After the first day of backslapping Danielle Citron’s “thought provoking” article, Cyber Civil Rights, about turning cyber bullying into a civil rights issue and thereby imposing duties and liability on everyone she could get her hand to safeguard the genteel sensibilities of delicate flowers, the Cyber Civil Rights Symposium at Concurring Opinions turned out to be a far more robust discussion of issues than anticipated.

“Robust”, for those of you who don’t know the secret handshake of the Academy, is the nice way of saying that a few bold lawprofs stepped forward to challenge the chorus of the faithful who, by the mere mention of sexist roots of cyber bullying, could not bend over far enough to support Citron’s proposed remedies that would fundamentally alter freedom of speech online to protect the assumptively female victims.  Let me tell you, it isn’t easy keeping to the sweet, collegial tone demanded by the lawprofs, as the simple yet comprehensible language employed by, oh, say litigators for example, is far too brutish for their intellectual eyeballs.  It made some cry, I think.

A few standout points were made during the three days of whine, women and closed comments.  In a triad of posts, David Robinson addressed the technological infirmities of Citron’s proposed “easy” solutions, including IP logging, screening software (filtering) and differentiated expectations for different internet entities.  Robinson points out how the proposed technologies to solve the problem follow “a long and unfortunate tradition of wishful thinkers” who believe that magic software can do anything. 

Orin Kerr and Devan Desai square off over the use of rhetoric to push this agenda, with Desai arguing:

Civil rights has a certain logic and power. So does free speech. As Nathaniel noted, one can nonetheless find aspects of each position that map to the other. Yet, let me be clear, rhetoric is not and cannot be about adopting a frame. That idea makes little sense. Framing reveals some, but it cannot by itself control thoughtful engagement. Put differently, the power of Danielle’s paper is that it challenges. It forces one to ask the questions that have arisen throughout the symposium. It presents a view of the world that for some is quite accurate, but for others seems unfounded. That is the beauty of the endeavor; it makes one think.

But Kerr opens a window and clears the air:

Deven is surely right that rhetoric isn’t necessarily a bad thing. After all, we’re all lawyers here, and every lawyer uses rhetoric to frame arguments. It’s a basic tool of persuasion.

At the same time, rhetoric can be highly audience-dependent.

In this case, I wonder if the”civil rights” rhetoric has a narrower audience than some of us think. The rhetoric may have a great deal of power to some audiences, be more or less neutral to other audiences, and even perhaps have a negative connotation to others.

In other words, the language of sexist victimhood may not play as well in Peoria as it does in the Academy, where lawprofs will trample each other to get to the head of the line of the faithful.

One of my favorite posts in the series was by David Fagundes, which spoke to the far more fundamental separation of approaches argued way back in 1996:

Easterbrook’s essay, “Cyberspace and the Law of the Horse”, came out in 1996, and as the title suggests, the judge took issue with the idea that cyberspace should be treated by lawyers and academics as a sui generis field. Easterbrook argued that regulating cyberspace with extant legal mechanisms was sufficient, and that there was no more need to offer “the law of the internet” course in law school than there was to offer “the law of the horse”.

Lessig’s 1998 response, “The Law of the Horse: What Cyberspace Might Teach”, unsurprisingly took a more sanguine view of the internet as a distinct subject for legal study. While Lessig did not call for an entirely separate and distinct body of regulations to govern cyberspace (as some scholars at the time did), he did argue that studying the internet could impart distinct lessons about separation of powers, transparency, and the tailoring of law that any other subject matter (e.g., horses) could not.

This struck a nerve with me given my view that search and seizure law in the cyber age would do better with a sui generis approach, though the horse clearly won the race here.  But Fagundes’ point provides a great paradigm for consideration of issues arising from our beloved new technologies from minds that were way ahead of mine.

Surprisingly, one of the most controversial aspects of the Symp turned out to be the decision of the organizers to close comments, the default for every post requiring individual participants to make the active choice to open comments on their individual posts if that’s what they wanted.  It all turned sour with Michael Froomkin turning his comments on and letting the Philistines have their say.  And “say” they did.  Surprisingly, it turns out that not all lawprofs were afraid to express reservations and disagreements, though they did so in that peculiarly pedagogical way that makes a skunk smell sweet and makes litigators shake their heads. 

Of course, Randazza was front and center, writing with his typical robust clarity, which threw some into a tizzy.  The proposed “better practice” was to cease the rhetoric of “lies and distortions” in preference of “differences of interpretation.”  This generated a retort from Seth Finkelstein :

Well, the problem there is that “differences of interpretation” can cover much rhetorical mischief – in the limit, doesn’t this converge to the absurd, that if someone “feels” a certain way, that’s their interpretation, and hence indisputable? Then isn’t it just making ideologues unfalsifiable?

