Hate Crimes in Cyberspace
Editor’s Note: The Boston University Law Review Annex presents our online symposium on Danielle Keats Citron‘s Hate Crimes in Cyberspace. Professor Citron is the Louis K. Macht Research Professor & Professor of Law at the University of Maryland Carey School of Law. This symposium comprises blog-style posts responding to issues raised in Professor Citron’s book.
The Internet Grows Up?
Danielle Citron’s Hate Crimes in Cyberspace1 is one of the most important publications to date in the emerging fields of privacy and cyberlaw. In her thoughtful and insightful book, Citron explains the uneven playing field and frequently shocking acts of abuse that women face online, and demonstrates practical steps that we can take to remedy the problem of online hate through law, education, and the development of better, more inclusive norms. Other contributors to this Symposium have examined these contributions in great detail, pointing out important nuances of Citron’s argument, urging her in at least one case to be even bolder in her prescriptions.2 I agree with much of what has been said, but as the Symposium draws to a close, would like to take a slightly different tack. I’d like to take a step back from the problems of revenge porn and cyber-harassment, or the extent to which Citron’s remedies comport with what the First Amendment does (or should) provide. When we do that, we see Citron’s efforts (which are far broader than merely this wonderful book) as part of the maturation of digital life. Specifically, Citron’s work is a small but essential part of the larger project of translating our hard-won civil and political rights into the digital sphere—the project, if you will, of helping the Internet grow up.
Cyber-Exploitation and Distributed Enforcement
Many thanks to Danielle Citron and to the Law Review for inviting us to comment on her important and thought-provoking book, Hate Crimes in Cyberspace. To us, the most striking finding in the book is that we lack not laws but law enforcement. In many cases, victims meet with indifference from police or prosecutors, despite clear-cut evidence of crime. Statutory prohibitions on Internet stalking,harassment, revenge porn, and other violations provide little benefit if they lie unused. Successful enforcement actions are sufficiently rare to warrant significant media attention. Part of Citron’s solution is to shift perceptions and norms around these types of cyberspace attacks, using workplace sexual harassment as a model. This is valuable work, but it has a relatively long time horizon.
In the near term, at least, we advocate for greater distributed enforcement, through measures such as tort claims and copyright litigation. If victims are given better tools to identify and bring claims against their harassers, a small subset who are willing to do so can perform effective work as “private attorneys general.”1 Such efforts can punish their individual harassers and deter the harassers of many others. Private actions theoretically should be an attractive part of the solution to the problems that Citron identifies, since they place blame and costs on the most culpable individuals. Such efforts, though, must grapple with the inevitable trade-off between privacy and personal security.2 We argue here that facilitating private litigation is worth its privacy costs. If it isn’t, that finding is enlightening in itself—if the most direct forms of legal accountability are hampered by countervailing policy considerations, the indirect forms will be even more challenging.
Why is it so Hard to Rein in Sexually Violent Speech?
I’m honored to be part of this Symposium on Danielle Citron’s incisive and powerful Hate Crimes in Cyberspace. My comments focus on some free speech issues that persist despite Danielle’s determination to fit her proposals into existing First Amendment doctrine.
The speech at issue is largely aimed at individuals rather than taking the form of noxious group disparagement (racist or sexist rants about groups of people), but it is often based at least in part on gender, race or sexual orientation. Citron shows how the personal nature of the postings (often including the target’s real name and identifying information) can lead to the denial of job offers, loss of work for those who are employed, withdrawal from social media that are essential to success in many endeavors in the modern world, and loss of identity—as in the case of a woman who had to abandon a successful blogging career, a feminist speaker who could no longer use her real name when travelling or publicize her talks, and several women who felt they had to masquerade as men in order to participate safely in online forums. Citron persuasively demonstrates that online speech starting with one speaker too often transmutes into mob speech in cyberspace and may be linked to tangible intimidation, harassment and violence in the physical world.
Increasing the Transaction Costs of Harassment
Wouldn’t it be nice if the rules, agreements, and guidelines designed to prevent online harassment were sufficient to curb improper behavior? As if. Wrongdoers are not always so easily deterred. Sometimes these approaches are about as effective as attacking tanks with toothpicks.
As Danielle Citron contends in her critically important work, Hate Crimes in Cyberspace, the design of the Internet facilitates vitriol and abuse, even when it is legally, contractually, and normatively prohibited. Communicating almost effortlessly at distance—sometimes anonymously and typically with minimized body language—can heighten emotional detachment and blunt moral sensitivity. Tragically, when a mediated environment makes it easy to harass others, harassment occurs, all things being equal.
