Saturday, September 06, 2014

Citron, Hate Crimes in Cyberspace

Mark Graber

Danielle Citron for the past half decade has been doing for cyber harassment what Catherine McKinnon did for sexual harassment.  McKinnon’s Sexual Harassment of Working Women redefined as criminal behavior the sexual remarks and demands directed at women in the workplace that too many people had regarded as adolescent philandering and teasing.  Citron‘s Hate Crimes in Cyberspace redefines as criminal behavior the repeated threats, insults, and gross violations of basic privacy norms on the internet that too many people, police in particular, regard as  juvenile behavior.  Her book has already gained national attention as a pathbreaking study of how cultural tolerance of bullying and harassment on the internet is threatening to turn the most important contemporary forum for ideas into masculine Wild West where respect and common decency are signs of weakness rather than basic norms of conduct.

Hate Crimes in Cyberspace offers a remarkably thorough survey of the depressing state of the internet for women.  The first chapters detail how women are repeatedly attacked on the internet, sometimes for challenging sacred cows, sometimes because they have broken up with their boyfriends, and sometimes because persons unknown to them derive pleasure from causing random women pain.  Harassment and bullying take the form of death and rape threats, attacks on their websites, posting of nude picture on revenge porn cites, malicious accusations that are often forwarded to associates and potential employers, and Google bombs designed to destroy their reputation in cyberspace.  Many men join cyber mobs who victimize women just for the thrills.  Harassment and bullying have the same impact on the internet as elsewhere.  Women participate less in cyberspace, they become more generally fearful, and they lose employment and other opportunities when persons attempt to research their background in cyberspace.  A decent person would not wish on their worst enemy the cyberexperiences Citron documents.

The second set of chapters detail problems with present efforts to stop hate crimes on the internet.  Citron focuses on three problems.  The first is the genuine difficulty of bringing perpetrators to justice.  The very same anonymity that fosters malicious attacks on women makes attackers difficult to identify.  The second are police attitudes.  Too many law enforcement officials either are unaware of laws prohibiting cyberbullying or regard the laws as somewhat less significant than minor drug offenses in middle class neighborhoods.  A consensus often exists that ordinary citizens ought to have somewhat greater tolerance for online insults and death threats than the president of the United States.  Finally, laws regulating bullying, harassment and stalking were not drafted with the internet in mind.  A person who says “I want to rape you” directly to a potential victim violates laws that may not be violated by a person who posts on numerous websites “I want to rape X.” 

The last set of chapters focus on legal and social solutions to the problem of hate crimes on the internet.  Citron proposes a draft law on revenge porn (that several states are adopting), other measures aimed at preventing cyber mobs from forming and laws outlawing extortionist practices whereby websites encourage malicious postings and then charge victims to take them down.  Hate Crimes also recognizes that the law has substantial limits.  Citron makes a number of intelligent suggestions for how private entrepreneurs, schools and families can help clean up the internet.

Hate Crimes in Cyperspace  has the same ambitions as Sexual Harassment of Working Women, but the approach differs and, I think, is for more successful.  McKinnon has always believed Americans need theory to understand what is wrong with sexual harassment.  Citron’s guiding assumption is that all Americans need is common sense to work out that people should not urge that women be murdered and raped, post nude photographs of ex-girl friends on revenge porn sites, or spread malicious gossip. Hate Crimes details how the vast majority of hate crimes on the internet target women and Citron makes use of some feminist theory when explaining why this is the case.  But while one goal of the book is to ensure an internet in which woman can participate as equals, Citron makes far clearer than McKinnon that the crimes she is documenting can easily be identified by a11 decent persons, regardless of whether they are Kantians, Marxists, critical race, gender or queer theorists, utilitarians, or the like.

The debate over Citron’s work will focus on the First Amendment rights of cyberbullies, but a fair case can be made that the book defines constitutional rights too broadly rather than too narrowly.  Hate Crimes in Cyberspace endorses a populist understanding of the internet in which “All information should be free.” This commitment explains why Citron struggles when drawing boundaries between posting nude pictures of ex-girlfriends on revenge porn websites that are not constitutionally protected and posting other information about ex-girlfriends on various websites that may be constitutionally protected.  I confess to thinking that no one has a right to post, without my permission, my record against the chess program on my private computer, even though this is information.  And despite the mantra “All information should be free,” no one has a constitutional right to post my defense against queen pawn openings if I choose to charge people for this information.   I do not think I have a First Amendment right to post on a public website either “I fantasize about beating the world chess champion” or “I fantasize about murdering the world chess champion.”  Doing so may be highly therapeutic, but with apologies to a significant percentage of my family, the Constitution provides no special protection to therapy.  The First Amendment protects discourse about public affairs, defined broadly but not capaciously.  A very high percentage of what takes place on the internet is not discourse and has little or nothing to do with public affairs.   We might choose to regulate only false claims about a person’s LSAT scores because such claims are particularly damaging, but no constitutional right exists to publish actual LSAT scores, except under rare circumstances.  The same logic explains why we might not want to regulate my public postings about my chess fantasies but regulate my public postings about my murder fantasies even though neither enjoys constitutional protection.  Citron really frets about boundaries when regulating hate speech on the internet because she works within two categories: speech that should be criminalized and behavior that is protected by the First Amendment.  I think there is a third class, namely behavior that for various reasons is not worth criminalizing even though that behavior is not constitutionally protected.

Justice Brennan famously declared that the Constitution of the United States is “committed to the principle that debate on public issues should be uninhibited.”  Not all inhibitions, however, are created equal.  People should not be inhibited by fears that they will be sanctioned by those who disagree with their vision of public life.  Other inhibitions are more valuable, particularly as the connection between speech and public issues becomes increasingly truncated.  People ought to be inhibited by basic norms of decency that prescribe silence when the main purpose of speech is to cause distress, humiliation, and fear.  Danielle Citron has been a crusader for those inhibitions and Hate Crimes in Cyberspace  is the seminal work that documents how truly uninhibited speech savages the marketplace of ideas.

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