CCR Symposium: In Defense of Self-Defense
As several other symposium participants have pointed out, Danielle Citron’s proposal seeks to enhance some speech by suppressing other speech. A different approach to cyber sex harassment would be to combat the harassing conduct not with legal sanctions, but by enabling and encouraging counter-speech that exposes and criticizes both harassers and their behavior.
In CCR (at 104-06), Citron considers and dismisses the counter-speech approach. The problems that she identifies with this strategy are convincing, but her discussion fails to give full consideration to the various ways that counter-speech may be promising tool to counter cyber sex harassment. I articulate three such reasons below the fold.
First, encouraging counter-speech may (as Citron points out) sustain the life of the attacks, but this might have a positive outcome, because it would expose the harassing conduct to more eyeballs and reveal how concerning a problem it is. My sense is that people need to see the kinds of attacks Citron talks about in detail, especially the 99.9% of the male population who will likely never make or receive such an attack. The reason is that once you do see this kind of stuff, you’ll find it pretty hard to dismiss the issue (I know because someone on the cyberprof listserv sent around a link to some really gruesome misogynistic material that had been aimed at them online, and when I looked at it I realized I had no idea how bad some of this stuff was). Starting a critical public dialogue that shows exactly what is being said online would do much to make people take this problem seriously, pre-empting arguments that the law is overreacting to something trivial. Opponents of Citron’s approach should like this, too; if they’re right that her article overstates the harm of this material, then let’s get it out there and let the public decide. I have a very strong suspicion that social norms would quickly coalesce around the conclusion that this is not a trivial concern.
Second, counter-speech is promising because speech itself can be empowering. Having the law come to your aid is helpful and often necessary, but the value added by exercising self-help in any situation is that it makes the individual feel capable of taking matters into their own hands. Plus, as Citron points out, many of the victims of these attacks feel powerless and defeated by their experience. If there were venues in which recipients of attacks could expose attackers and subject them to the shame they merit, that would likely be a satisfying experience that would leave victims feeling better about the end result.
Finally, I suspect that counter-speech would be effective against the kind of people who practice cyber sex harassment. From what I’ve read in Citron’s work and James Grimmelmann’s “lulz mob” post from yesterday, harassers are, more or less, mean-spirited cowards. They remind me of the people in LA who are boiling cauldrons of rage and aggression—as long as they’re driving along the freeway, safe within the confines of their car, and their targets have no way to respond to them. No one with real character or courage would spend any time at a keyboard anonymously harassing a someone else, and I suspect that anyone who does this would melt if confronted by public shaming (whatever the cyberspace equivalent of that may be).
These two approaches are not, of course, mutually exclusive. The law could take a hard-line against cyber sex harassment and there could also be a variety of online means for victims of attacks to engage in counter-speech to call out and shame attackers. My point in this post has simply been that Citron’s dismissal of counter-speech effectively raises problems with a self-help strategy, but does so at the expense of overlooking its promise.