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Author: Nathaniel Gleicher

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CCR Symposium: Rhetorically Speaking

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.

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CCR Symposium: Legal Responses to Online Harassment

Danielle Citron’s article does a great job of reframing the question of online anonymous speech into an appropriate broader context. James has already posted about this, so I won’t reiterate his excellent points. The question that it leaves us with – how the law might be adjusted to incorporate these concerns – is a tricky one, however. It is particularly challenging because anonymity both shields anonymous attacks, and protects targeted minorities. Similarly, exposing anonymous harassers can both chill their speech, and protect the speech of their targets (and their targets’ communities), who might otherwise be silenced by threats. I can think of three broad options for a legal response – leave the system as it is, make individual speakers easier to find, or increase liability against conduit websites. Each of these solutions carries its own risks, and none seems like a perfect response…

First, we can retain the system as we have it now. By this I mean websites and most ISPs are not required to store identifying information about posters, and targets of online harassment must file John Doe subpoenas to uncover the identity of their attacker (assuming this is possible) before proceeding with a lawsuit. This system provides uncertain protection for the targets of online harassment, meaning that women and minority groups will continue to find themselves threatened and potentially muzzled online. As Citron notes, this environment can lead to very real structural effects, where not merely the targets, but everyone who identifies with the targets may find the Internet an increasingly inhospitable place.

Further, it provides inconsistent protection for anonymous speech online. Those who are aware that they are engaging in illegal behavior can take steps to ensure that their identity is virtually impossible to determine. If an egregious defender takes steps to shield himself, he will likely not be held liable. Thus, targets of online harassment can often uncover only those the posters who didn’t think their speech was problematic in the first place, or simply didn’t understand that they could be tracked. The worst violators get away free. As more and more lawsuits demonstrate that posters who don’t take such precautions can be caught, the distance between those who are caught and those who escape will grow greater. Already, John Doe lawsuits tend to uncover and punish the middling offenders rather than the most extreme. As a result, the current regime doesn’t provide consistent protection for anonymous speech, or for the targets on online harassment.

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