CCR Symposium: A Behavioral Argument for Stronger Protections
One response I’ve heard from time to time from online libertarians and speech advocates — people who would probably be skeptical of Danielle Citron’s argument, and skeptical in general of online regulation or lawsuits — is that people like Kathy Sierra need to just “get over it.” That is, that she should be able to tell the difference between real threats and silly pranks, and that any reasonable person would realize that statements like “I am going to rape and kill you” over the internet are just hot air and bluster (and thus, they do not merit legal response).
There is an interesting potential behavioral critique of that line of argument. One reason why Kathy Sierrra death threats are so insidious — and why “get over it” is inappropriate as a response — relates to the psychological phenomenon known as anchoring.
There is a series of fascinating behavioral studies showing that people tend to base their assessment of questions on anchors — that is, suggestions that the answer might be X or Y. This is the case even when people affirmatively know that the suggested anchors are false. Or in other words, when people are told information, even when they know that information to be false, it still enters into their calculation of the overall mix of information.
For instance, in one study (Quattrone 1984), researchers asked a group of people to estimate the temperature in San Francisco. But first, they asked one set of respondents to answer the question, is the temperature in San Francisco 558 degrees? And everyone said no, of course. We all know that to be false.
But the fascinating part is that the people who were asked that first question – who had to consider, or at least put their mind to the issue of whether the temperature in San Francisco was 558 degrees – gave higher answers to the second question, their estimate of the average temperature in San Francisco. This was true even though the anchor was obviously false. As Hastie and Dawes note, “even preposterously extreme anchor values are not ignored.”
Similarly, in another experiment (Tversky & Kahneman 1974), researchers spun a wheel, and literally generated a random number right in front of the respondent. This was very very obviously random, and thus not related to any substantive issue. And yet when researchers asked respondents how many countries in Africa are U.N. members, the answers correlated to the number spun on the wheel.
These and other similar tests show that the human mind is generally not capable of completely separating out and walling off information. Even if a person absolutely knows some piece of information to be false or to be irrelevant, it still enters into the total mix of information (to borrow a term from securities law) of her thought process.
This is why the rape and death threats are so insidious. They insert an extreme anchor value, intended to poison the total mix of information. Even if it is true that Kathy Sierra knows that these threats are bluster and hot air, they still enter the calculus for a host of very important questions (like “am I safe?”). And really, what could skew the calculus on those questions more than threats of rape and death? That is the reason why these attackers don’t simply say “I don’t like your argument.” That would be disagreement, but it would be in the normal expected range, and thus would not have the intense skewing effect of death threats. Death threats, on the other hand, are calculated to uniquely affect a person’s reaction, and behavioral studies tell us that they are likely to have some of that effect even if the target rationally knows that the threats are probably not serious. (The same may apply to other extreme anchoring speech; cf. Richard Delgado on racist speech.)
This of course raises the question of how to respond. There is a whole school of soft paternalism – Sunstein, Thaler, et al – who argue for a set of rules that subtly nudges people towards making better decisions. I would suggest that, in addition, hard paternalism may be required here. The damage done by the targeted extreme anchoring evident in Kathy Sierra death threats cannot simply be negated by saying “get over it” or “it’s just bluster.”
Given the behavioral realities, I think that Danielle’s protective arguments make a lot of sense.