Category: Cyber Civil Rights


CCR Symposium – The Rhetoric of Free Speech

Danielle Citron presents compelling reasons for applying civil rights laws to online conduct. Without meaning to legitimize the speech/conduct dichotomy, I deliberately choose to use the word “conduct” rather than “speech” to move away from the rhetorical power of labeling all communication as speech. Speech connotes words that are constitutionally protected and devoid of aggression — “just words” — but as Citron’s article makes clear, some online communication is more like a fist in the face than an expression of an idea of public interest. Yet, proposals to curb or regulate online communication are usually met with cries of censorship and ominous warnings that our democratic society is endangered by politically correct fascists. On the contrary, it seems that Internet libertarians are using the rhetoric of free speech to vastly expand existing conceptions of speech to include all manner of previously unprotected communication or conduct, such as the posting of naked pictures of others taken without their consent, death threats, false accusations and outright lies. One of the strengths of Citron’s article is that it calls out such conduct for what it is rather than what some would prefer to call it. Words can and do cause harm and digital words create unique harms due to the unique nature of Internet communication. What happens online unfortunately doesn’t stay online. While posters may be able to play roles that enable them to act more aggressively and distastefully than they would offline (due to the disinhibition effect of disassociative anonymity), their targets must live their daily, offline lives with the painful consequences of what these role playing posters say to and about them.

Another problem with the rhetoric of free speech is that First Amendment doctrine was not shaped with online discourse in mind. For example, time, place and manner restrictions don’t apply to the Internet. A secondary effect of such restrictions of course is that they temper impulsive speech. Not only are physical and temporal barriers missing when it comes to Internet postings, the ease of postings and the acceptability of anonymity encourage a lack of restraint.

Those who use the rhetoric of free speech in the online context pretend that Internet communication is “just like” offline communication for purposes of constitutional protection, ignoring the unique effects of online distribution; yet they turn around and claim different standards or norms apply to Internet communication. The claim that all posts are constitutionally protected “free speech” or that threats are “just words” has an insidious endogenous effect in that it shapes still-developing norms of what is acceptable online discourse. Citron’s article demands that we stop these developing norms before they become too firmly rooted. The question of how we do that is of course complicated and defies easy answers, but that doesn’t mean we shouldn’t try. In another post, I will discuss one way we should try which focuses on the role (and responsibility) of websites in shaping those norms.


CCR Symposium — Speech and (In)equality

Professor Citron’s Cyber Civil Rights makes several important contributions to our understanding of the relationship between speech and equality. By comprehensively documenting the use of cyberharassment to target traditionally subordinated groups so that members of such groups pay a higher price for their internet presence, she powerfully challenges the traditional narrative of the internet as a primarily egalitarian institution. She thoughtfully describes how the internet’s great communicative strengths — e.g., its ability to aggregate large numbers of speakers as well as disaggregate speakers’ offline identities from their online voices — also magnify its capacity to empower certain socially destructive behaviors. And, like both Charles Lawrence and Catharine MacKinnon in other contexts, she demonstrates how cyberharassment not only undermines equality values but also frustrates free expression by silencing certain voices.

After demonstrating the harms of cyberharassment, she then persuasively explains why the regulation of threatening or defamatory cyberspeech should pose no greater First Amendment hurdles than the regulation of threatening or defamatory speech in other settings. But, of course, those First Amendment hurdles are far from insignificant. For example, while the article suggests that much of cyberharassment fits on the “conduct” end of the “speech/conduct” divide, I’m among those who remain skeptical that such a divide is a terribly productive way to solve First Amendment problems. Rather than attempting to understand cyberharassment as conduct unprotected by the First Amendment, I would instead characterize it (along with threats, defamation, and other forms of harassment) as speech that nonetheless may be regulated when it poses substantial harms without significantly furthering traditional First Amendment values.

The article succeeds tremendously in its effort to “begin the conversation” about a cyber civil rights agenda. Like so many others, I’m very interested in what’s next. While the paper has convinced me that cyberharassment inflicts significant civil rights injuries, I don’t share its optimism that traditional civil rights statutes — such as Title VII or 42 U.S.C. section 1981 — are particularly well-suited to capture and address those harms. I was, however, fascinated by the paper’s discussion of the Violence Against Women Act’s prohibition on the use of telecommunications devices to deliver certain anonymous threats or harassment. Maybe that provision can provide a helpful model for ensuring that pending legislation (like the Matthew Shepard Act) remains attentive to the various forms that civil rights injuries can take in the 21st Century.


