Some Reading Recommendations on Gamergate and Online Abuse

One silver lining to the increased attention that Gamergate has received is that a lot of worthwhile pieces have been written about online abuse, particularly as it targets women and other marginalized groups. I learned a lot from this piece by Amanda Hess detailing a conversation with an FBI agent about why it’s so hard to prosecute people who make threats and otherwise use the Internet illegally. Particularly striking to me was the FBI agent’s comment about the volume of work:

“It was never a matter of not caring . . . the volume of work coming in every day was absolutely staggering. We had to do triage, almost as if we were in a war zone, deciding which patients to treat first.”

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What I Read Last Week

A few recent pieces I recommend:

  • Danielle Teller & Astro Teller, How American Parenting is Killing the American Marriage: Teller & Teller offer a provocative interpretation of the quasi-religion status parenting has gained in American society in recent years. They argue that treating parenthood as the most important thing in life is bad for children (we might be raising a generation of narcissists) and bad for parents (couples lose sight of their own relationship when children always come first).
  • Catherine Buni & Soraya Chemaly, The Unsafety Net: How Social Media Turned Against Women: This piece provides a comprehensive and compelling survey of the disproportionate amount of negative treatment women receive on social media, ranging from sexist and disparaging comments to threats of violence. One of the most important points is the idea that free speech interests are not served when a significant portion of the population is subject to a substantial and sometimes prohibitive tax on speech. That is, the so-called “free speech absolutist” position is actually incoherent. Free speech absolutism just means a preference for the status quo quantity of speech and distribution of speakers — not a dedication to creating an environment where everyone is actually free to speak.

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Teller & Teller: Parenthood as Religion

I somehow missed this thought-provoking piece by physician Danielle Teller and Google X head Astro Teller until a friend sent it to me recently. It’s certainly worth a read, regardless whether you agree. The way we think about parenthood and children governs the choices we make about the scope of myriad laws, from funding for public education to parental leave. An excerpt:

Sometime between when we were children and when we had children of our own, parenthood became a religion in America. As with many religions, complete unthinking devotion is required from its practitioners. Nothing in life is allowed to be more important than our children, and we must never speak a disloyal word about our relationships with our offspring. Children always come first. We accept this premise so reflexively today that we forget that it was not always so.

There are doubtless benefits that come from elevating parenthood to the status of a religion, but there are obvious pitfalls as well. Parents who do not feel free to express their feelings honestly are less likely to resolve problems at home. Children who are raised to believe that they are the center of the universe have a tough time when their special status erodes as they approach adulthood. Most troubling of all, couples who live entirely child-centric lives can lose touch with one another to the point where they have nothing left to say to one another when the kids leave home.

New Huffington Post Column on Marriage Equality: “Lost Rights Cause Harm Each Day”

My new Huffington Post column on the Supreme Court’s decision not to hear five same-sex marriage cases is up. I explain why Justice Ginsburg is wrong, and there is a “need to rush” to reach full marriage equality in all fifty states.

From my piece:

When the Supreme Court stayed the decision striking down the ban on same-sex marriage in Utah, over 1300 same-sex couples had already married in Utah. These already-married couples litigated to have their rights recognized, and Judge Dale Kimball held that those rights should receive recognition. “Legal uncertainties and lost rights cause harm each day,” he wrote.

It’s also worth thinking about what might happen if a Republican presidential candidate wins in 2016. I am not sure that those who think there is “no rush” now will still agree if that comes to pass.

What I Read Last Week

A few selections from the past week or so:

  • This report summarizes a study on the interaction between ability to obtain an abortion and domestic abuse. “[W]e found that the incidents of domestic violence by the man involved in the pregnancy declined among woman had the abortion but stayed steady when she carried the pregnancy to term. This indicates that being unable to have the abortion tethered women to violent men, while women who have the abortion were more able to escape abusive relationships.”


  • A poignant remembrance of Maria Fernandes, who worked three shifts at three different Dunkin Donuts to make ends meet, then tragically died in her car while napping between shifts. “She dreamed of working two jobs, not three. She dreamed of sleeping, really sleeping, for six or seven hours at a stretch. . . . And she took pains to help anyone who needed it, regularly paying for coffee and doughnuts for a homeless man, even when she fell behind on her bills. (He showed up at her funeral this month, to pay his respects.)”


  • I already noted this piece on the value of legal scholarship by Danielle Citron and Robin West, but for anyone who missed it, it’s worth a read. “Cost-benefit analysis now is woven into laws and regulations. Much of the analytic power of this legal academic movement has become conventional wisdom, which itself is now being re-thought and challenged by a new wave of scholars. Critical legal scholarship, decried for thirty years for its lack of utility, has inspired novel interpretations of seemingly settled doctrine by arguing that law is far less determinate than liberal legal orthodoxy held. An entire generation of students and others came to see redemptive possibilities in law that otherwise might have been foreclosed, such as deploying Title VII to take on the regulation of employees’ self-expression through dress and hair style. . . . [Such] scholarship plays a long game, not seeking to affect immediate court decisions or legislative enactments. Its impact is felt well down the road.”


  • If you aren’t already following Ta-Nehisi Coates’ online book club for Michelle Alexander’s pathbreaking book The New Jim Crow, check it out. The book club is on Chapters 4-5 this week. My favorite part is that Coates insists you have to read to participate in the comments. If only all book clubs worked that way.


  • This is an interesting story about the need for more lawyers in rural areas. The piece cites the statistic that 20% of Americans live in rural areas, but only 2% of lawyers are located there — a classic example of the gap in access to justice. “Those still practicing law in small towns are often nearing retirement age, without anyone to take over their practices. And without an attorney nearby, rural residents may have to drive 100 miles or more to take care of routine matters like child custody, estate planning and taxes. For people of limited means, a long drive is a logistical hardship, requiring gas, a day away from work and sometimes an overnight stay. And census information shows that rural communities are disproportionately poor.”