Fortunately, there’s hope. Since mediated environments can fuel harassment, designing online spaces to make harassment difficult—or, in economic terms, costly—should diminish it. But as with anything important, the devil is in the details.
A New Taxonomy for Online Harms
Sections of this essay borrow from and reference my forthcoming work Re-Shaming the Debate: Social Norms, Shame, and Regulation in an Internet Age, in the Maryland Law Review.
At the outset of her ground-breaking book Hate Crimes in Cyberspace, Danielle Citron crucially defines the relatively novel harm of “cyber harassment.” As Citron writes, cyber harassment “involves threats of violence, privacy invasions, reputation-harming lies, calls for strangers to physically harm victims, and technological attacks” (3). Though all of these elements would also simply fall under a simple legal definition of harassment or abuse, Citron brilliantly explains why online harms are different. “The cyber label adds something important . . . it captures the different way the Internet exacerbates the injuries suffered . . . by extend[ing] the life of destructive posts” (4) (emphasis author’s).
The Internet’s powerful amplifying effects on this type of harmful behavior are also seen with cyber bullying.
Online Harassment, Profit Seeking, and Section 230
Liberals, to paint with a very broad brush, generally believe that government regulation will give us a better world than a free market will. For example, the environment will be cleaner if there are restrictions on how much factories can pollute the land, air and water. And working conditions will be better if employers must hire in a nondiscriminatory manner, pay a minimum wage, and devote attention to health and safety concerns. Speech, however, is often an outlier. Many liberals staunchly oppose any regulation of speech. The U.S. government has made so many truly bad speech interventions, this is understandable, but still problematic.
Stanley Fish has observed that within the realm of legal scholars, First Amendment absolutists “elevate the status of expression to an ultimate good and at the same time either deny the harm – the statistics are inconclusive; the claims cannot be proved — or minimize it in relation to the threat regulation poses to free expression.”1 He credits Jeremy Waldron with explaining “that the position is formulated and presented as an admirable act of unflinching moral heroism by white liberal law professors who say loudly and often that we must tolerate speech we find hateful. Easy to say from the protected perch of a faculty study, where the harm being talked about is theoretical and not experienced.”2
Online Harassment and Intermediary Immunity
Throughout much of Hate Crimes in Cyberspace,1 Danielle Citron sounds a clarion call for reform to prevent abusive behavior online, especially toward women. As she demonstrates vividly with her case studies, this is a civil rights crisis. And she has lots of ideas to combat it. When the discussion turns to liability for internet intermediaries, however, Citron’s tone becomes more cautious and subdued. This shows good judgment: there isn’t much reason to hold back where the only opposing forces are apathy and misogyny, but this particular issue involves meaningful interests in free expression. That said, there may now be scope to do more than Citron proposes.
We can learn about our options from two previous situations where the law has held online intermediaries responsible for content: the notice-and-takedown regime of the Digital Millennium Copyright Act (DMCA) here in the United States, and the emerging “right to be forgotten” in the European Union. Neither of these laws has “broken the internet,” to use Citron’s phrase, although I shall suggest that each has shortcomings to be avoided in designing any remedy for online harassment.
The second annual Anti-Slavery Convention of American Women was scheduled to take place in Pennsylvania Hall in May 1838. The women who organized the event were known for their outspoken activism calling for the abolition of slavery and in favor of women’s equal rights. As history scholar Sally G. McMillen relates,
The week before the upcoming interracial forum, hecklers were in the street denouncing it. Notices posted around the city urged people who cared about their jobs and the Constitution to attend and protest this convention of ‘amalgamators.’ . . . As the convention opened . . . some three thousand protestors filled the aisles and galleries of the hall and began to smash windows. The women found it almost impossible to conduct their meeting . . . , hissing and shouting drowned them out . . . . Protestors threatened speakers with bricks and rocks . . . . The mayor refused [to provide police protection] claiming that the female abolitionists had brought this chaos on themselves . . . . [M]obs broke into the hall, opened the gas jets, and set the auditorium on fire.1
It was neither the first nor the last time that women’s attempt to exercise their right to free expression would be met with violence and intimidation, or that women would be blamed for bringing the abuse upon themselves. Throughout history, there have been countless eruptions of fear and rage against women who dared to speak, work, dress, travel, or be educated in ways that men found unacceptable. Women have been threatened, stalked, harassed, beaten, sexually assaulted, and even killed for entering spaces traditionally considered the exclusive provinces of men, from voting booths to marathons to the military. The multiple forms of unjustified aggression directed at women in public spaces, workplaces, and schools send a powerful message: shut up or get out.
