{"id":54747,"date":"2016-09-30T11:27:00","date_gmt":"2016-09-30T16:27:00","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/supreme\/legal-commentary\/writing-term-papers-for-hire-innocent-protected-speech.html"},"modified":"2016-09-30T11:27:00","modified_gmt":"2016-09-30T16:27:00","slug":"writing-term-papers-for-hire-innocent-protected-speech","status":"publish","type":"supreme","link":"https:\/\/supreme.findlaw.com\/legal-commentary\/writing-term-papers-for-hire-innocent-protected-speech.html","title":{"rendered":"Writing Term Papers for Hire: Innocent Protected Speech?"},"content":{"rendered":"\n<div class=\"wp-container-core-columns-is-layout-9d6595d7  fl-block-columns fl-sectionWithSidebar fl-container fl-flex fl-flex-wrap fl-gap30\">\n    \n    <div class=\"fl-page-articles   fl-block-column fl-section-main fl-section-main-full-width\">\n        <div class=\"yui-g\" id=\"leftcol-module\">\n      <!-- Right Line of Links Section -->\n      <!-- BEGIN PICTURE INSERTION -->\n      <!-- BEGIN TITLE AND AUTHOR INSERTION -->\n      <table>\n        <tr>\n\n          <td width=\"100\" rowspan=\"3\" class=\"wiauthor\"><a href=\"\/legal-commentary\/sherry-colb-archive\"><img decoding=\"async\" src=\"https://supreme.findlaw.com/static/f/images\/writ\/sherry.colb.jpg\" border=\"0\"><\/a><\/td>\n          <td class=\"wititle\"><h1>Writing Term Papers for Hire:  Innocent Protected Speech?<\/h1>\n<\/td>\n        <\/tr>\n        <tr>\n          <td class=\"wiauthor\"><a href=\"\/legal-commentary\/sherry-colb-archive\" class=\"graybold\"><h2>By SHERRY F. COLB <\/h2><br><\/a><\/td>\n        <\/tr>\n        <tr>\n          <td class=\"widate\">Wednesday, Dec. 10, 2008<\/td>\n        <\/tr>\n      <\/table>\n<span class=\"smalltext\">\n\n\n<p>In October, author Nick Mamatas published <a rel=\"nofollow noopener\" href=\"http:\/\/www.thesmartset.com\/article\/article10100801.aspx\">an article<\/a> in <em>The Smart Set<\/em> describing his  earlier career as a term-paper-writer-for-hire.  He worked through brokers. The  brokers collected money from student clients and then passed along assignments  to Mamatas, who would complete said assignments for a share of the fee. Mamatas claims now \u2013 both in his article and  in an interview with Bob Garfield on the WNYC radio show &#8220;On the Media&#8221; \u2013 that  his work as a student ghost-writer was not only lawful and legitimate but also  protected by the First Amendment. In  this column, I will evaluate his claims.<span class=\"smalltext\">\n  <!-- START TABLE FOR RELATED -->\n<\/span><\/p>\n<\/span>\n<div id=\"writthreetwenty\">\n<script language=\"JavaScript\" type=\"text\/javascript\">dart_call(\"300x250\", \"ptile=2\", 0); <\/script>\n\n<\/div>\n\n<p><strong>Using &#8220;Model&#8221; Papers  as a Template, versus Cheating<\/strong><\/p>\n<p>When Mamatas wrote term papers, he did not officially  compose them for submission to professors as the work of enrolled  students. Instead, Mamatas wrote the  words &#8220;model paper&#8221; on them and, in theory, was providing the papers simply as  a prototype, on the basis of which students might learn to compose their  own. For lawyers working at a firm,  prototypes are familiar business. Rather  than waste time reinventing the wheel with each new complaint, brief, or  contract, an attorney can ensure that her work corresponds to the format and  style of prior law-firm work by looking at a &#8220;model.&#8221; There is nothing wrong with that.<\/p>\n<p>The difference, however, between prototypes of the sort that  lawyers use and the &#8220;model&#8221; term papers composed by writers like Mamatas is  that the former are actual prototypes whereas the latter are thinly-veiled instances  of cheating. That is, no one involved in  the term-paper brokerage business \u2013 whether the student purchasing the paper,  the &#8220;broker,&#8221; or the writer \u2013 truly believes that the purpose of the written  work is simply to serve as an example of what a term-paper looks like. The &#8220;model&#8221; language is, in other words, a  sham.