CCR Symposium: The Right to Remain Anonymous Matters

Orin Kerr says he was brought in to be a mild dissenter. I fear I may have been set up to be the pig at the garden party.

So let me start by saying that Danielle Citron’s Cyber Civil Rights is a wonderful paper. It is right about many things, although I’d be prepared to wonder whether the expression-action distinction might not reflect something true, real, and valuable, or whether the current balance between libel and the ‘wild west’ of unregulated speech is really so bad. But never mind all that: for present purposes let’s stipulate that Cyber Civil Rights is right about all its facts — including (as I indeed have no doubt she is right) about the terrible harms being wreaked online by evil people at the expense of innocent victims who are (wildly) disproportionately female and minorities. And let’s further stipulate that the article is right about its novel and exciting statutory arguments concerning how existing civil rights law might be used to deal with that – stuff I had fun thinking about and enjoyed teaching too.

Nevertheless, I have deep, deep problems with the paper’s proposed remedy — because there’s something critical that the paper leaves out.

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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.

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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.


CCR Symposium: More on the “Civil Rights” Category

To follow up my earlier post on whether the problems of online threats and harassment are civil rights problems, I wanted to offer a hypo.

Imagine a blogger located in Berkeley, California, has a blog with a comment thread. One day, the blogger ends up banning a particular commenter (who indicates that he is a conservative white male) for being obnoxious. A few hours later, the blogger receives an anonymous e-mail from a reader who is pretty angry with the banning. After contesting the banning, the anonymous e-mailer adds this threat:

It appears to me that you have internalized a recently established feminine paradigm that seeks to excuse supposed adults from all address not amounting to deference. Not that you’d care, but seem to be something of a pussy. You are so aggressive in unilaterally redefining venerable norms of adulthood that I find myself hoping that you get mugged, just so you can appreciate what real pain is. Incidentally, Berkeley can be a dangerous place after dark.

Love and kisses.

Are threats like this part of a broader civil rights issue? Does it depend on the gender, race, and/or sexual orientation of the recipient blogger?

In this case, it was a real e-mail, and I happen to know that the recipient was a straight white male (as the recipient was me — this happened about 3 weeks ago, when I was in Berkeley for a talk at Boalt). Does that change the nature of the conduct or the proper legal response?


CCR Symposium: Legal Responses to Online Harassment

Danielle Citron’s article does a great job of reframing the question of online anonymous speech into an appropriate broader context. James has already posted about this, so I won’t reiterate his excellent points. The question that it leaves us with – how the law might be adjusted to incorporate these concerns – is a tricky one, however. It is particularly challenging because anonymity both shields anonymous attacks, and protects targeted minorities. Similarly, exposing anonymous harassers can both chill their speech, and protect the speech of their targets (and their targets’ communities), who might otherwise be silenced by threats. I can think of three broad options for a legal response – leave the system as it is, make individual speakers easier to find, or increase liability against conduit websites. Each of these solutions carries its own risks, and none seems like a perfect response…

First, we can retain the system as we have it now. By this I mean websites and most ISPs are not required to store identifying information about posters, and targets of online harassment must file John Doe subpoenas to uncover the identity of their attacker (assuming this is possible) before proceeding with a lawsuit. This system provides uncertain protection for the targets of online harassment, meaning that women and minority groups will continue to find themselves threatened and potentially muzzled online. As Citron notes, this environment can lead to very real structural effects, where not merely the targets, but everyone who identifies with the targets may find the Internet an increasingly inhospitable place.

Further, it provides inconsistent protection for anonymous speech online. Those who are aware that they are engaging in illegal behavior can take steps to ensure that their identity is virtually impossible to determine. If an egregious defender takes steps to shield himself, he will likely not be held liable. Thus, targets of online harassment can often uncover only those the posters who didn’t think their speech was problematic in the first place, or simply didn’t understand that they could be tracked. The worst violators get away free. As more and more lawsuits demonstrate that posters who don’t take such precautions can be caught, the distance between those who are caught and those who escape will grow greater. Already, John Doe lawsuits tend to uncover and punish the middling offenders rather than the most extreme. As a result, the current regime doesn’t provide consistent protection for anonymous speech, or for the targets on online harassment.