The Republican Party’s New Black Friend

Things like this shouldn’t surprise me anymore, but they still do. The Republican Party used a stock image of a black woman to illustrate the point that “Republicans Are Black” — perhaps because they had difficulty finding a black woman who was a Republican, or (more likely) because they didn’t want to expend the effort. The Daily Banter has a funny article about all the other ways this particular stock photo has been used.

This ostentatious display of racial diversity is precisely the phenomenon I wrote about in my 2013 Harvard Law Review article “Racial Capitalism” — the Republican Party is deriving social and (by extension) economic value from the racial identity of the woman in the photo. Put differently, they are extracting value from her race and using it to benefit themselves. This is incredibly common: while I was going through the editing process for “Racial Capitalism,” I had the chance to speak with several members of the communications department at the University of Denver, all of whom said they’d been asked to photoshop a racial minority into promotional materials at some point in their careers.

Two things are remarkable about the Republican Party’s ad and others like it. First, one wonders why they couldn’t just get an actual black woman to be in their ad. Some black women are indeed Republican — I don’t think I know any myself, but I’m sure they exist. And second, one wonders how many times something like this has to happen before people realize that it creates more problems than it solves. Manufacturing fake diversity helps no one. Whether in the form of a non-white person photoshopped into a picture or an ostentatiously diverse set of employee pictures on a website, presenting the appearance of diversity yields none of the rewards of actually having a diverse school, workforce, or constituency.

Whiteness as Property at Twenty Years

This week I’ll be speaking at UCLA as part of a symposium on Cheryl Harris’ “Whiteness as Property,” which came out just over twenty years ago in the Harvard Law Review. The program, with links to concurrent sessions, is available here. The symposium is a full schedule from October 2-4. I’ll be speaking on Saturday about a work in progress called “Identity Entrepreneurs,” which is a follow-up to my own Harvard Law Review article “Racial Capitalism,” which came out last year.

Unfortunately I will miss the Thursday events due to a commitment back here in Denver, but it should be a great event from start to finish. I think CLE credit is available for almost all of the various panels.

Danielle Citron and Robin West: On Legal Scholarship

This brief essay  by Danielle Citron (Maryland) and Robin West (Georgetown) makes several important points about the value of legal scholarship. Citron and West discuss some of the ways that legal scholarship has quite directly affected the development of the law. Sexual harassment law is a well-known example:

“[I]t is easy to find concrete proof of the impact of normative legal scholarship – recognition that sexual harassment of women in the workplace was discrimination under Title VII of the Civil Rights Act of 1964 was debated, thought through and articulated by scholars before it was embraced by courts, legislators and regulators.”

Along the same lines as Citron and West, Jack Chin has collected a number of other examples of the impact of scholarship on the law here and here (scroll down for Chin’s series of seven posts about work cited by the Supreme Court). In light of these examples to the contrary, those who claim that legal scholarship does not influence the development of the law must explain away a considerable amount of evidence to the contrary. Continue reading

Michael Smith: Regulating Law Enforcement’s Use of Drones

I learned a lot from this paper by recent UCLA Law grad Michael Smith. Smith offers a compelling argument that the judiciary is ineffective at addressing privacy issues raised by advances in drone technology. He instead advocates state legislation to balance the privacy and law enforcement interests that drones raise.

Here is the abstract:

The recent rise of domestic drone technology has prompted privacy advocates and members of the public to call for the regulation of the use of drones by law enforcement officers. Numerous states have proposed legislation to regulate government drone use, and thirteen have passed laws that restrict the use of drones by law enforcement agencies. Despite the activity in state legislatures, commentary on the drones tends to focus on how courts, rather than legislative bodies, can restrict the government’s use of drones. Commentators call for wider Fourth Amendment protections that would limit government surveillance. In the process, in-depth analysis of state drone regulations has fallen by the wayside.

In this article, I take up the task of analyzing and comparing state laws regulating the government’s use of drones. While the oldest of these laws was enacted in 2013, the thirteen laws passed so far exhibit wide variations and noteworthy trends. I survey this quickly-expanding list of laws, note which regulations are likely to constrain government drone use, and identify laws that provide only the illusion of regulation.

I advance the thesis that the judiciary is ill-suited to address the rapidly-developing area of drone technology. Long-established Supreme Court precedent leaves the judiciary with very little power to curtail government drone use. And were the judiciary to attempt the task of restricting law enforcement’s use of drones, the solutions proposed would likely be imprecise, unpredictable, and difficult to reverse. In light of these concerns, privacy advocates and law enforcement agencies alike should support the regulation of government drone use by state legislatures, and should look to existing laws in determining what regulations are ideal.

You can also read Michael’s very interesting blog here. He writes regularly about privacy and technology issues as well as other areas of the law.

Danielle Citron: “Hate Crimes in Cyberspace”

I recently finished reading “Hate Crimes in Cyberspace,” an important new book by Danielle Keats Citron. I hope to write up some thoughts here in the coming weeks. For now, I simply want to recommend that everyone read the book. It’s compelling, thoughtful, and timely. And in the meantime, the Guardian has an excellent review by Katharine Quarmby. Here’s an excerpt:

In Sartre’s play his three unhappy characters are trapped, without an exit. But we have one. The law, Citron writes, has what she calls an “expressive value” – it helps us distinguish between right and wrong, and it can result in offenders being put behind bars. Site operators can remove the anonymity of trolls and delete abusive speech. But the heavy lifting comes down to us, trapped in the virtual room with one another.