Author: Ari Ezra Waldman

2

What a (Gay) Week!

Amidst feverish work on my current paper, I’ve been trying to keep up with the latest developments in gay rights. And, this week was quite a doozy. On Monday, the proponents of the anti-gay marriage Proposition 8 in California argued that the district court’s decision declaring Prop 8 unconstitutional in Perry v. Brown (previously, Perry v. Schwarzenegger) should be vacated because Judge Vaughn Walker, the now-retired judge who presided over the original trial, is in a committed long term relationship with another man and failed to disclose that fact at trial. Judge Ware heard arguments, questioned the proponents incredulously and issued the expected smack down the next day. Remarkably, the Prop 8 proponents are planning to appeal.

Also on Monday, 20 bankruptcy court judges in California’s Central District declared DOMA Section 3 unconstitutional, finding that none of the post hoc justifications for the federal government’s intrusion into state marriage law survived heightened scrutiny.

Then New York Governor Andrew Cuomo and his team stepped up efforts to pass a law that would allow gay couples to marry in New York. Three Democrats in the normally-dysfunctional who voted against same-sex marriage in 2009 switched to yes. Then one Republican, and then another Republican, putting the total number of supporters in the Senate at 31 (32 are needed for passage). Pro-gay rights Mayor Mike Bloomberg, the single largest contributor to New York State Republicans over the last decade, then spent his Bloomsday (haha!) in Albany, lobbying Republican Senators for support. Ted Olson, who along with David Boies is representing the pro-gay marriage side in the Perry case, then wrote an open letter to New York Republicans, pushing the conservative case for gay marriage.

I’ve spent my free time calling Republican senators on the fence, thanking Democrats and Republicans who are already on board and starting a Facebook group that asks people to commit to donating money to the campaigns of any Republican senator voting in favor of same-sex marriage.

I am torn between a feeling of inevitability — this week saw a lot of dominoes falling on the arc of progress — and a sense of frustration — Jews, Catholics and others taking to the Senate floor to call me and my brethren “diseased,” “errors in God’s plan” and “radical homosexual Nazis who wants to destroy religion.” Pleasant. I especially love the “errors in God’s plan” canard when coming from a man like Dov Hikind, an Orthodox Jew, who believes God can’t make mistakes. But, that is another story.

But my feelings are not why I’m writing today — I’ve written about that here. Two legal aspects strike me:

1. Same-sex marriage in New York would be important for a few reasons. There is no citizen initiative process in New York — a constitutional amendment would require a vote of the legislature, as would a constitutional convention. Passage of a gay marriage bill would more than double the number of citizens living in pro-gay marriage states and affect more then double the number of gays. All of this means that gay marriage in NY is a big step forward. And, for those judges — from immigration judges all the way to SCOTUS — looking for political cover, not wanting to get too far afield from public opinion on any given controversial issue, NY would be a powerful step toward recognizing that gay rights is not the wedge issue Karl Rove and the now-openly gay Ken Mehlman made it out to be. Many scholars have written about the political forces behind court decisions, but I wonder what you think a gay marriage victory in NY would mean for gay marriage lawsuits nationwide? I happen to think that President Obama’s heightened scrutiny decision regarding DOMA Section 3 will have a greater impact, but NY is the center of the universe, so it must have an impact, too. :)

2. This would be same-sex marriage via legislative vote. I am often asked why it is appropriate to put my marriage rights up for a vote, by a legislature or the people, when everyone else’s right to marry was never up for a vote. That’s fair, but not entirely accurate — state legislatures have changed their marriage rules many times over the last 230 years. In any event, the point is that some believe our rights should not be subject to the fleeting political whims of fickle voters. And, that is certainly a reason to oppose citizen initiatives, in general. Others believe that a multi-pronged strategy for gay rights — in the political arena, in the judicial arena and in the court of public opinion — is the best way to find success. I’ve had this conversation with my readers over at Towleroad for some time, but the sharply leftist commentators do not represent the gay public, nor does the gay public represent the views of a wider set. How would you react if your right to do x or y were up for a vote and could be taken away just as easily? To what extent is the preference for judicial rulings a remnant of a yearning for the Warren Court’s judicial intervention on behalf of minority rights? Or, to what extent are over-thinkers like me missing the point?

Most importantly, the NY Senate has yet to pass any same-sex marriage bill. I hope this week gets even more exciting!

