When We Say “Stop Cyberbullying,” What Are Our Goals?

Being laid up for a week with a nasty tonsil infection gave me the opportunity to catch up on some Sunday NY Times crosswords (Side Note: I refuse to accept that we’re now spelling the word “epilogue” as “epilog,” Mr. Will Shortz), some nerdy SciFi television and some law review articles on cyberharassment. Many esteemed colleagues, not to mention countless law students, are writing about this or related topics in some way. There is indeed much to talk about. But, what does not get as much play are the assumptions upon which much of the results-oriented scholarship is based.

The face-to-face and online harassment of young people, of any sexual orientation, of any gender, of any race, of any socio-economic status, is a bad thing. For the moment, let us put aside those who cling to the antiquated “this is all part of growing up” meme and assume that we all think harassing, attacking and emotionally abusing young people is bad. But, when we are asked to evaluate potential ameliorative responses — harsh punishments, tolerance education, increasing the role of government and a host of other possibilities — it is not enough to simply assume that a problem exists. In order to compare one response against another, we must first engage in a discussion about the values we’re trying to protect over and above solving the problem.

For example, let us assume for the moment that cyberharassment raises only two issues: the speech rights of harassers and the speech rights of victims. If we have to factor into any solution concerns about these stakeholders’ free speech, must we weigh them equally? No. But, then how do we weigh them? Does it matter whose rights? Sure. Those mean harassing kids don’t deserve their rights, only victims do. But, we all know what that kind of reasoning implies. Does it matter that in our example both the perpetrators and victims are students? Do minors even have speech rights (ask Justice Thomas for a resounding “Pfft. Surely you jest!“).

Do we have an adequate basis for finding an answer other than our own personal prejudices? I think we do, but our Internet speech law misses the mark. The legislative history of Section 230 of the Communications Decency Act (the immunity clause) and judicial opinions in cases like Reno v. ACLU, Ashcroft v. ACLU and Zeran v. AmericaOnline suggest that we determine what to value based on our vision of the Internet user as a modern day “pamphleteer” who can reach out “to a world-wide audience,” and do so “anonymous[ly].” A person like that in an environment like that would value individual autonomy and autonomy-based free speech values more than anything else, devaluing other First Amendment values. That vision of the Internet user and his online experience, however, is simply incorrect. Anonymity as a technical matter does not really exist and social networking platforms like Facebook are making anonymity a thing of the past. And, being a pamphleteer that can reach anyone is a little difficult when all content goes through and can be arranged and censored by intermediaries. This Internet user with this online experience would not only be concerned with individual autonomy above all other things. He would be concerned with his reputation, which can be irreparably damaged by online defamation and misbehavior. And, he would be concerned with getting his voice out there, especially since he is completely dependent upon third parties for access.

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5 Responses

  1. I think you’re mixing up two different, grantedly related, concepts:

    1) Free speech vs. reputation

    This is a classic libel law issue – where is the line between harsh, wrong, but *legal* criticism, and something outside the First Amendment?

    2) Internet differences and myths – we are not all equal, there’s a tiny elite of A-listers who get heard, intermediaries abound, and people who say otherwise are often cruel hucksters.

    I sympathize with both points. But it’s also rather well-trod ground, with long established positions staked out.

  2. Ari Waldman says:

    Thank you for your comment, Seth, but with all due respect, I think you missed the point. I’m not talking about the line between legal criticism and “something outside the first amendment.” Nor am I talking about the fact that intermediaries exist or whatever a “tiny elite” means. If those issues are well-trod, that’s great. But, my post was referring to how we make judgments that one right is more important than another right. Do we have a mechanism other than just saying, “hey, this one’s cooler.”

  3. What I was trying to do was give more common categorical examples of the points I viewed you as making. So when you say:

    “how we make judgments that one right is more important than another right. Do we have a mechanism other than just saying, “hey, this one’s cooler””

    Isn’t this the same theoretical issue as how far libel law should reach, i.e. “what is libel?”. What mechanism do we have for saying something should be considered libel, rather than not? Are we just saying “hey, this one’s cooler”? If not, can we apply that methodology?

    This issue is affected by one’s model of the Internet, which feeds into Section 230 in very profound way (a very long topic in itself).

  4. St. John Smythe says:

    A few quibbles.

    First, I do not think it is correct to say “Anonymity as a technical matter does not really exist.” Focusing on the architectural reality of today’s Internet, it might be fair to say that the veneer of anonymity remains the norm, and that true anonymity has become both uncommon and costly. What I mean by this is that most online discourse is anonymous on a surface level — the participants’ true identities are not immediately known or knowable. True, a determined plainiff can destroy this kind of anonymity through a pair of subpoenas, but that kind of unmasking is both rare and expensive. Moreover, applications like Tor make it possible for speakers to achieve an even greater degree of anonymity that even a well-resourced plaintiff cannot pierce. Those tools are not easy to employ, and are not in widespread use, but they exist nonetheless.

    Second, I am not convinced that the current body of Internet speech law focuses exclusively on the speaker’s autonomy. Current law does not require ISPs, for instance, to notify subscribers about or defend them against hostile subpoenas, even though such a rule would serve the autonomy value you describe. Combined with the “effects” test for personal jurisdiction announced in Calder, current law makes it relatively easy for aggreived individuals to hale speakers into a hostile forum. That feature of current law suggests to me that we are concerned not only with autonomy, but also with accountability. It may be sensible to argue that these two values should be balanced differently, but that strikes me as a far cry from saying one of the two values is not already part of the legal calculus.

  5. Paul Horwitz says:

    Ari, I think the goal you set here is a worthy one, but by the end of the post I was unsure that you had met it. Also, even if you had clearly zeroed in on a relevant value, that would not be the end of the inquiry: in order to “compare one response against another,” it’s not enough to identify the end-point value you’re trying to achieve, but one must also compare the institutional capacity of the actors involved in enforcing that value, the costs and benefits of choosing one institutional response rather than another, the systemic costs to doctrine across the board of the particular response you opt for, and so on. One can’t just ask whether, assuming the only things at issue are the speech rights of harassers and the speech or dignitary rights of victims, one is more important than the other; we have to engage in a genuine comparative analysis, including institutional comparison, about the effects of adopting particular rules in this area.

    Also, I appreciate your setting aside for purposes of argument the view that this is all part of growing up. But why then describe it as “antiquated?” If you’re going to assume something arguendo, I don’t see what you gain by criticizing those who hold other views at the same time, especially because you’ve just said that you’re going to put those arguments to one side rather than engage with them. It’s like politely closing the door on someone, then letting fly with an insult just before the door shuts.