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.