CCR Symposium: Maybe we can’t make Cyberspace better than meet space, but why allow it to be worse?

Way back when I was in law school, I worked on litigation aimed at protesters who tried to prevent women from entering health facilities where abortions were made available. The judges involved had to balance the protesters’ speech rights against the rights of women to travel where they wanted to go, and as I remember it, convincing courts that is was a civil rights issue was tricky. Danielle Citron needed to make a very strong case for why online actions can compromise civil rights, and as both Frank Pasquale and James Grimmelmann have observed in their symposium posts here, she succeeds brilliantly, but see Orin Kerr’s skepticism.

Many participatory sectors of the Internet are dominated by aggressive bullies, nasty haters and monetizing opportunists. It’s hard to tell whether they constitute a numeric majority, but the geography of the Internet allows a small number of people to scorch vast swaths of earth with surprisingly little effort. There is currently no such thing as the “safe spaces on the web where those with unpopular views can exchange ideas without fear of retribution” that Frank Pasquale calls for. Not even here. The folks running this symposium decided not to facilitate comments on CCR related posts here at Concurring Opinions, but they have no control over the conversations that take place other places, which may be intractably linked to this blog via hyperlinks and search engine results. I’m doubtful that the architecture of the Internet can be changed to provide the benefits of connectivity without simultaneously facilitating engagement or intervention by bad actors.

To segue back to reproductive freedom, one of the most trenchant things I’ve seen written about the right to abortion is that most women who oppose it believe there should be three classes of exceptions: 1. The life of the mother; 2. Cases of rape and incest; and 3. Them. Seriously, I’ve listened to people explain that abortion is murder unless the 15 year old asking for one is their daughter, and then it is perfectly justified. In the course of doing legal work for reproductive services providers I’ve seen a number of cases where women who literally stood outside of clinics picketing and shouting at people later asked for abortions for themselves or their children. As you might imagine, reproductive rights clinics fear that these women want to set them up for something bad down the road, such as a lawsuit, or to gain entry to their offices to do violence to the people inside, so these situations receive a fair amount of scrutiny. The egregious level of hypocrisy is stunning.

So it is with some civil libertarians and the Internet. Anonymity and unfettered speech are terrific up until they are the ones being challenged or attacked. See also. For another classic example, go here and note that the ACLU has a locked Wikipedia page because apparently too many editors were writing things the ACLU didn’t like, so the civil rights organization found a way to silence its wikicritics. See also. Wikipedia is far less solicitous of (for example) feminists who are public intellectuals. Pornography proselytizers constantly edit and re-edit their entries, filling them with misinformation. When the feminists request locked pages, they are not only denied, but mocked and criticized just for asking. It isn’t just marginalized groups that are victimized online, but they are disproportionately targeted, and may have fewer options or resources to minimize the harms or fight back.

As to whether the law can effectively address online civil rights violations, Citron is appropriately cautious. The culture of the Internet simply replicates a lot of real space phenomena that plague subordinated groups. Read the e-mail contained in Orin’s post here. Try to think of the last time you saw a virulent expression of anger, online or off, that didn’t feminize or homosexualize the target. Using gendered insults is one of the many ways that gender binaries are culturally enforced everywhere, but the situation worsens dramatically on the Internet, for reasons Citron explains.

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