evidence that’s on the record from earlier stages, and it’s considered unethical to introduce evidence at the appellate stage that isn’t already on the record. And the place for personal recollections is the witness stand. The Court must rule on a technicality about the institution’s legal status, not that the director was a serial abuser.

A more experienced litigator might have avoided such elementary errors.And with the courtyet to rule, it’s hard to predict how a profile of the celebrity prosecutor will influence the bench at this stage. A more circumspect figure may have wanted to delay it until after the verdict has been delivered.

The personal and the political

But with a man as complex as Lessig, the personal and the political are inextricably entwined. Painfully shy in public – his unease is evident – he nevertheless throws himself into the spotlight with an obsessive zeal. Nor does he appear comfortable with the rough and tumble of public discourse.

He views critiques of his position as treachery, and insulates himself with like-minded fans: around 70 websites replicate his weblog and a chain of repeaters affirms those views. Comment threads at his weblog which take a critical turn have been lost, with the Professor citing technical reasons. In a tantrum in February this year, he accused this reporter of knowingly publishing lies in a humorous June 2003 article – a serious accusation – although the facts in question were not being contested. It’s hard to escape the conclusion that what he objected to was the impertinence of a gentle satire; criticism was permissable from some critics, but not others – and the choice would be determined by Lessig himself.

Unfortunately, the world doesn’t work like this. One cannot choose one’s critics. We cannotcontrol what other’s write about us, and today’s critic may be tomorrow’s biographer and obituarist.

Lessig has shown an ability to clutch defeat from the jaws of victory before. Writer Stephen Manes walked away the comfortable winner from a public spat last year that he laced with personal invective against the Professor. Manes argued that copyright is in good health, and so Lessig’s work is futile. Rather than conceding the main point – that the principle of copyright is good, and copyright does work successfully – and instead concentrating on the many boundary cases that inconvenience us, Lessig offered a tedious line-by-line rebuttalwhich only a diehard fan could read to the end.

(Just one example: offered the chance to hit the ball out of the park, over the origins of Disney’s Steamboat Willie, Lessig fluffed, despite having the facts in his favor. And the long, snowball answer chastised Manes for not using Google (“If Mr. Manes was really doing his research by using Google…), as if Google is quantatively or qualitatively an arbiter of truth, before implying Manes was the front for a conspiracy. The only conceivable audience for such advocacy is Lessig’s own audience of bloggers, not the wider public.

And Lessig has rued how he lost the Eldred case at the Supreme Court objecting to congress’ right to extend the terms of copyright – a defeat that set the reform cause back years. He offered a swot’s technical argument, he admitted, rather than passionately citing examples of real harm that the Court wanted to hear.

When nationwide fame arrived last year it was via a question on the popular US TV Quiz Show Jeopardy, reminding the audience of yet another indiscretion:

Nationwide fame: Lessig on Jeopardy

Lessig vowed to cut back on his globetrotting last week – his schedule means he spends hardly any time at home with his 20-month old son – and begged for someone to take the “leadership” of the Creative Commons project. But it’s hard to imagine a character so driven by the need to put himself at the center of events opting for a lower public profile.

But win or lose, however, here’s to a Larry Lessig more at ease with himself and more at ease with the world. 

“The whole premise of the article is that my address book is a mess. That it needs to be cleaned up. Who would think that the ‘mess’ is mine when it is in fact people who had multiple email addresses?” he emailed us, rather weakly, in March. You can judge for yourselves by reading the original. Facetious, yes. Lies, no.

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