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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.

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CCR Symposium: A Mildly Skeptical Take

I suspect I may have been invited to this symposium to give a mildly dissenting view, and I won’t disappoint. In particular, I want to question whether it makes sense to construe these problems as “civil rights” issues, and what is gained from that.

It seems to me that a lot of the issues Danielle discusses in her very interesting paper are byproducts of how anonymity can unleash criminal behavior in online environments, especially in the form of threats and harassment. These problems are very real, and I find them very troubling. But I’m not entirely sure where the line is between seeing these problems as questions for the traditional mechanisms of torts and criminal law versus seeing them as “civil rights” issues.

It seems correct to me that a disproportionate amount of this behavior is targeted at groups traditionally protected by the civil rights laws (especially women). But no group is immune from it; this sort of behavior is disturbingly common online even outside traditionally targeted groups. Given that, I’m not entirely sure if it works to frame this as a civil rights issue, as well as what is to be gained from doing so. Or at least, my instinct is to be skeptical about that categorization; perhaps this symposium will lead me to change my mind.


CCR Symposium: The Civil Rights Agenda

For me, the most important part of Danielle Citron’s paper is right there in the title: the way she frames online harassment specifically as a civil rights problem. It’s one of those moves that’s so seemingly simple that the reader may be tempted to say yeah, yeah, so what? But then Citron shows what, directly and carefully. Online harassment isn’t just about individual bullies and victims–though it’s about that, too. It’s also about pervasive patterns of abuse, directed at vulnerable groups, that effectively deprive them of the ability to participate in important social institutions.

Another commentator at this symposium, Ann Bartow, has argued that some legal scholarship has “too much doctrine, and not enough dead bodies.” Cyber Civil Rights has plenty of dead bodies, especially the virtual effigies of women targeted by anonymous individuals–or worse, anonymous mobs–for online abuse. The paper opens with the story of Kathy Sierra, threatened with rape and strangulation, including the delightful comment, “The only thing Kathy has to offer me is that noose in her neck size.” The footnotes of the first part of Cyber Civil Rights give a grim tour through some some of online harassment’s greatest and most appalling hits.

Then–and this is the point of Bartow’s argument that scholars need to be willing to point out where the bodies are buried–Citron uses these unsettling stories to make a familiar doctrinal story strange. In the Internet law world, we’re accustomed to talking about harassment as an issue that combines two of our favorite Internet hobbyhorses: anonymity and Section 230‘s immunity for intermediaries. The result is that many serious, important debates about responses to harassment have run into the well-worn ruts of very old arguments (on Internet time, that is) about the legal standard for unmasking anonymous individuals online and about how much to make intermediaries liable for harmful content.

Shifting from there to civil rights frame, however, allows Citron to point out important but often-ignored features of harassment online, ones that suggest different doctrinal moves. Civil rights discourse helps us see the victims of harassment as members of a consistently subordinated group, rather than as just unlucky individuals. It helps us see the mob dynamics at work in these simulacra of lynchings, rather than thinking about each insult in isolation. It reminds us that there’s a long tradition of using law creatively to prevent personal bias from becoming societal discrimination.

Indeed, when you go back to the online harassment cases after reading Cyber Civil Rights, it’s striking how many of them are really civil rights cases. True, few of them buy into that frame, and few have provided much redress for victims, but they’re directly engaged with classic civil rights issues. Take Noah v. AOL, a 2003 case dismissing on section 230 grounds a lawsuit against AOL for doing nothing about anti-Muslim comments its chat rooms like “well allah can suck my dick you peice of ass” and “SMELLY TOWEL HEADS,” or, more recently, the Craigslist and cases about discriminatory online housing ads. The law in these cases is all about the ins and outs of interpreting section 230, but the facts are all about religious intolerance and racial segregation. Cyber Civil Rights suggests that when we think about cross-cutting issues in Internet law–such as anonymity or intermediary liability–we might do well to pause before diving into the technical specifics of the communications at stake and instead ask, “Why do we want to know?”