1. JT - April 14, 2009 at 6:15 pm

   The hypothetical seems incomplete. (1) It appears that the message was private — an individual email rather than a posting on a public web site over which the recipient has no control; and (2) there is no indication that the victim was targeted on account of race, gender or sexual orientation. As to (1), getting obnoxious emails from jerks is part of being a public person. (I would require something more direct (I will mug you) or a pattern of such menacing conduct for there to be an actionable threat.) The examples offered by Danielle Citron included direct threats, a pattern of harassment and direct interference with employment, as I recall. As to (2), straight white males have civil rights — when those characteristics are the cause of discriminatory or threatening treatment. Federal criminal civil rights laws protect white persons from race-based violence (but do not currently protect anyone from gender or orientation-based violence), and federal civil and constitutional provisions also protect white persons from discrimination in employment, voting, etc.

2. Paul Gowder - April 14, 2009 at 6:45 pm

   Orin, perhaps a slight counter-hypo will clarify the issues. Suppose the commenter thinks that the blogger is female? It seems to me that the nature of the behavior, and whether it takes a civil rights reading or not, wouldn’t change in virtue of the commenter’s being mistaken about the gender of the blogger.

   We can run with this mistaken identity thing further and further until it seems extremely compelling to treat it as a civil rights issue relating to the oppression of women regardless of the actual gender of the blogger.

   Suppose, for example, that the e-mail is much more vicious — suppose it includes speculation about the sexual behavior of the recipient (of the “filthy slut” sort) and rape threats? Civil rights issue now? Even though the commenter only mistakenly thinks the blogger is female?

   Now let’s crank it up a little more. Horribly vicious content as in the previous paragraph, but instead of being a private e-mail, it’s posted on an anonymous high-traffic website with a link to the blog from which the commenter was banned? This seems to be pretty obviously the sort of behavior that counts as a civil rights issue, if only because of the atmosphere of fear it creates for other women, and again even though the primary victim turns out to be a male.

   A lot of the conduct addressed in D.C.’s paper is of the last sort, and it’s hard to see how it could not be a civil rights issue, or how the gender identity of the victim is in any way dispositive of the problem. The conduct is essentially gendered in a way that makes the gender of the specific victim a sideshow to the main social issue.

   If your hypo is just a milder version of my last hypo, where the difference is only in degree but not in kind, doesn’t that suggest that the conduct at issue in yours is also a civil rights issue?

3. Orin Kerr - April 14, 2009 at 7:13 pm

   JT, Paul,

   I suppose the question is ,what makes an issue a “civil rights” issue? Do we just know it when we see it? Or do we have a rigorous or working definition? Or perhaps it is a positive law issue, such that if conduct appears actionable under a statute labeled a civil rights statute, then it is a civil rights issue? I’m just not sure when the label is appopriate, or what we gain from using it.

4. Paul Gowder - April 15, 2009 at 12:33 am

   Here’s a working definition: something is a civil rights issue, rather than a general wrong, if it perpetuates, or is a wrong greatly facilitated or constituted by, the hierarchical position of an ascriptive (or otherwise involuntary) group that is assigned an inferior position in the aforementioned social hierarchy. That’s obviously off the cuff, but it seems about right to me and covers gendered cyber-harassment as well as the more conventionally understood civil rights problems.

5. Orin Kerr - April 15, 2009 at 2:21 am

   I certainly appreciate the effort, Paul. To the extent I understand your definition, though — which I’m not sure I do, to be candid — it seems really broad. Indeed, under that definition, I would think that a lot of criminal law can be considered civil rights law.

6. Paul Gowder - April 15, 2009 at 11:34 am

   Um, what’s not to understand? “Which I’m not sure I do, to be candid” is, to be candid, not terribly constructive in facilitating a clarification.

