Theater of Cruelty

Amanda Hess' essay Why Women Aren't Welcome on the Internet has justly received a great deal of attention, even from unlikely sources. (Imagine me posting a link to Douthat without snark!) A careful blend of statistical analysis, personal experiences--Hess's own and those of other female bloggers--she builds a strong case that the treatment women undergo has the effect of silencing all too many female voices.

Hess then suggests a civil rights response:

Federal civil rights law can punish “force or threat[s] of force” that interfere with a person’s employment on the basis of race, religion, or national origin. That protection, though, doesn’t currently extend to threats targeted at a person’s gender. However, other parts of the Civil Rights Act frame workplace sexual harassment as discriminatory, and requires employers to implement policies to both prevent and remedy discrimination in the office. And Title IX of the Education Amendments of 1972 puts the onus on educational institutions to take action against discrimination toward women. Because Internet harassment affects the employment and educational opportunities of women, laws could conceivably be amended to allow women to bring claims against individuals.

But it’s hard to get there from here. As Citron notes, the Internet is not a school or a workplace, but a vast and diffuse universe that often lacks any clear locus of accountability. Even if online threats are considered a civil rights violation, who would we sue? Anonymous tweeters lack the institutional affiliation to make monetary claims worthwhile. And there is the mobbing problem: One person can send just one horrible tweet, but then many others may pile on. A single vicious tweet may not clear the hurdle of discriminatory harassment (or repetitive abuse). And while a mob of individuals each lobbing a few attacks clearly looks and feels like harassment, there is no organized group to take legal action against. Bringing separate claims against individual abusers would be laborious, expensive, and unlikely to reap financial benefits. At the same time, amending the Communications Decency Act to put the onus on Internet platforms to police themselves could have a serious chilling effect on all types of speech, discriminatory or otherwise.

Citron admits that passing new civil rights legislation that applies to a new venue—the Internet—is a potentially Sisyphean task. But she says that by expanding existing civil rights laws to recognize the gendered nature of Internet threats, lawmakers could put more pressure on law enforcement agencies to take those crimes seriously. “We have the tools already,” Citron says. “Do we use them? Not really.” Prosecuting online threats as bias-motivated crimes would mean that offenders would face stronger penalties, law enforcement agencies would be better incentivized to investigate these higher-level crimes—and hopefully, the Internet’s legions of anonymous abusers would begin to see the downside of mouthing off.

Now, this has the potential to raise all kinds of First Amendment problems, as even Hess and the legal scholars she cites acknowledge, and, depending on the breadth of the definition such a law could implicate the some of the concerns I expressed years ago about the MacKinnon-Dworkin anti-pornography civil rights law.

But as Hess and the legal scholars upon whose work she draws suggest, the analogy to workplace discrimination provide a template that seeks to limit the reach of the law to protect the free exchange of ideas, while protecting the right of women to participate in equal terms online. The limitation of the hostile work environment doctrine to speech that constitutes a verbal act--that is, not the expression of ideas, but the functional equivalent of an act, seeks to respect the boundaries drawn by the First Amendment. Any law that tries to regulate online speech will have to be especially carefully drawn to respect that demarcation. And I am especially concerned by a criminal law approach, especially in view of the very lack of internet savvy-ness of many law enforcement agencies detailed by Hess. Still, Hess has made a strong case that the alternative--doing nothing--will perpetuate a greater degree of censorship, and an especially invidious kind: silence by intimidation.