Really enjoyed speaking at the Colorado Women’s Bar Association Annual Convention with my former student Joanne Morando, now a prosecutor for Mesa County! We presented the research discussed in our co-written article on cyberharassment, “Communication in Cyberspace,” published in the North Carolina Law Review.
Outstanding piece by Anita Bernstein (Brooklyn) in the Pace Law Review about something that so-called free speech absolutists too often forget: that abuse and harassment actually silence speech, and that if we care about speech we ought to care about the speech that abuse silences.
The article can be downloaded here, and here is the abstract:
Owen Fiss focused on “the robustness of public debate” to conclude on his last page: “The autonomy protected by the First Amendment and rightly enjoyed by individuals and the press is not an end in itself, as it might be in some moral code, but is rather a means to further the democratic values underlying the Bill of Rights.”
This article embraces the same values but more conservatively. Whereas Fiss defended state-sponsored coercion, I leave the government mostly outside the descriptions and arguments presented here. Scholars have sought to apply the law—of crimes, torts, intellectual property, and statutory allotments and immunities—as remedies for online abuse and harassment. A few states have modified their penal codes in this direction. I applaud many of these innovations but do not rely on them. They can be rejected for purposes of the thesis that I sketch in these pages.
Like writings that come before it, this article challenges the chestnut that freedom comes at the expense of another progressive good. Equality, to some writers; antisubordination, to others; “civil rights” also serves. In contending that free speech advances and supports these progressive goals, I step into big footprints—not just those of Owen Fiss but before him, inter alia, Harry Kalven, who argued when the sixties revolution was young that white speakers ought to thank “the Negro” and his civil rights struggle for enlargement of their First Amendment rights delivered to them by the Supreme Court. But my connection to free speech is more literal than what these great precedent-writings teach. Abuse and harassment pull valuable words out of the marketplace of ideas, I argue. They lessen the discourse.
Also following in the path of other writings, this article notes a few higher stakes present in online speech as contrasted with its lower-tech antecedents. Electronic discourse adds anonymity, amplification, and permanence; within this medium, these conditions reinforce each other. Think of a rock thick and opaque enough to hide behind, durable enough to intimidate, heavy enough to inflict a real blow.
Don’t stop there. Think also of a rock’s majesty and beauty. Opacity, durability, and weight are strengths as well as dangers. In this article, I advocate measures against abuse and harassment because (not “even though”) I cherish free speech.
Project for a future post, or perhaps an article: why the term “free speech absolutist” is incoherent, and misleading, and also just kind of dumb. I’m with Martha Nussbaum that no one is really a free speech absolutist. So at a minimum we need a more accurate description of those who call themselves free speech absolutists.
I really enjoyed my guest stint on the Reappropriate video podcast, hosted by Jenn of Reappropriate.com. You can view the podcast on YouTube to hear my thoughts on the Supreme Court, judges and technology, free speech, online threats, subjective intent, the reasonable person, rap music, and much more.
The following post originally appeared on the blog “Hamilton and Griffin on Rights.” The owners of the blog have kindly allowed me to cross-post it here.
The year 2014 has raised many issues relating to offensive, harassing, and threatening Internet speech. In January, columnist Amanda Hess wrote a piece called “Why Women Aren’t Welcome on the Internet,” sparking a wide-ranging and still-ongoing conversation about online speech. The debate over Internet speech has extended to other areas. New York’s highest court considered and ultimately rejected a state cyberbullying statute as overbroad, in violation of the First Amendment. More than twenty states passed or are considering statutes criminalizing revenge porn. Meanwhile, intimate photos of celebrities were stolen, downloaded, and shared over and over. GamerGate led to intense online harassment of women involved in the video game industry, with serious consequences in the offline world—after receiving graphic anonymous threats, pop culture commentator Anita Sarkeesian cancelled a talk, while video game developer Brianna Wu had to leave her home for several days.
It’s fitting, then, that the Supreme Court should hear argument today in Elonis v United States, a case involving involving arguably threatening posts on Facebook. The Supreme Court has held that “true threats” may be criminalized consistent with the First Amendment, although it has not defined the term “true threats” with any precision. The issue Elonis presents is whether a person can be convicted of making true threats if a reasonable person would have perceived the statements as threatening, or whether, as Elonis argues, the government must also prove that the speaker subjectively intended to make a threat. Continue reading
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.”
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.
I hope everyone will take five minutes and watch and listen to this stunning, sad, beautiful, anti-bullying video-poem by Canadian spoken-word artist Shane Koyczan. It’s called “Troll,” and is dedicated to those who have lost someone due to online abuse. Digital Journal has a review.
A few days ago, the Fifth Circuit issued an opinion in United States v. Richards upholding the Animal Crush Video Protection Act (ACVPA) of 2010. At Constitutional Law Prof Blog, Ruthann Robson has a comprehensive analysis of the opinion. Here, I want to offer a few preliminary thoughts about the possible implications of a particular piece of the court’s analysis.
In Richards, the Fifth Circuit ruled that depictions of animals tortured and killed for sexual gratification are not a protected form of speech, thereby reinstating the criminal convictions of a couple who videotaped the deaths of animals. As the Fifth Circuit summarized, the videos depicted defendant Ashley Nicole Richards
binding animals (a kitten, a puppy, and a rooster), sticking the heels of her shoes into them, chopping off their limbs with a cleaver, removing their innards, ripping off their heads, and urinating on them. Richards is scantily clad and talks to both the animals and the camera, making panting noises and using phrases such as “you like that?” and “now that’s how you f*** a pussy real good.”
Defendant Brent Justice recorded these activities on video. Both Richards and Justice were charged under the ACVPA as well as various other criminal statutes. Continue reading
Recent events have caused me to think about the ethics of editorial discretion. In particular, how should authors, editors, and publishers take into account the harm caused by publicizing information about other people’s private lives?
Over the weekend, an online magazine made a very poor editorial choice. A writer for the magazine wrote a piece about the proper use of the term “bro.” The piece included the sentence: “And I just don’t think the diminutive label of ‘bro’ should be to describe more insidious sexism, let alone violent aggression like rape threats.” The words “rape threats” were hyperlinked to a single tweet by a female journalist.* The tweet was addressed directly to another person on Twitter, in which the journalist had used a variant of the word “bro” in briefly alluding to rape threats she had received. (For non-Twitter-users: when a tweet begins with the “@” symbol and the username of another person on Twitter, only the sender and recipient of the tweet, and any people who happen to follow both users, will see the tweet. Other people can then find the tweet, which is technically public, but doing so requires a specific search.)
When the magazine published the piece, the female journalist objected, understandably, on several grounds: (1) the piece suggested that she had talked about her own rape threats the “wrong way”; (2) the piece gratuitously drew attention to those rape threats in a way that would likely provoke more threats; (3) the piece alluded to her rape threats casually, like any other material that might be thrown into a piece to make a point; and (4) the piece made an example of something that she had chosen to keep mostly private and that was undoubtedly disturbing to her. Continue reading