Writing Term Papers for Hire: Innocent Protected Speech?

By SHERRY F. COLB
Wednesday, Dec. 10, 2008

In October, author Nick Mamatas published an article in The Smart Set 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 – both in his article and in an interview with Bob Garfield on the WNYC radio show "On the Media" – 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.

Using "Model" Papers as a Template, versus Cheating

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 "model paper" 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 "model." There is nothing wrong with that.

The difference, however, between prototypes of the sort that lawyers use and the "model" 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 – whether the student purchasing the paper, the "broker," or the writer – truly believes that the purpose of the written work is simply to serve as an example of what a term-paper looks like. The "model" language is, in other words, a sham.

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'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's prototype of a complaint.

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 due, 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 "dumb" and "should not be in college" 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 "model" term paper would provide useful instruction to a marginal student.

Who's the Real Cheater?

Nick Mamatas, as a bright person, quite clearly realized that he was facilitating his clients' 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 "model" papers and that if his clients chose to hand them in as their own work, then it was they – and not he – who were acting improperly. Might there be there any merit to his protestations of innocence?

There might be, under some circumstances. If, for example, Mamatas honestly believed at the time that the people for whom he had written the "model" 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 – up to $100 per page – made apparent that he was doing more than simply sharing his writings for students' edification. Even outstanding textbooks cost much less than $100 per page.

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.

The Term-Paper Writer as Accessory or Accomplice

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 "escorts" 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.

This claim, like that of Mamatas, might be plausible if the prices of "escorts" did not reflect a premium (for sexual acts) and if – most importantly – those escorts who did not decide, "on their own," 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's attempts to "wash its hands" of responsibility for the sex would likely prove unsuccessful in a court of law.

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, "I am just giving you the gun for self-protection." 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.

Particularly when a person is being paid a premium for a presumptively illegitimate enterprise (writing a term paper on the specifications of a client's professor), it would seem appropriate to hold the writer accountable for the student'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'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 – who experiences no such desperation – 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.

More than the person who shouts "fire" in a crowded theater, the term-paper ghostwriter is like the person who hands matches and gasoline to the arsonist in the crowded theater.

The First Amendment Does Not Protect Term-Paper-Ghostwriters or Their Clients

Some readers might wonder whether submitting another person's work as one's own is protected by the First Amendment. The answer is no, in part because the recognition of copyright and patent laws that directly regulate "theft" of intellectual property finds expression in the very Constitution in which the First Amendment appears.

Though copyright law ordinarily protects writers 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's misrepresenting another person'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.

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's desire to compose a "model" term paper about Plato'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 – independent of that of cheaters who are intending to submit others' papers as their own – 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.


Sherry F. Colb is Professor of Law and Charles Evans Hughes Scholar at Cornell Law School. Her book, When Sex Counts: Making Babies and Making Law, is currently available on Amazon.