9

You Know It’s Me

An important part of my current (and, to me, really exciting) project is the concept of anonymity on the Internet, or lack thereof. Co-Op’s own, Daniel Solove, whose amazing work I have devoured poured over and over read and analyzed many times, has written about this at length, coining the term “traceable anonymity” to refer to this one element of privacy vis-a-vis our Internet selves — I could call myself “youwillneverknowitsme” on my Wikipedia account, but Jimmy Wales could know it’s me by following my IP address.

Traceable anonymity seems to me the baseline for Web 2.0, with the Internet only getting less anonymous as we progress to newer and even more exciting technologies. Social media, for example, already despises anonymity: Facebook has more than 500 million users; 1 in 5 relationships begin through online dating sites, none of which are anonymous; an increasing number of media websites are requiring their users to log in and provide a valid email address in order to comment on posted news stories; and even interactions that might start out anonymous can end in picture and email exchanges, both of which link your online self to your physical self.

The most basic debate is whether this is a good thing. That fascinating discussion is probably more about our individual values than anything else. But, there are at least two more interesting questions (at least to me):

First, is no anonymity the same as no expectation/right of privacy? I don’t think so, though this is a topic I have just started thinking about and reserve the right to change my mind when I learn more and smarter people teach me more. Sometimes privacy means anonymity — John and Jane Doe filings for domestic abuse victims, for example, a topic that Co-Op’s own, the fantastic Danielle Citron, has worked on. But, privacy is not always synonymous with anonymity, as such. We have privacy rights in our person, but the existence of those rights does not depend on us being cloaked from the law entirely.

Second, what are the costs of less (or no) anonymity? One of the frustrating things about online hate and harassment is that it is cheap — there are no transaction costs to hate and little personal and contingent costs after harassing. In other words, it is safer to harass online than in person. The less anonymity, then, the higher the costs of harassing, and that might be a good thing. I could also argue that less anonymity raises the costs of online speech, in general, by snuffing out robust online conversations about politics. But, what exactly would be snuffed out? Things you would never say in person? Again, maybe that’s a good thing.

Of course, I am playing a little bit of the devil’s advocate here, but the conversation is worth having.

Another tid bit I find worth discussing.

When I discuss this lack of anonymity on the Internet with others, I notice a pattern. Older interlocutors, say over 40 (though let me be clear: I do not consider 40 to be “old”) generally agree, but never really thought the Internet was anonymous to begin with. My peers, say 26-40, are the most agreeable. We remember when American Online had chat rooms that you could enter anonymously after creating a pseudonym (thanks to Co-Op reader and hopefully future prof AG for reminding me about that) and have seen the Internet change over the years. But, kids today, say under 25, do not have any conception of anonymity on the Internet. Even if they have a pseudonym here or there, they nonchalantly say something like this: “oh, yeah, ive given people my email or shown them my pictures, im sure they could find me if they wanted.” I am no English major, but that’s hardly what Walt Whitman thought of when he referred to “perfect nonchalance.” At a minimum, that cavalier behavior is something we as parents/aunts/uncles/grandparents have to deal with when our young charges start spending time online.

6

Another Day, Another Sexting Politician

My first reaction to Congressman Anthony Weiner’s admission was, “Oh… my… god!” My second reaction was to laugh — no matter how old we men get, we are all still 12 year old boys inside — and think of a post filled with double entendre. My third reaction was to wonder what this deeply unfortunate story means for tech law.

(NOTE: Any double entendre is purely unintentional! My mother reads these things!).

Brooklyn Congressman Anthony Weiner, a man I have had the opportunity to meet and even challenge to running race, first alleged that his Twitter account had been hacked, then maintained that he did not send the tweet but the image could have been of him and then, finally and mercifully, admitted that he sent the tweet and was carrying on “inappropriate relationships” with “several” women that he met online. Minority Leader Nancy Pelosi has called for an ethics investigation, conservative pundits are calling for the Congressman’s head and the rest of us are probably unmoved. We live in a world where Eric Massa, Christopher Smith, Mark Foley and so many other politicians are sexually crazed and hooked into a virtual world they either do not understand or are simply too arrogant to care about.

Weinergate has obvious lessons on the perils of throwing no caution to the wind regarding your Internet presence. It also reminds us that some men in power tend to lose their grip on reality. But, you do not have to be in Congress to be victimized by careless, stupid digital behavior.