   As for the broadness, well, some parts of criminal law probably ought to be considered civil rights law, like rape and domestic violence laws — or, at least, rape and domestic violence ought to be considered a civil rights problem. Other criminal laws address behavior that sometimes has civil rights implications, for surely gay-bashing is a civil rights issue even though ordinary assault isn’t. I’m not sure how else it’s terribly broad, once we realize we’re talking about patterns of behavior and societal subordination.

7. Orin Kerr - April 15, 2009 at 12:37 pm

   Paul,

   Sorry if my uncertainty wasn’t constructive. The terms you are using are steeped in a specific ideology that I don’t share, and draw from a literature I haven’t read. As a result, understanding what you intend your definition to mean is really hard: I can make guesses at what you think it means, but they are just guesses.

8. JT - April 15, 2009 at 6:29 pm

   Returning tardily to the discussion — I attempted to define, or at least frame “civil rights” in terms of the current statutory and constitutional framework. The Reconstruction Amendments and their enforcing statutes (and the 19th Amendment which, curiously, has no enforcing statute) protect individuals froom discrimination based on race and, in some cases, gender and other characteristics. Discrimination on the basis of race in the area of, say, housing, is illegal regardless of the specific race of the victim. Obvioulsy, mos tof the victims of race discrimination are, have been and, I suspect, will be members of minority groups rather than white persons. That does not mean that white persons are not protected. If you are denied an apartment because you are white, you have a cause of action. If you are denied an apartment because you can’t pay for it, you are not being discriminated against — your civil rights are not being denied — regardless of your race (at least under our system, which tolerates economic stratification). The current legal framework provides a structure for treatment of other groups not currently protected: the key element is that you were singled out for inferior treatment because of a particular characteristic. I acknowledge that my approach is simplistic and oriented to action rather than larger issues.

9. Paul Gowder - April 15, 2009 at 11:14 pm

   (Long overdue reply. Sorry for length.)

   Orin, my working definition probably did rely on a little more race/feminist/etc. work than I should have assumed. But I think we can draw it out a little more. Some propositions:

   1) There are certain involuntary categories of people in society who are systematically treated worse than others because of their membership in those categories: women, gay people, racial minorities, etc.

   2) This systematic mistreatment comes in the form of certain repeated patterns of behavior that are associated with the identity — rapes, sexual harassment, domestic violence, gay bashing, cross-burning, employment discrimination, etc.

   3) The systematic mistreatment is best understood in the context of a belief in the inferiority of the people in those classes. (In interpretive terms, the mistreatment is rationalized by that kind of belief.) The existence of this mistreatment and its tacit acceptance makes it easier for people to believe those false inferiority claims. (For an example of this, consider Larry Summers’s comments about a possible innate explanation for the absence of women in science, a prospect that only has cognitive appeal because of the discrimination against women in science.)

   4) The systematic mistreatment plus the beliefs in inferiority make people in the target classes more vulnerable to kinds of harm than people who aren’t in the target classes. For example, women are more vulnerable than men to being put in fear by crude sexual comments because of the omnipresent threat of rape.

   5) The things noted above also facilitate certain kinds of speech. Calling someone a “pussy” as an insult, for example, is facilitated by the fact that women are perceived as inferior.

   Then a civil rights problem is anything that fits into the pattern of behavior, beliefs, and vulnerabilities outlined by those five propositions.

10. Orin Kerr - April 15, 2009 at 11:44 pm

    Paul,

    I appreciate the attempt to clarify, but it seems to me that several of these steps require me to first agree with you on a lot of very controversial and highly contested questions or politics, ideology, and the nature of society and its divisions. What happens if we disagree on these questions?

    I’m curious about how you would apply your test, too. Take two examples, from other types of common computer crimes:

    1) Fraud crimes. Fraud crimes disproportionately target the elderly. Is fraud therefore a civil rights issue?

    2) Child pornography crimes, which of course exclusively target children. Civil rights issue?