<\/p>\n<p>Mamatas confessed in his interview with Bob Garfield that when  one of his student clients did not treat him well, he would send a copy of the  paper he had written to the client&#8217;s professor.  Such a retaliatory move would seem peculiar if Mamatas were not  confident that clients, in fact, handed in the papers that he had composed. An attorney angry at a colleague, for  example, would gain nothing from sending opposing counsel the firm&#8217;s prototype  of a complaint.<\/p>\n<p>Mamatas adds that he was frequently given very tight  deadlines for producing his work, generally at the end of a semester (when  papers are actually <em>due<\/em>, rather than  when a student might be prepared to begin writing a paper and wish to look at a  prototype to see how such things are written).  Finally, Mamatas acknowledges that most of his clients were &#8220;dumb&#8221; and  &#8220;should not be in college&#8221; and that he therefore made it a point not to write  the papers too well, for fear of arousing suspicion in the professor. It is unclear how producing a poorly-written  &#8220;model&#8221; term paper would provide useful instruction to a marginal student.<\/p>\n<p><strong>Who&#8217;s the Real Cheater?<\/strong><\/p>\n<p>Nick Mamatas, as a bright person, quite clearly realized  that he was facilitating his clients&#8217; cheating in school. Yet he appears unwilling to take ethical  responsibility for doing so. He  reiterated, in the radio interview, that he was simply writing &#8220;model&#8221; papers  and that if his clients chose to hand them in as their own work, then it was  they \u2013 and not he \u2013 who were acting improperly.  Might there be there any merit to his protestations of innocence?<\/p>\n<p>There might be, under some circumstances. If, for example, Mamatas honestly believed at  the time that the people for whom he had written the &#8220;model&#8221; papers were using  them as a prototype, then he might not bear responsibility for their ultimate  use in cheating. The prices Mamatas  successfully charged for his work, however \u2013 up to $100 per page \u2013 made  apparent that he was doing more than simply sharing his writings for students&#8217;  edification. Even outstanding textbooks  cost much less than $100 per page. <\/p>\n<p>Mamatas was thus directly profiting from the desperation of  students who did not feel up to the task of doing their own homework. The amount of money, accordingly, put him on  notice of what they planned to do with his work.<\/p>\n<p><strong>The  Term-Paper Writer as Accessory or Accomplice<\/strong><\/p>\n<p>Consider an analogy.  Escort services advertise in the yellow pages of most cities. It is more or less obvious from the  advertisements that what the &#8220;escorts&#8221; provide is sex for money and that the  business is therefore, in reality, a prostitution enterprise. Escort services will contest this  characterization, claiming that their escorts are paid simply to provide a  companion for the evening (for example, to accompany the shy businessman to a  work function). If the client and the  companion decide, on their own, to have sex, argues the escort service, then  that is their (private) decision, completely separate from the business.<\/p>\n<p>This claim, like that of Mamatas, might be plausible if the  prices of &#8220;escorts&#8221; did not reflect a premium (for sexual acts) and if \u2013 most  importantly \u2013 those escorts who did not decide, &#8220;on their own,&#8221; to have sex  with clients were nonetheless retained on the payroll and given as much work as  other escorts. To the extent that the  service, by contrast, charged high rates and retained only those escorts who  consistently had sexual relations with clients, however, the service&#8217;s attempts  to &#8220;wash its hands&#8221; of responsibility for the sex would likely prove  unsuccessful in a court of law.<\/p>\n<p>Similarly, imagine that your friend visits you and says she  needs your gun, for which she will pay you $10,000, explaining that her father  is about to rewrite his will in the next hour to disinherit her and she cannot  allow this to happen. Your decision to  give her the weapon might implicate you in her subsequent violence against her  father. This is true even if you say, as  you take her $10,000, &#8220;I am just giving you the gun for self-protection.