If one divorcing spouse wanted to prove infidelity, perhaps as part of denying a 50/50 split of marital assets, text messages, emails and self-taken photographs on the other spouses cell phone, Twitter history and email inbox may be fair game. Just last year, a New York state judge in part used evidence of a man’s sexually charged conversations with various women online to deny him child custody. Notably, there had been no evidence that this man ever met any of these women in person or committed any sexual act. He messaged them online, adding jpegs of himself. Another judge in New Hampshire refused to use evidence of a divorcing spouse’s virtual interactions without evidence of an actual affair outside the digital universe. Family court judges have wide latitude in this area, but what are your thoughts about these cases?

Outside of the family law context, lewd online behavior can trigger morality clauses in contracts. Assuming for the moment that morality clauses — provisions in contracts that restrict certain elements of or behaviors in a party’s personal life — are even enforceable, sending a lewd photograph of yourself to “several” women with whom you are having “inappropriate relationship[s]” could be grounds for dismissal.

The operative question is whether evidence of digital hanky-panky, without even a hint of actual infidelity or inappropriateness in real life, is enough wrongdoing in these and other contexts. It seems incongruous to simultaneously recognize the pervasiveness and salience of digital interaction today and still diminish the importance of digital inappropriate behavior below face-to-face conduct. We are both virtual and physical beings now. Excusing a person’s bad conduct in the former simply because it happened through packets of 1’s and 0’s on the Internet seems antiquated and a recipe for a blind spot in social norms.

4

Insight From San Franciscans

Greetings from San Francisco. I am here delivering a paper and chairing a panel at the Law & Society Conference (both are about technology, but more about that in a future post) in a fortuitous bit of travel that makes posting about the circumcision ban apropos. Alas, my amazing colleagues on this site have spoken so well on this topic that I was content to offer my thoughts to my regular Towleroad readers yesterday. The post was mostly about the federal constitutional arguments should the ban pass, but the topic elicited high pitched emotions from the small sampling of the gay community that has the time and inclination to post comments online.

Admittedly, I was shocked at my commentators’ near-unanimity in support of the ban, and that’s not even including those who simply attacked the motives of their opponents and used the kind of rhetoric that Dave Hoffman advised against here. Circumcision may have special cultural significance in the gay community, but if so, that’s news to me. So, I decided to test the theory.

When the post reached near 100 comments, I took a friend to the Castro district, a historic gay enclave, put on a nice shirt and my best smile and asked random passers-by about their opinions on the ban. In a few hours, I spoke to nearly 85 people, 80 of whom identified as gay, lesbian, bisexual or transgender. My friend spoke to 53 people, all of whom identified as LGBT. (By the way, that shocked me, as well. Does no one else visit the Castro? Or did we subconsciously self-select? Or were gay people drawn to a gay guy?). I asked very simple questions:

1. Do you support the proposed ban on circumcision of males under the age of 18?

2. Why? What’s your reasoning in one or two sentences?

This sample is also small and I could not very well ask Likert questions and do a regression analysis in time, so we must take the results with a healthy dose of salt.

Of the 133 LGBT respondents, only 19 supported the ban. The quantitative and qualitative results conformed to my expectations.

The 19 in support used words and phrases like “male genital mutilation,” “like the horrors of rape,” “Jews need to modernize,” “trauma,” “I will never forgive my parents,” “dehumanizing,” and so on. A few also decided to register their personal sexual preferences.

The 114 opposed to the ban used words and phrases like “parents should decide,” “parents make decisions for their children all the time,” “its not a big deal,” “why do we have to keep banning [bleep],” “live and let live,” “if someone wants to do it, who am I to say no,” “why should I get involved in how you raise your children.” More than a few also registered their personal sexual preferences, but there was little correlation between those who volunteered that they were circumcised, or preferred circumcised partners, and those who opposed the ban.

I expected this libertarian streak, if only because I see it in my students when I teach gay rights. Students who support marriage equality, for example, offer libertarian legal and policy arguments as to why marriage equality is constitutional and why it is a good idea. They decry conservatives’ interest in what they, or their gay friends, do in their bedrooms. They wonder how marriage equality can really affect anyone else. These views and questions make sense, and while I have some sympathy for the perspective, I always push back for pedagogical purposes, to make them offer constitutional and precedential arguments rather than just giving me their policy preferences and because it is hardly the best argument for marriage rights.

Libertarianism is like a Monet: it seems awesome from afar, but the devil is in the details. I find myself fighting against its implications in my scholarship and in conversations with students.

In your teaching experiences in any subject area, do you see increasing libertarianism in your students? For those who teach classes about minority and gender rights, are your students libertarians?

5

Cyberharassment’s Waterloo

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.