an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
A few weeks after the Internet exploded with hatred for Walter Palmer, and shortly before the Ashley Madison hacking scandal broke in late August of this year, I found myself driving down a stretch of busy highway winding through the mountain ranges of Western Montana. As I turned a corner descending from a pass, I was confronted with a rundown split level house situated alone on a large plot of farm land. On all sides of the house, in four foot tall letters written with black spray paint, were the words “MOLESTER” and “CHILD RAPIST.”
You don’t have to read Hawthorne to recognize shaming when you see it. Before the the Internet became so widely used, legal scholars argued that there was something wrong about shaming punishments, not unlike that seen in the house in Montana. Martha Nussbaum and Toni Massaro found it violative ofhuman dignity. Jim Whitman and Eric Posner found fault in how unmeasured shaming punishments could be and how easily they could fall subject to mob control.
But whether or not it happens organically or through government sanction, the Internet has changed shaming’s scope, breadth, and impact. The reasons for this are simple: the rise of inexpensive, anonymous, instant, and easily accessible communication technology in the Internet Era has removed the natural limits on shaming and exceeded even the most bearish assessments of legal scholarship. Twenty years ago, someone annoyed that a person was taking up two seats on the New York subway couldn’t evoke outrage from feminists in Nebraska, because how would people in Nebraska know to even care? And why would people in New York care to go to the expense and time to make them? A traveler couldn’t make a racist comment before boarding a flight to South Africa and step off the jetway hours later to a group of citizen-journalists and global notoriety. A single person couldn’t run a man out of his small Georgia town with anonymously public postings calling the man a molester, murderer, tax cheat, and fraud. Before the Internet, shaming someone took time, energy, and involved putting your own reputation at play. In short: it used to be expensive and risky to shame.
That is no longer the case and the result is norm enforcement that is indeterminate in meaning, un-calibrated in degree and length, and thus, often tips into behavior punishable in its own right.
When I say online shaming is indeterminate (or over-determined) I mean that the social meaning of online shaming, while perhaps triggered by an idea of norm enforcement, is ultimately so easy and cheap to take part in that it quickly loses its grounding in norm enforcement at all. For example, a random person “liking” a Tweet condemning Walter Palmer for killing Cecil the Lion might be liking that Tweet for any of the following reasons: (1) he likes lions and is angry a lion is dead; (2) he thinks Palmer violated international law and wishes to punish him; (3) he thinks Palmer violated norms of hunting or treatment of animals; (4) his three best friends re-Tweeted it and he wanted to look like he had read it; (5) he was bored; (6) he’s a sadist and enjoys watching Palmer’s shaming; etc. Thus, though all of it may feel like shaming to Palmer and his family, that is not necessarily the social meaning of each individual action.
This ties, in part, to the un-calibrated nature of online shaming which can be see in the out-sized response (maybe it's a tad excessive to drive a man and his family into hiding, close his business, and vandalize his properties because he killed an animal), but also in the seemingly infinite memory of the Internet, which ensures that the crime and punishment are etched into the world wide web for years and years to come. Even after the scandal has passed and the public fervor died down, the shaming statements themselves have incredible longevity.
Untethered from the nexus of norm enforcement, online shaming can quickly turn into cyber-harassment or cyber-bullying. Cyber-bullying involves mostly verbal aggression that uses threats, blackmail, online personas, cruelty, gossip and rumors which take place typically between children. Similarly, but between adults, cyber- harassment includes threats of violence, privacy invasions, reputation-harming lies, calls for physical harm, and technological take-downs which are exacerbated by the infinite memory of the Internet.
So what is to be done when online shaming turns into behavior punishable in its own right? In cases where the shaming is based on false statements, victims can seek to recover with libel suits. Privately, victims of shaming can hire reputation management companies to re-populate their search results, or try to reverse Google bomb themselves. In the case of cyber- harassment, some progress has been made with Google recently announcing it will begin removing revenge porn from its search results.