Over at Concurring Opinions, a fascinating “symposium” is taking place to discuss Danielle Citron’s proposal to change the “wild west” of the internet in defense of Cyber Civil Rights, the proposition that anonymous attacks online disproportionately harm women and minorities, and therefore require alternative means of controlling free expression online.
It’s a curious symposium at the outset, as the issue had earlier been joined in a rather robust debate on NPR with Citron, Marc Randazza and David Margolick. But the participants in this debate were handpicked to avoid the fracas that challenged the underpinnings of Citron’s theory, leaving out the more vocal critics and including mostly those voices that produce a beautiful four part harmony. A few squeaky voices did find their way into the choir, notably Orin Kerr (who realized off the top that he was included to offer “mild dissent”) and Michael Froomkin (who fears “I may have been set up to be the pig at the garden party”). Still, the tone remains sweet and mild, consistent with the academic need to remain collegial.
For the most part, the symposium neither seeks, nor permits, dialogue outside of the selected few. Most of the posts at Co-Op do not permit comments, Ever the evil genius, Ann Bartow of Feminist Law Profs, who I’m sure comes to this symposium with an open mind, makes a pre-emptive attack in her opening post:
Many participatory sectors of the Internet are dominated by aggressive bullies, nasty haters and monetizing opportunists. It’s hard to tell whether they constitute a numeric majority, but the geography of the Internet allows a small number of people to scorch vast swaths of earth with surprisingly little effort. There is no currently such thing as the “safe spaces on the web where those with unpopular views can exchange ideas without fear of retribution” that Frank Pasquale calls for. Not even here. The folks running this symposium decided not to facilitate comments on CCR related posts here at Concurring Opinions, but they have no control over the conversations that take place other places, which may be intractably linked to this blog via hyperlinks and search engine results. I’m doubtful that the architecture of the Internet can be changed to provide the benefits of connectivity without simultaneously facilitating engagement or intervention by bad actors.
By the mere act of linking to the CCR posts, others (myself included) are “aggressive bullies, nasty haters and monetizing opportunists.” Bartow’s never been one to tolerate any opinions other than hers, and she is well rehearsed in the art of simultaneously painting herself the victim even as she lashes out.
The gist of Danielle Citron’s theory begins with the proposition that woman and minorities are disproportionately victimized by vicious anonymous online attacks and threats of real world harm, which both extends beyond mere bad speech into a metaphysical punch in the face and the inhibition of free expression by the victims due to the excess of free expression by the attackers. This is supported by anecdotal evidence and studies of dubious value, though most of the symposium participants have accepted this part of the proposition without any critical thought, since it’s consistent with their sensibilities and academic orthodoxy. It’s a value judgment, and few in the Academy are inclined to be naysayers whenever women’s victimization is at stake.
The proposed remedies are summarized by Foomkin :
Prof. Citron begins her remedies discussion with the suggestion that ISPs be stripped of § 230 immunity for postings by others, in the hopes that this will force them to police their customers. She proposes that they be subject to distributor liability – that we move to the takedown regime we have come to know and love under the DMCA. To which one can only reply…huh?
But never mind that: The core proposal is to set the duty of care for ISPs seeking not to be held responsible for their customers’ writings at a level that will required them – by law – to keep records of users’ IP numbers. In short, in order to serve the goals of deterrence and enforcement, Prof. Citron proposes the complete elimination of anonymity on the US portion of the Internet in order to root out hateful speech.
Let me repeat: Professor Citron proposes the complete elimination of anonymity on the US portion of the Internet in order to root out hateful speech.
Since the only method of identifying and reaching the anonymous bullu is through the intermediary, Citron proposes that duties be imposed on the rest of us, websites, blogs, whatever, that would require us to police the internet, maintain records of our anonymous commenters, upon pain of liability to those who believe they have suffered a rhetorical “punch in the face” by the bully’s comment.
As might be expected, much of the commentary at Co-Op consists of effusive praise of the decorations on their own bandwagon, with little desire to question the underpinning of Citron’s assumptions. Indeed, many posters begin their thoughtful appraisal with statements like:
Danielle Citron presents compelling reasons for applying civil rights laws to online conduct.
Professor Citron’s Cyber Civil Rights makes several important contributions to our understanding of the relationship between speech and equality.
Danielle Citron’s article does a great job of reframing the question of online anonymous speech into an appropriate broader context.
For the most part, Danielle Citron’s work on cyber harassment has me convinced.
For me, the most important part of Danielle Citron’s paper is right there in the title: the way she frames online harassment specifically as a civil rights problem.
In contrast, Orin Kerr has swiftly pointed out the obvious, that this is a Battle Royale of rhetoric, with its warriors simply reserving their devotion for the value they hold most dear.
[I]sn’t Danielle’s article trying to use rhetoric against rhetoric? It seems to be that one side of this debate makes its case (rightly or wrongly) using the rhetoric of free speech. Danielle’s article tries to make its case (rightly or wrongly) by countering this rhetoric using the rhetoric of civil rights. Or to put it another way, one side of this debate sees free speech under assault; the other side sees civil rights as under assault. Or so it seems to me.
So the problem devolves to which threat is predominent in the hierarchy of academic concerns. It also explains why the participants were so carefully selected.
This symposium will be going forward for the next couple of days, and it’s quite possible that despite the effort to muzzle nasty outside voices (like those of us who would bear the consequences of Citron’s concern for womenhood), the “mild dissenter” or even the “pig at the garden party” may be pushed by the gushing acceptance of unproven assumption to firm up their positions and challenge the chorus. If nothing else, it should be interesting, particularly given Ann Bartow’s closing salvo from her first post:
In my view, the Internet is setting back the cause of women’s equality. I’ll explain this further in my next Symposium post.
I’ve no doubt she will, and I can’t wait to find out why.