In evaluating the comparative rhetoric of free speech and civil rights, it’s important to note that there are compelling free speech arguments on both sides of this debate. It can certainly be argued that impinging on anonymous speech constitutes a burden on free speech (as Prof. Kim rightly notes, only to the extent that the communication in question constitutes protected speech). A very similar argument, however, can be marshalled on the other side. When online harassment is allowed to continue unabated, its targets are silenced — not because of legal pressures, but because of the escalating spiral of threats that online harassment has often lead to (cf Kathy Sierra).
In fact, the first amendment implications reach well beyond the actual targets of the speech. When we consider the civil rights frame that Prof. Citron has proposed, we are worried not only about specific attacks, but also the risk of making the Internet as a whole an inhospitable/threatening place for members of targeted groups (especially, in this case, women). This development imposes dramatic burdens on the speech of members of these targeted groups. If speaking out as a woman online means you must risk being attacked, threatened, and harrassed, it doesn’t take much analysis to conclude that women will be less likely to participate in the online public sphere. This is particularly troubling because the groups that stand to benefit the most from the Internet are those groups that face social discrimination offline. Allowing online harrassment to keep members of such groups from speaking online threatens one of the Internet’s strongest first amendment potentials — allowing those who might otherwise be unable to express themselves to speak online.
It’s true that the rhetoric of free speech has been employed in this debate heavily by those looking to minimize the impact of online harassment. That doesn’t mean that those of us who see online harassment as a pervasive problem should cede the rhetoric of free speech to the other side, however. In particular, I think articulating the harms caused by online harassment through both the lens of free speech and civil rights is central to validating efforts — legal or normative — to address them.