Brian Leiter's Law School Reports

Brian Leiter
University of Chicago Law School

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Tuesday, November 19, 2013

Anonymity and cyber-harassment

Professor Leong makes several good points, on themes we've touched on before.

(Link now fixed.)

UDPATE:  This is worth quoting in particular:

[T]he various anonymous comments about me have no purpose other than to harass and no content other than racially and sexually demeaning language.  And the reason they’re anonymous is obvious.  The commenters want to make racist, sexist, and sexually harassing comments without having to suffer the consequences of engaging in such speech in real life.  Such speech contributes literally nothing to discourse.  And to briefly retread ground I covered in my first post, it’s worth noting that each thread I’ve referenced above started out as a thread at least nominally about my scholarship and my ideas, but quickly shifted to comments about my identity.

The claim that anonymity inherently promotes First Amendment values thus makes little sense in a world of race- and gender-based online harassment.  To be clear, I have no problem with anonymity per se — indeed, I agree with the Supreme Court’s statement in McIntyre v. Ohio Elections Commission that “[a]nonymity is a shield from the tyranny of the majority.”  When people write anonymously, but do so in a way that contributes to discourse, it seems to me that the choice to withhold one’s name is up to the individual.  Indeed, anonymity might empower some marginalized speakers to engage in discourse who would otherwise remain silent.

But when anonymity facilitates harassing and abusive speech directed at marginalized identity groups, society has a strong First Amendment interest in regulating anonymity.  Harassing and abusive speech results in a net loss to the marketplace of ideas.  Online racial and gender harassment silences the speech of many women and people of color, diminishing the diversity of perspectives represented in online discourse and impoverishing the “free trade in ideas” within “the competition of the market” that Justice Holmes first discussed in his famous dissent in Abrams v. United States.  If we really care about the marketplace of ideas, we should care about eliminating online racial and gender harassment.

ANOTHER UPDATE:  Mary Anne Franks (Miami) has explored similar issues, including in "Sexual Harassment 2.0," 71 Maryland Law Review 655 (2012) ("In order to address multiple-setting harassment, a third-party liability regime similar to that of traditional sexual harassment law should be introduced into non-traditional contexts.  In the particular case of online harassment, liability should attach to website operators. This regime will create an incentive for website operators to adopt preemptive, self-regulatory measures against online sexual harassment, much as employers have done in the offline setting") and in "Unwilling Avatars: Idealism and Discrimination in Cyberspace," 20 Colum. J. Gender & L. 224 (2011):

Cyber harassment affects women disproportionately, both in terms of frequency and in terms of impact. Moreover, there is a particularly poignant irony in the nonconsensual sexualized embodiment of women in cyberspace. As will be discussed in more detail below, cyberspace can present particularly compelling opportunities for women because they feel the constraints of physical vulnerability, especially sexual vulnerability, more acutely than men. In that case, the extent to which this physical vulnerability is re-imposed upon them--principally by men--in cyberspace is truly disheartening. If cyberspace harassment makes many women feel less safe online than they do in real life, and more exposed and vulnerable to sexual aggression both on and offline, this under- mines the idealistic promise of cyberspace in a significant way. The volume and viciousness of cyber-attacks-- especially sexualized attacks--on women by men suggests that cyberspace cannot be thought of as a place where, on balance, women and men can participate equally. Rather, it is a place where existing gender inequalities are amplified and entrenched.

http://leiterlawschool.typepad.com/leiter/2013/11/anonymity-and-cyber-harassment.html

Law in Cyberspace, Of Academic Interest | Permalink