&#8221; But now imagine another scenario. A different friend asks for your gun,  explaining that she is worried that the killer who has been featured on the  news might break into her home because her lock is broken. If she subsequently and unforeseeably turns  the gun on a family member, her crime may not be legitimately attributed to you  as an accomplice.<\/p>\n<p>Particularly when a person is being paid a premium for a  presumptively illegitimate enterprise (writing a term paper on the  specifications of a client&#8217;s professor), it would seem appropriate to hold the  writer accountable for the student&#8217;s cheating.  To the extent that the First Amendment does not extend to the behavior of  the cheater himself, it should fail similarly to extend to the conduct of the  cheater&#8217;s knowing facilitator. Because  the student in the scenario is desperate and focused on the fear that he will otherwise  fail a course, moreover, one might say that the ghostwriter-for-hire \u2013 who  experiences no such desperation \u2013 bears greater responsibility for cheating  than his client. The writer may also be  older than a young student, again suggesting that from a moral standpoint, the  writer may bear added responsibility. <\/p>\n<p>More than the person who shouts &#8220;fire&#8221; in a crowded theater,  the term-paper ghostwriter is like the person who hands matches and gasoline to  the arsonist in the crowded theater. <\/p>\n<p><strong>The First Amendment  Does Not Protect Term-Paper-Ghostwriters or Their Clients<\/strong><\/p>\n<p>Some readers might wonder whether submitting another  person&#8217;s work as one&#8217;s own is protected by the First Amendment. The answer is no, in part because the <a href=\"https:\/\/constitution.findlaw.com\/article1\/annotation39.html\" rel=\"noopener\">recognition  of copyright and patent laws<\/a> that directly regulate &#8220;theft&#8221; of intellectual  property finds expression in the very Constitution in which the First Amendment  appears. <\/p>\n<p>Though  copyright law ordinarily protects <u>writers<\/u> against theft of their work,  the inclusion of copyright references in the Constitution establishes the  principle that the First Amendment does not recoil from the regulation of one  person&#8217;s misrepresenting another person&#8217;s work as his own, a principle that  readily translates to the academic setting.  The alternative would be that in a state university, necessarily bound  by the dictates of the Constitution, a student would have the right to hand in plagiarized  papers without penalty. Such a rule  would pose a profound threat to the integrity of academic institutions.<\/p>\n\n<p>But the ghostwriter is perhaps one step removed from the  cheater. It is at least possible, in  theory, that one might not know how his or her work was being used. We would not, after all, want to chill an  innocent writer&#8217;s desire to compose a &#8220;model&#8221; term paper about Plato&#8217;s Republic  and The Matrix for a student to read and enjoy, would we? Perhaps not, but if there is a demand for such  term papers \u2013 independent of that of cheaters who are intending to submit  others&#8217; papers as their own \u2013 then the ghostwriter can demonstrate as much in  his own defense. If he cannot (which I  suspect he cannot), then the world will survive without his for-hire musings.<\/p>\n<hr size=\"1\">\n<p class=\"authorfoot\">\n\n<!-- BEGIN AUTHORS FOOTNOTE -->\n<a name=\"bio\"><\/a>\n<i>Sherry F. Colb is Professor of Law and Charles Evans Hughes Scholar at Cornell Law School.  Her book, <i><em>When Sex Counts: Making Babies and Making Law<\/em><\/i>, is currently available on Amazon. <\/i>\n\n<br><br>\n<\/p>\n\n\n\n    <\/div><div class=\"was-this-helpful\">\n    <div\n            class=\"was-this-helpful__question-container\"\n            aria-labelledby=\"was-this-helpful__question\"\n            role=\"group\"\n    >\n        <span\n                id=\"was-this-helpful__question\"\n                class=\"was-this-helpful__question fl-text-lg-bold\"\n        >Was this helpful?