Cyberharassment’s Waterloo
posted by Ari Waldman
I begin my Co-Op blogging stint with deep appreciation for Danielle Citron’s invitation and for the entire Co-Op community’s indulgence. I am honored to be a small part of a wonderful online community that brings out the best in us and, for that matter, Web 2.0. My name is Ari, I am a Legal Scholar Teaching Fellow (just like a VAP) at California Western School of Law and I am a student of the interplay among the First Amendment, the Internet and other modern technologies and their effects on minority populations, like gays and lesbians. I go on the professor job market this Fall. I have a weekly blog (every Wednesday) over at the country’s most popular gay news site, Towleroad, for those interested in perspectives on LGBT legal issues for a mass audience. I also have a healthy relationship with physical fitness and an unhealthy relationship with the store Jack Spade. If there’s counseling for the latter, I’d appreciate a reference. Kidding…
For my month of blogging, I hope to engage with you in a few conversations, mostly about cyberharassment and the First Amendment, and hopefully with a healthy dose of humor.
My current project is the third in a series of projects about cyberharassment. The previous articles, available here, address the effects of cyberharassment on LGBT youth, argue for the use of affirmative “soft power” rather than after-the-fact criminalization to solve the problem and create a new analytical framework for adjudicating student free speech defenses to a school’s authority to punish cyberaggressors. Now I am considering the effect that cyberharassment, particularly harassment of a minority group, has on civic participation and the realization of democratic values. I argue that Internet intermediaries self-regulation of their sites and services to filter out hate, sexual harassment and other aggression conforms with long-standing First Amendment values.
Like President Obama likes to say, let me be clear. I do not mean to suggest that the First Amendment applies as a limit on the activities of private actors like Facebook or MySpace or Google; rather, I think that contrary to libertarian First Amendment scholars, we can expect these online intermediaries to regulate content and say that doing so reflects the democratic interests that underly the First Amendment.
Here’s the draft argument in brief that I am currently working out: The view of the Internet as an unencumbered and unfettered town square deserving the same Rawlsian liberal approach to free speech is wrong. Every online interaction is governed by intermediaries of varying kinds, all of which are the filters through which our online speech makes it through to our online communities. Traditional intermediaries have the power to regulate content consistent with the First Amendment, especially when not doing so would interfere with their and their users’ ability to participate in civil society. We see this more Aristotelian/communitarian approach to First Amendment values in intermediary jurisprudence — from publishers to book stores, and from schools to workplaces. And, like schools and workplaces, which can regulate their members’ speech in order to fulfill the institutions’ purposes, so too can online intermediaries like Facebook.
This project is in the early stages, and I always welcome comments/suggestions/evisceration of the argument. More to come…
I look forward to continuing this and other discussions with this splendid community.
June 1, 2011 at 10:52 am
Posted in: Constitutional Law, Cyberlaw, First Amendment, Google & Search Engines, Legal Theory, LGBT, Web 2.0
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Responses (5)
shg - June 1, 2011 at 11:18 am
And?
Andrew MacKie-Mason - June 1, 2011 at 1:51 pm
I think the suggestion that Facebook should be treated just like a book publisher in terms of First Amendment principles is mistaken. Facebook and other major internet corporations have a significant amount of control over speech, to the extent that a decision by Facebook about what’s allowable and what’s off-limits could possibly be more damaging to free speech principles than a federal law making the same decision. That’s especially true since sites like Facebook can make their decisions in private, without anyone realizing what they’re doing.
http://source4politics.blogspot.com/2011/06/rights-principles.html
St. John Smythe - June 1, 2011 at 11:38 pm
You suggest that “schools . . . can regulate their members’ speech in order to fulfill the institutions’ purposes,” but I am not sure that is quite right. In the most recent student speech to reach the Supreme Court, the Court explicitly rejected an argument to that effect. Justice Alito, whose vote was necessary to form a majority, explained this point in a concurrence joined by Justice Kennedy:
The opinion of the Court does not endorse the broad argument advanced by petitioners and the United States that the First Amendment permits public school officials to censor any student speech that interferes with a school’s “educational mission.” See Brief for Petitioners 21; Brief for United States as Amicus Curiae 6. This argument can easily be manipulated in dangerous ways, and I would reject it before such abuse occurs. The “educational mission” of the public schools is defined by the elected and appointed public officials with authority over the schools and by the school administrators and faculty. As a result, some public schools have defined their educational missions as including the inculcation of whatever political and social views are held by the members of these groups.