For Whom the Bell Trolls
Hate Crimes in Cyberspace is among the most important academic books about the Internet in recent memory.1 It is creative, rigorous, and almost implausibly well written.2 The characterization of the underlying issue of online hate crimes is quintessential Danielle Keats Citron: stories to move, data to prove. You couldn’t read this book and think the problems Citron identifies should be ignored. And her solution—better, and better enforced, laws—is clear, pragmatic, and entirely plausible.
My comments amount to a simple observation: not all trolls are alike. Citron pays appropriately significant attention to the victims of online hate, treating these individuals in all their depth and variety. Her portrait of the perpetrator is thin by comparison. Chapter Two (pages 56-72) discusses the various forces that foster and exacerbate cruelty online. But the person who engages in the kind of hate speech Citron is concerned with—the sort that merits criminal prosecution—does so with a vehemence, cruelty, and diligence that would frankly be impressive in other contexts.
How Citron Changes the Conversation
Rules of law, both statutory and common law, develop in response to mischiefs in the world. Law professors tend to focus on those rules, to criticize the rules in place and test them for internal incoherences and tensions, and ultimately to offer prescriptions as to how the courts can do their jobs better.
Danielle Citron’s book, Hate Crimes in Cyberspace,1 offers plenty of prescriptions. Fundamentally, however, it is an account of a mischief. It reveals a toxic new world within cyberspace, in which some people—mostly women—are targeted for massive harassment by anonymous mobs. The anonymity of the internet creates opportunities and perhaps even incentives for extraordinarily bad behavior. Citron describes the dynamics of that behavior with care and even some sympathy for the perpetrators, who sometimes are horrified to wake up to what they have been doing.
Hate Crimes at the Front and Back End of Free Speech Law
Contemporary free speech law is pushing Professor Danielle Citron and other proponents of banning hate crimes on the internet to concentrate their efforts of the back end of First Amendment law when regulating utterances and publications that ought to be excluded at the front end. The front end of constitutional free speech rights concerns what counts as constitutionally protected speech. This essay is constitutionally protected speech. Ax murders are not, although such cases as Brown v. Entertainment Merchants Association1 cast some doubt on this common sense proposition. The back end of constitutional free speech rights concerns when, where and how government may regulate constitutionally protected speech. Congress may forbid my efforts to nail this essay to the White House doors, but not my effort to read this essay in the town park during daylight hours. Over the past half century, constitutional law has lost substantial capacity to exclude utterances and publications at the front end, while gaining substantial capacity to regulate constitutionally protected speech at the back end. This dynamic makes regulating revenge porn harder than constitutionally appropriate and regulating core political speech easier than constitutionally appropriate.
A Comment on Danielle Citron’s Hate Crimes in Cyberspace
Danielle Citron’s Hate Crimes in Cyberspace is a breakthrough book. It has been compared, and with good reason, to Catherine MacKinnon’s Sexual Harassment of Working Women. The book makes three major contributions. All are central to furthering the equality of women and men both in cyberspace and elsewhere.
First, Citron convincingly catalogues the range of harms, and their profundity, done to many women and some men by the sexual threats, the defamation, the revenge pornography, the stalking, and the sexual harassment and abuse, all of which is facilitated by the internet. The second contribution, and the bulk of the book—the middle third to half—is a legal analysis of these harms. Citron begins by comparing the current status quo regarding our understanding of gendered harms in cyberspace with the legal environment surrounding domestic violence and sexual harassment thirty or twenty years ago. As was domestic violence and sexual harassment, Cyber-harassment today is, first, relentlessly cast as the victim’s fault, routinely dismissed as the relatively trivial cost of the much-to-be-desired wild-westiness of the unregulated internet, or the unavoidable price of the free speech rights we all enjoy. Meanwhile the victims are dismissed as whiners, or thin-skinned, or overly sensitive, as incapable of manning up to the slings and errors that go with the territory on the internet, as too dull or humorless to take a joke, as too prone to hysterics to recognize harmless or pathetic barbs when they see them, and as incapable of understanding the importance of First Amendment values. As Citron says, we have been here before.