<\/span>\n        <button\n                class=\"was-this-helpful__button fl-text-sm\"\n                aria-label=\"Yes\"\n                value=\"yes\"\n        >\n            <span class=\"was-this-helpful__button-text fl-text-bold\">Yes<\/span>\n            <i class=\"was-this-helpful__button-icon\">\n                <svg width=\"22\" height=\"22\" viewBox=\"0 0 22 22\" fill=\"none\" xmlns=\"http:\/\/www.w3.org\/2000\/svg\">\n                    <g id=\"thumbs-up\" clip-path=\"url(#clip0_604_3418)\">\n                        <path id=\"Vector\"\n                              d=\"M6 21H3C2.46957 21 1.96086 20.7893 1.58579 20.4142C1.21071 20.0391 1 19.5304 1 19V12C1 11.4696 1.21071 10.9609 1.58579 10.5858C1.96086 10.2107 2.46957 10 3 10H6M13 8V4C13 3.20435 12.6839 2.44129 12.1213 1.87868C11.5587 1.31607 10.7956 1 10 1L6 10V21H17.28C17.7623 21.0055 18.2304 20.8364 18.5979 20.524C18.9654 20.2116 19.2077 19.7769 19.28 19.3L20.66 10.3C20.7035 10.0134 20.6842 9.72068 20.6033 9.44225C20.5225 9.16382 20.3821 8.90629 20.1919 8.68751C20.0016 8.46873 19.7661 8.29393 19.5016 8.17522C19.2371 8.0565 18.9499 7.99672 18.66 8H13Z\"\n                              stroke=\"#666666\" stroke-width=\"2\" stroke-linecap=\"round\"\n                              stroke-linejoin=\"round\"><\/path>\n                    <\/g>\n                    <defs>\n                        <clipPath id=\"clip0_604_3418\">\n                            <rect width=\"22\" height=\"22\" fill=\"white\"><\/rect>\n                        <\/clipPath>\n                    <\/defs>\n                <\/svg>\n            <\/i>\n        <\/button>\n        <button\n                class=\"was-this-helpful__button fl-text-sm\"\n                aria-label=\"No\"\n                value=\"no\"\n        >\n            <span class=\"was-this-helpful__button-text fl-text-bold\">No<\/span>\n            <i class=\"was-this-helpful__button-icon\">\n                <svg width=\"22\" height=\"22\" viewBox=\"0 0 22 22\" fill=\"none\" xmlns=\"http:\/\/www.w3.org\/2000\/svg\">\n                    <g id=\"thumbs-down\" clip-path=\"url(#clip0_604_3423)\">\n                        <path id=\"Vector\"\n                              d=\"M16 0.999995H18.67C19.236 0.989986 19.7859 1.18813 20.2154 1.55681C20.645 1.9255 20.9242 2.43905 21 3V10C20.9242 10.5609 20.645 11.0745 20.2154 11.4432C19.7859 11.8119 19.236 12.01 18.67 12H16M9.00003 14V18C9.00003 18.7956 9.3161 19.5587 9.87871 20.1213C10.4413 20.6839 11.2044 21 12 21L16 12V0.999995H4.72003C4.2377 0.994543 3.76965 1.16359 3.40212 1.47599C3.0346 1.78839 2.79235 2.22309 2.72003 2.7L1.34003 11.7C1.29652 11.9866 1.31586 12.2793 1.39669 12.5577C1.47753 12.8362 1.61793 13.0937 1.80817 13.3125C1.99842 13.5313 2.23395 13.7061 2.49846 13.8248C2.76297 13.9435 3.05012 14.0033 3.34003 14H9.00003Z\"\n                              stroke=\"#666666\" stroke-width=\"2\" stroke-linecap=\"round\" stroke-linejoin=\"round\"\/>\n                    <\/g>\n                    <defs>\n                        <clipPath id=\"clip0_604_3423\">\n                            <rect width=\"22\" height=\"22\" fill=\"white\"\/>\n                        <\/clipPath>\n                    <\/defs>\n                <\/svg>\n            <\/i>\n        <\/button>\n    <\/div>\n    <span class=\"was-this-helpful__taken-action fl-text-sm-bold\"><\/span>\n    <div class=\"was-this-helpful__feedback-container\">\n        <div class=\"was-this-helpful__choose-option-message\" role=\"status\">\n            <p class=\"was-this-helpful__choose-option-message-text\"><\/p>\n        <\/div>\n        <form class=\"was-this-helpful__feedback-form\">\n            <div class=\"was-this-helpful__feedback was-this-helpful__feedback--positive\">\n                <fieldset>\n                    <legend class=\"was-this-helpful__feedback-form-title\" tabindex=\"0\">Why was this helpful?