During the Tinker era, a public school could have defined its educational mission to include solidarity with our soldiers and their families and thus could have attempted to outlaw the wearing of black armbands on the ground that they undermined this mission. Alternatively, a school could have defined its educational mission to include the promotion of world peace and could have sought to ban the wearing of buttons expressing support for the troops on the ground that the buttons signified approval of war. The “educational mission” argument would give public school authorities a license to suppress speech on political and social issues based on disagreement with the viewpoint expressed. The argument, therefore, strikes at the very heart of the First Amendment.
Morse v. Frederick, 551 U.S. 393, 423 (2007) (Alito, J., concurring). Tinker’s substantial disruption test still leaves some room for schools to impose speech regulations designed to further institutional goals, but a few recent appellate decisions cast doubt on how far the disruption rationale can go in terms of combatting garden variety online harassment.
This is really an aside given your focus on private sector intermediaries, but it struck me as an important one nonetheless. I suppose I find it important because what strikes one person as “cyberharassment” might well be core political speech to another. I gather your work will have far greater impact if you acknowledge this reality in your recommendations.
Ari Waldman - June 2, 2011 at 2:17 pm
Mr. Smythe. Thank you for your comment! And I agree with your assessment. My wording in the post suggested a kind of absolutism that I do not see in the opinion other than in student-speech concurrences from Justice Thomas (very much like Justice Black’s thoughts in Tinker). But, a teleological exception to the traditional liberal free speech values does not require absolutism or no limits on the school’s ability to decide what is its purpose. But, your point is spot on and most appreciated!
Gordon Hull - June 3, 2011 at 9:32 pm
I take it that one easily formulated argument says that allowing various platform sites to regulate speech by their members advances free speech by fostering associations and communities in which like-minded members feel comfortable talking to one another, etc. etc. There’s two obvious problems with this approach. One is the risk of group polarization and insularity, along the lines that Sunstein talks about. The other – and I think this is more interesting, given where it sounds like you’re going – is what to do when the sites are big enough that they become nearly public, or semi-public. FB is a good candidate here; as danah boyd says in one of her blog posts, FB presents itself as a utility, which suggests that one might regulate it as such.
The normative argument here is pretty straightforward – if we want to foster inclusive communities, and if those communities arise through sites like FB, then sites like FB ought to either be compelled to be inclusive, or to self-regulate in that direction. But the legal argument is not going to fare as well – recall ALA, where the Supreme Court endorsed a federal law requiring public libraries to install filtering programs; these demonstrably had disparate impacts on minority groups (well, maybe not demonstrably – but I think the case is pretty good: LGBT sites would be blocked at much higher rates than others, for example). Part of the court’s rationale was that the Internet couldn’t be considered a public forum in the relevant sense. So encouraging self-regulation is fine, but it’s going to be hard to impose any sort of governmental stick: direct regulation of intermediaries obviously isn’t going to work (newspapers have the right to an editorial opinion, etc.), and even indirect regulation seems to fail in the case where it would be most important.
In other words, I think your argument implies that some case law is pretty wrongly decided – but I’m not sure how to square the case law with any policy proposal other than encouraging self-regulation, which strikes me as unlikely to work.
Final, quick thought: if you want an Aristotelian alternative to Rawls, one that gets at a more substantive notion of political participation, you might try the capabilities approach out of people like Martha Nussbaum. I don’t know if that’s been done here, but she generates substantive versions out of a lot of Rawlsian rights. There’s issues with her work, but I think it might have some traction on topics like this.
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