The Fusion of Cyberharassment and Discrimination
Cyberharassment devastates its victims. Anxiety, panic attacks, and fear are common effects; post-traumatic stress disorder, anorexia and bulimia, and clinical depression are common diagnoses. Targets of online hate and abuse have gone into hiding, changed schools, and quit jobs to prevent further abuse. Some lives are devastated in adolescence and are never able to recover. Some lives come to tragic, premature ends. Danielle Keats Citron not only teases out these effects in her masterful work, Hate Crimes in Cyberspace; she also makes the profound conclusion that these personal effects are part of a larger social cancer that breeds sexism, subjugation, and inequality.1
According to one study, almost three-quarters of cyberharassment reports come from women. Nearly half of all lesbian, gay, bisexual, and transgender (LGBT) youth experience cyberharassment each year,2 and LGBT teens are three times more likely than heterosexual teens to be harassed online and twice as likely to receive threatening or harassing text messages.3 As a gendered and sexualized phenomenon, cyberharassment plays a role in the continued subjugation of women and members of the LGBT community.
The Liberal Divide &
the Future of Free-Speech Law
It is now obvious: When it comes to the First Amendment, liberals are badly divided. Some liberals are more attracted to the equality side of the constitutional divide than they are to the liberty side, and vice-versa. This has real consequences for those of us caught in the liberal crossfire of a war over words, which is nothing short of a philosophical and cultural battle to capture the liberal mind.
There was a time, in the closing years of the Warren Court Era, when liberals applauded First Amendment victories. No more. Liberals now clash with liberals. Today division has replaced celebration, quarreling has supplanted accord, and the accolade “hero” is no longer routinely reserved for a First Amendment victor.
Cyberharassment and Workplace Law
By documenting how cyberharassment can target and injure members of traditionally subordinated groups, Danielle Keats Citron’s Hate Speech in Cyberspace contributes importantly to our understanding of the relationship between speech and equality. For these reasons, as her opening contribution to this online symposium makes clear, policymakers and the public are now starting to rethink their longstanding hands-off approach to the regulation of online speech that inflicts such harms. Here I very briefly explore what this might mean for workplace law.
First, Professor Citron’s work and related developments invite us to broaden our understanding of the universe of actors who shape access to job opportunities, as well as our understanding of how they can use speech to expand or constrain those opportunities. Although employment law has traditionally focused on regulating the relationship between “employers” and their “employees,” the emergence of Uber, Lyft and other participants in the “sharing” or “gig” economy demonstrates how those who are hard to fit in traditional employer/employee categories increasingly control access to work. In describing the ways in which online harassers can limit their victims’ job prospects by damaging their online reputation with employers, potential references, and others, Hate Speech in Cyberspace similarly encourages us to reconsider our assumptions about who holds power over important work opportunities.1
We are delighted and honored to present the Boston University Law Review Annex’s online symposium on Danielle Citron’s timely and significant book, Hate Crimes in Cyberspace (Harvard University Press, 2014). We are happy to welcome Professor Citron back to the BU Law Review, where she published Cyber Civil Rights, the initial article in this project that has now culminated in her book, and Intermediaries and Hate Speech: Fostering Digital Citizenship for Our Information Age, with Helen Norton.
Hate Crimes in Cyberspace raises important issues, and Professor Citron’s courageous and constructive work warrants thoughtful discussion. As online communication becomes omnipresent, and as our lives become more and more digitally integrated, it is imperative that we confront the problems she has identified. We are confident that this symposium on Hate Crimes in Cyberspace will contribute to the conversation about these pressing issues.
We also would like to welcome this wonderful group of contributors, including many leading First Amendment, Cyber Rights, and Civil Rights scholars. We anticipate a lively, informative discussion.
Finally, thanks to James Tobin, the Annex’s online symposium editor, for his resourcefulness and energy in putting together this symposium.
Online Engagement on Equal Terms
In 2007, when the media started covering the phenomenon of cyber harassment, the public’s reaction was disheartening. Although the abuse often involved threats, defamation, and privacy invasions, commentators dismissed it as “no big deal.” Harassment was viewed as part of the bargain of online engagement. If victims wanted to enjoy the Internet’s benefits, they had to bear its risks. Victims should stop “whining” because they chose to blog about controversial topics or to share nude images of themselves with confidantes. Victims were advised to toughen up or go offline.1
Anti-harassment legal proposals met with disapproval. Commentators argued that the law would jeopardize the Internet’s role as a forum for public discourse. The benefits of legal action were outweighed by the costs to free expression. For the good of free speech, abusers needed to be let alone.2
Curiously absent from discussions about the Internet’s speech-facilitating role was individuals’ difficulty expressing themselves in the face of online assaults. In response to the abuse, individuals often withdrew from online discourse. They shut down their blogs, sites, and social network profiles not because they tired of them, but because they hoped to avoid provoking their attackers. No attention, however, was paid to the silencing of victims.3