CCR Symposium: Two Stories About Law’s Expressive Value
For the most part, Danielle Citron’s work on cyber harassment has me convinced. Both of her essential points—that online harassment of women is a serious problem, and that it can and should be countered using extant categories of civil rights (and other bodies of) law—seem exactly right. Because I basically agree with Citron’s core thesis, I am going use my posts in this symposium to focus on several ancillary points that are raised by this important work.
This post examines Citron’s invocation of law’s expressive dimension. In a point introduced in Cyber Civil Rights and amplified in Law’s Expressive Value in Combating Cyber Gender Harassment, Citron argues that one of the values of situating cyber gender harassment within a civil rights agenda is that it will efface the perception that the harm inflicted by online harassment is trivial.
This optimistic vision of law’s power to shape social norms possesses intuitive appeal, but it tells only half the story about law’s expressive value. Below the fold, I discuss in more detail an alternative account of how law interacts with social norms that complicates (though does not necessarily contradict) Citron’s thesis.
Citron’s argument depends on an optimistic story about the expressive value of law. The argument runs like this: when the state marshals legal resources to punish conduct, that sends a message that the conduct is serious and wrong. As Citron points out, there are lots of instances in which this optimistic story about law’s expressive value explains the emergence of social concern about a previously underappreciated harm. One familiar example is sexual harassment law, which created a consciousness about a serious workplace harm that had been previously dismissed as harmless flirting or a male office entitlement.
But this optimistic story is not the only story about the expressive value of law. Bringing law’s force to bear on otherwise tolerated conduct may not generate social opprobrium about the regulated conduct, but may instead generate disdain for the law itself. One salient example of the pessimistic story of law’s expressive value took place (and is ongoing) in cyberspace. It’s the familiar story of online filesharing, and the attempts of law and industry to convince the public that unauthorized reproduction of copyrighted works online is wrongful (not just illegal, which is an easier point about which there is consensus). Industry has won the majority of the legal battles it has joined since the filesharing wars began, but the result has not been a social consensus in the wrongfulness of online filesharing that the optimistic story of law’s expressive value would predict. Just the contrary. These efforts often generated disdain for content industries that pursued aggressive enforcement agendas, and created sympathy for the users who engaged in the illegal conduct.
Is there any reason to think that the optimistic or pessimistic story of law’s expressive value would prevail in the context of cyber gender harassment? It’s hard to say. On one hand, the filesharing wars suggest that traditional legal frameworks map poorly onto internet norms. If this is the case, then the belief (however wrong) that cyber harassment is trivial may be unusually sticky, and enforcing extant legal sanctions against online harassment would only cause the law to be perceived as trivial as well. On the other hand, online norms may tolerate unauthorized filesharing because it seems like a violation of a possibly outdated commercial regulation (malum prohibitum) while cyber sex harassment inflicts the kind of harm that any decent person should recognize as socially unacceptable (malum in se).
I hope the latter, optimistic story about the expressive value of law is the correct one with respect to cyber harassment, and that Citron’s thesis turns out to be right. I don’t know enough about this topic to make a confident prediction either way, so I seek only to advance the much more modest point that there are two stories about law’s expressive value. Sometimes aggressive enforcement convinces us that the regulated conduct is wrong; sometimes aggressive enforcement convinces us that the law is overly broad and the state overly harsh. And I think Citron’s claims about law’s expressive value in deterring cyber sex harassment would be even more convincing if they reflected this duality and provided an account of why the optimistic rather than the pessimistic version of the account should prevail.