Cyber Gender Harassment: “Skanks of NYC”
Dan, Kaimi, and Elizabeth have offered some terrific insights on the issues raised by the court’s unmasking of the “Skanks of NYC” blogger. Kaimi’s post “Cyber Civil Rights vs Privacy in the ‘Skanks in NYC’ case” in particular did a superb job capturing the issue as discrimination. I write here to follow up on issues related to the case that folks have discussed with me.
Some have asked whether this case warrants treatment as a cyber civil rights issue since it “is just a girl cat fight.” To be sure, women can deprive other women of their right to be free of unequal treatment on the basis of their gender. But the larger concern is, for me, convincing skeptics to see the blog attacks on Ms. Cohen as more than just an interpersonal disagreement between two women, something that tort law can handily address on its own, but rather as gender discrimination. Tort law would not reach the harm experienced by Ms. Cohen, women, and society due to the blog’s interference with her right to equal treatment. It would not address the stigma that Ms. Cohen experienced a a result of the blog’s message that she had worth only as a sex object. Much like sexual harassment in the workplace, the blog suggested that Ms. Cohen constitutes an object of sexual derision, not a person worthy of respect. Moreover, they interfered with Ms. Cohen’s right to work as an equal. According to Ms. Cohen, potential employers asked her about the blog, which quite possibly deterred them and others from hiring her. In a world filled with aspiring models, employers might chose to work with someone who comes with less baggage, even if they do not believe the postings a wit. And the blog postings harm women as a group and a society as a whole by entrenching gender hierarchy in cyberspace. Whether current law would support such a claim is certainly in dispute, but such a law could be crafted. Such a law would play an important expressive role–it would change the social meaning of such harassment of women.
Indeed, as privacy scholar Ian Kerr suggested, maybe the media’s attention to the case can be attributed to its leering interest in a “battle” between two beautiful women? Maybe coverage of the issue reflects a deeper misogyny: the story has attracted so much attention because it produces an image of women as female wrestlers of sorts, battling it out in their bikinis?
A commentator on Dan’s posting asked whether labeling Ms. Cohen “a liar, ho, and skank” could support a defamation claim, at least under the Doe v. Cahill summary judgment standard to warrant unmasking the defendant. Courts have upheld defamation awards in cases where defendants’ online postings asserted that plaintiffs were “liars.” The allegations also might have supported an intentional infliction of emotional distress claim. As my colleague Greg Young wisely noted to me though, even a rigorous standard like the one in Doe v. Cahill (which I support much like Dan) gives leeway to judges to balance values and risks imposing costs on speech.