<\/legend>\n                    <div class=\"fl-radio-button-field fl-flex was-this-helpful__feedback-form-title\">\n                        <input\n                                id=\"was-this-helpful__radio-button--understandable\"\n                                class=\"fl-radio-button-field-input\"\n                                type=\"radio\"\n                                name=\"positive-feedback\"\n                                value=\"Easy to understand\"\n                        >\n                        <label\n                                class=\"fl-radio-button-field-label fl-text-sm was-this-helpful__radio-label\"\n                                for=\"was-this-helpful__radio-button--understandable\"\n                        >Easy to understand<\/label>\n                    <\/div>\n                    <div class=\"fl-radio-button-field fl-flex was-this-helpful__feedback-form-title\">\n                        <input\n                                id=\"was-this-helpful__radio-button--solved-problem\"\n                                class=\"fl-radio-button-field-input\"\n                                type=\"radio\"\n                                name=\"positive-feedback\"\n                                value=\"Solved my problem\"\n                        >\n                        <label\n                                class=\"fl-radio-button-field-label fl-text-sm was-this-helpful__radio-label\"\n                                for=\"was-this-helpful__radio-button--solved-problem\"\n                        >Solved my problem<\/label>\n                    <\/div>\n                    <div class=\"fl-radio-button-field fl-flex was-this-helpful__feedback-form-title\">\n                        <input\n                                id=\"was-this-helpful__radio-button--other\"\n                                class=\"fl-radio-button-field-input\"\n                                type=\"radio\"\n                                name=\"positive-feedback\"\n                                value=\"Other\"\n                        >\n                        <label\n                                class=\"fl-radio-button-field-label fl-text-sm was-this-helpful__radio-label\"\n                                for=\"was-this-helpful__radio-button--other\"\n                        >Other<\/label>\n                    <\/div>\n                <\/fieldset>\n            <\/div>\n            <div class=\"was-this-helpful__feedback was-this-helpful__feedback--negative\">\n                <fieldset>\n                    <legend class=\"was-this-helpful__feedback-form-title\" tabindex=\"0\">Why was this not helpful?<\/legend>\n                    <div class=\"was-this-helpful__choose-option-message\" role=\"status\">\n                        <p class=\"was-this-helpful__choose-option-message-text\"><\/p>\n                    <\/div>\n                    <div class=\"fl-radio-button-field fl-flex was-this-helpful__feedback-form-title\">\n                        <input\n                                id=\"was-this-helpful__radio-button--missing-info\"\n                                class=\"fl-radio-button-field-input\"\n                                type=\"radio\"\n                                name=\"negative-feedback\"\n                                value=\"Missing Information\"\n                        >\n                        <label\n                                class=\"fl-radio-button-field-label fl-text-sm was-this-helpful__radio-label\"\n                                for=\"was-this-helpful__radio-button--missing-info\"\n                        >Missing the information I need<\/label>\n                    <\/div>\n                    <div class=\"fl-radio-button-field fl-flex was-this-helpful__feedback-form-title\">\n                        <input\n                                id=\"was-this-helpful__radio-button--complicated\"\n                                class=\"fl-radio-button-field-input\"\n                                type=\"radio\"\n                                name=\"negative-feedback\"\n                                value=\"Too complicated\"\n                        >\n                        <label\n                                class=\"fl-radio-button-field-label fl-text-sm