Legal Commentary

Judging a Person Based on a Single Forwarded Personal E-Mail

By Orin Kerr

To my mind, the most troubling aspect of the Harvard e-mail controversy is how many people feel comfortable publicly judging someone based on a single forwarded private e-mail. I can see judging a person based on a law review article they wrote, or an op-ed they penned, or public speech they made. All of these forms of speech are freestanding statements that can be judged on their own. In contrast, I think we need to be cautious about judging a person from a single private e-mail they wrote at some point in the past that was forwarded on to a wider audience without their consent. 

The problem is that individual e-mails generally are not freestanding. They are snippets of an ongoing conversation, and that conversation normally will have a context. As outsiders, though, we just don?t know the context. We don?t know the ongoing conversation; we don?t know the person?s background; we don?t know what assumptions were being made that were a part of the e-mail we?re seeing. We don?t know what other e-mails were sent that might clarify or apologize for an earlier statement. We don?t know the sender?s state of mind. And when it comes to an e-mail sent right after dinner, we also don?t know how much they had to drink at dinner that night. All we have is that one snippet that is the single e-mail.

I think we should be cautious about judging a person in that setting. It doesn?t mean we shouldn?t do it at all, of course. But I think it does counsel caution. Especially so when we?re trying to construe statements that could be read in different ways based on the context. 

Take the e-mail in the Harvard controversy. The most controversial sentence is the second sentence in the e-mail. The e-mail begins:

I just hate leaving things where I feel I misstated my position. I absolutely do not rule out the possibility that African Americans are, on average, genetically predisposed to be less intelligent. 

We?re at a disadvantage right away in trying to understand the point of that sentence. There was an earlier conversation, but we don?t know who said what. But I think that context would tell us what part of the sentence the author was trying to emphasize, and therefore what point the author was trying to make. 

Consider two possibilities. In the first case, the author was criticized in the earlier conversation for believing that there are in fact genetic differences. In that case, the sentence was very likely intended to emphasize her belief about genetic predispositions. The point of the sentence was to emphasize the second part of the sentence: ?the possibility that African Americans are, on average, genetically predisposed to be less intelligent.? In the second case, the author was criticized in the earlier conversation for categorically ruling out the possibility. In that case, the sentence was likely intended to point out intellectual open-mindedness. The point of the sentence was to emphasize the first part of the sentence, that she does ?not rule out the possibility.? 

Whatever you think of the e-mail as a whole, I think it?s only fair to recognize that the intended message of that controversial statement hinges in considerable part on the conversation that came before it. That conversation was the context. But none of us were there except for the sender and the initial recipient. Given that, perhaps a little caution is warranted before judging a person based on one single forwarded e-mail. 

Full post as published by The Volokh Conspiracy on April 30, 2010 (boomark / email).