11. Mike - April 16, 2009 at 3:04 am

    It seems that anti-discrimination laws have done a pretty good job at defining what a civil rights issues it. When you disparately treat someone based on an immutable vulnerability, it’s a civil rights issue. To add to Paul’s list, we could include handicapped/disabled.

    Should the law, e.g., provide a sentencing enhancement for crimes against the handicapped or eldery? I think so.

    Now, re: your e-mail: Did that e-mail actually scare you? I suspect if we did an MRI, you’d be less afraid than a similarly-situated woman. That’s because, by nature of being a taller-enough white guy, those types of threats aren’t troubling. There is a certain perception that comes with coming in a larger-sized body. Indeed, if I had received that e-mail, I would have laughed. Then I would have invited the sender to meet me in person. My 5′3″ wife, otoh, would have been freaked out.

    If someone, in sending a threat, is preying on an immutable vulnerability, then I think it’s properly viewed as a civil rights issue.

12. Paul Gowder - April 16, 2009 at 4:59 am

    Orin,

    Your two questions have the same answer, because I take it that one of the things, possibly the only thing, you (might) disagree about is the claim that the social subordination women experience is different in some significant way from the experiences of the elderly and children.

    Generally, I don’t think the appeal to disagreement works. The answer to “but I disagree with your social/ideological presumptions” is “you’re wrong to do so, and I can defend those presumptions.”

    And of course identifying what a civil rights problem is requires all sorts of controversial claims about the way that society is organized — the essence of a civil rights claim is that people are being subjected to an injustice, and whenever you have a claim that A is being treated unjustly, you have a B, including but not limited to the people who are perpetrating the injustice, who think that A is being treated just hunky dory.

    The argument from disagreement about social issues could also well have applied to the one thing that uncontroversially counts as civil rights today, namely the “civil rights movement” ™. At the time, many doubtless endorsed things like separate but equal, and, consequently, denied that black people were being treated unjustly, and so also would deny that black people had civil rights claims under the definition I’ve tried to articulate. But that’s just what happens when people who have been treated unjustly start to fight back. Eventually, the leaders of the civil rights movement ™ won that argument, and that’s the way these things happen. But there was a real civil rights issue before the argument was won, even if identifying the issue required agreement on controversial issues about racial justice.

    So the crux is that if you don’t think the sort of mistreatment directed at women is different from the sort of mistreatment directed at elderly people — if you don’t think we live in a society that systematically subordinates women in a way that it doesn’t (or doesn’t to the same extent) systematically subordinate the elderly, or children, or other vulnerable populations that aren’t treated as inferior, then we aren’t ready to talk about the civil rights label. First we have to talk about the kinds of injustice that are happening to women. And we can have that conversation — not here, probably, because it would be a huge digression and difficult if not impossible to carry out in blog comments. But the conversation is there to be had — there is no shortage of willing and capable defenders of the proposition that we live in a patriarchy.

13. JP - April 16, 2009 at 12:51 pm

    Paul,

    It could just as easily be argued that you are a defender of the paedarchy (rule by children), and accordingly are blind to the mistreatment of the elderly. The ADEA is generally considered a “civil rights statute.” Is this characterization just wrong? If so, by what criteria (to echo Orin’s question)? Another response that mistreatment of the elderly is “different” than mistreatment of women or racial minorities is not particularly constructive without some explanation.

14. Mike - April 16, 2009 at 2:34 pm

    What about weight-based discrimination? Some researchers contend that weight-based discrimination is more widespread than race-based discrimination:

    http://a.abcnews.com/Technology/BeautySecrets/story?id=4568813&page=1

    Fat as a civil rights issue? If it’s true that fat people face more widespread discrimination than black people, shouldn’t scare government resources go towards protecting fat people rather than blacks?

    Incidentally, there has been a movement to provide protection to the obese. San Francisco, e.g., has a short-and-fat law:

    http://www.sfgate.com/cgi-bin/article.cgi?file=/chronicle/archive/2002/02/24/MN187100.DTL

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