was-this-helpful__radio-label\"\n                                for=\"was-this-helpful__radio-button--complicated\"\n                        >Too complicated \/ too many steps<\/label>\n                    <\/div>\n                    <div class=\"fl-radio-button-field fl-flex was-this-helpful__feedback-form-title\">\n                        <input\n                                id=\"was-this-helpful__radio-button--dated\"\n                                class=\"fl-radio-button-field-input\"\n                                type=\"radio\"\n                                name=\"negative-feedback\"\n                                value=\"Out of date\"\n                        >\n                        <label\n                                class=\"fl-radio-button-field-label fl-text-sm was-this-helpful__radio-label\"\n                                for=\"was-this-helpful__radio-button--dated\"\n                        >Out of date<\/label>\n                    <\/div>\n                    <div class=\"fl-radio-button-field fl-flex was-this-helpful__feedback-form-title\">\n                        <input\n                                id=\"was-this-helpful__radio-button--negative-other\"\n                                class=\"fl-radio-button-field-input\"\n                                type=\"radio\"\n                                name=\"negative-feedback\"\n                                value=\"Other\"\n                        >\n                        <label\n                                class=\"fl-radio-button-field-label fl-text-sm was-this-helpful__radio-label\"\n                                for=\"was-this-helpful__radio-button--negative-other\"\n                        >Other<\/label>\n                    <\/div>\n                <\/fieldset>\n            <\/div>\n            <div class=\"was-this-helpful__form-buttons-container\">\n                <button\n                    class=\"was-this-helpful__feedback-button was-this-helpful__feedback-button--positive at-feedback-submit fl-button secondary\"\n                    type=\"submit\"\n                >\n                    <span class=\"fl-button-content\">Submit<\/span>\n                    <i\n                        class=\"fa fa-angle-right medium\"\n                        aria-hidden=\"true\"\n                    ><\/i>\n                <\/button>\n                <button\n                    class=\"was-this-helpful__feedback-button was-this-helpful__feedback-button--cancel fl-button primary disabled\"\n                    type=\"reset\"\n                >\n                    <span class=\"fl-button-content\">Cancel<\/span>\n                    <i\n                        class=\"fa fa-times-circle medium\"\n                        aria-hidden=\"true\"\n                    ><\/i>\n                <\/button>\n            <\/div>\n        <\/form>\n    <\/div>\n    <div class=\"was-this-helpful__thank-you-message\" role=\"status\">\n        <i class=\"was-this-helpful__thank-you-message-icon fa fa-check\"><\/i>\n        <p class=\"was-this-helpful__thank-you-message-text\" aria-live=\"polite\"><\/p>\n    <\/div>\n<\/div>\n\n\n    <\/div>\n    \n    <div class=\"fl-block-column fl-section-sidebar\">\n        \n    <\/div>\n<\/div>","protected":false},"parent":49876,"menu_order":0,"template":"app\/Http\/Controllers\/Templates\/ArticlePageController.php","meta":{"_acf_changed":false,"_stopmodifiedupdate":false,"_modified_date":"","_cloudinary_featured_overwrite":false},"class_list":["post-54747","supreme","type-supreme","status-publish","hentry"],"acf":[],"_links":{"self":[{"href":"https:\/\/supreme.findlaw.com\/legal-api\/wp-json\/wp\/v2\/supreme\/54747","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/supreme.findlaw.com\/legal-api\/wp-json\/wp\/v2\/supreme"}],"about":[{"href":"https:\/\/supreme.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/supreme"}],"up":[{"embeddable":true,"href":"https:\/\/supreme.findlaw.com\/legal-api\/wp-json\/wp\/v2\/supreme\/49876"}],"wp:attachment":[{"href":"https:\/\/supreme.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=54747"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}