I too don’t understand why so many people are gushing over warmed-over Mackinnon-Dworkin with “cyber” tacked on to it. And let’s put it this way – inasmuch as someone might grant there is such a thing as objective reality, the paper has disturbing variances from it (if you don’t believe such a thing exists, then it’s kind of pointless to talk about scholarship in the first place).

But even lawprofs outside the selected participants found the closed circle on such a controversial subject disturbing. At PrawfsBlawg, Paul Horwitz called the closed circle out:

Of course, much commentary can be unhelpful and unduly emotional.  But that has not usually been a particular problem on CoOp, and I don’t think the comments on the posts that have left the comment option enabled have suggested otherwise.  And of course the fact that some skeptical writers have been included in the symposium means some contrary points of view are aired even if no commenters are invited to the party.  But the whole thing leaves me feeling quite odd, for few reasons.  First, I think it weakens the quality of the public discussion of the symposium, in a way that’s at odds with the usual norms of CoOp.  One of the original posts in the symposium argues that the editors thought that, “for this topic in particular,” the costs of allowing comments would outweigh the benefits.  I don’t think the results have borne that out; whether or not it was intended, the posts that don’t allow comments have an air of ipse dixit, and a kind of “shut up, he explained” attitude toward readers who might disagree, while the posts that allow comments have provided for a more thorough and sensitive airing of the issues.

So what were they so afraid of?

Those people who are most worried about the potential for “abusive” disagreement have also been, in my view, the symposiasts who have made the most sweeping, tendentious, and unsupported claims, both empirical and normative, in support of their arguments.  That makes their “arguments” more like assertions.  It not only prevents their arguments from being as strong as they could be — for, in saying they are making the most tendentious and unsupported arguments, I am not saying they are necessarily making bad arguments — but it also suggests, ironically enough given the topic, that those individuals who are making the claims that most demand heated disagreement are the same people who, on the one hand, fear being openly and heatedly (or “abusively”) contradicted, and on the other would enforce this fear through legal means.  

The easiest way to protect “sweeping, tendentious and unsupported” assertions is to preclude anyone from challenging them.  Ironically, in the comments to Horwitz’s post some of the participants who chose to close comments wrote in their own defense:

James Gimmelman explained that he kept comments closed because of “a small but significant chance that the trolls will descend.”  Trolls on Concurring Opinions?  It’s like someone from Iowa in the 80s refusing to go to New York because of all the muggings he heard about on TV. 

Bruce Boyden explained:

We’re talking about the AutoAdmit crowd here. I think it’s pretty easy to say that someone else should subject themselves to such abuse. If they want to, fine, but I don’t think there’s any obligation.

No obligation indeed, but that does little to either explain why the feared “Auto-Admit” crowd would know about or could care about what the symposium.  Like the bogeyman trolls, this bizarrely far-fetched fear of attack offered more rationalization than rationale, particularly when it devolved into the strawman “obligation” argument.  No one claimed a duty to allow comments, but rather the refusal to do so demonstrated that the sound of the chorus couldn’t survive Simon Cowell.

Former Feral Child cum Popehatter Patrick then spoke the obvious, when he noted that moderation of comments was always available, should things get out of hand.  But Dave Hoffman jumped in with both feet to save the day:

It’s not clear to me why I ought to waste my time responding to such childish, insecure, nonsense. But I guess that some people (Paul?) would find all commentators to be constructive & useful dissenters, and the symposium poorer for not universally welcoming them. My view is that it’s a large internet. We invited a cross-spectrum of voices to post, but we didn’t – and never have – opened our blog up as a public forum. I’ve always moderated my comment threads, pruning them of fools.

Perhaps it has something to do with the possibility, even greater than a horde of trolls, that some comments might be constructive and informative? So much for lawprofs avoiding ad hominems at all costs.  While I am painfully aware of my inability to employ the tactful language of the Academy, falling into the wasteland of practitioners who clumsily struggles to find words to express my simplistic pedestrian thoughts, I still would like to pretend that I have something to add to the intellectual oligarchy that has resigned itself to curing all ills by converting them into sacred cows and thereby justifying their placing the burden of their favorite values on my back.  But I’m just a Luddite lawyer (with a love of alliteration), so what could I possibly add?

In the end, the symposium was quite enlightening, with a handful of “mild dissenters” doing yeoman’s work in countering the arguments that would largely have flown unsupported had there been no skeptical voices.  In the post where comments were permitted, some vigorous and well-justified challenges were raised that would never have been heard otherwise, and those who had no fear of scrutiny demonstrated why a full public vetting of such controversial proposals as Citron’s is necessary.

There was, alas, one huge disappointment.  As readers will recall, Ann Bartow promised on day 1 that she would explain “in her next post” why “the Internet is setting back the cause of women’s equality.”  Bartow was never heard from again.  I hope she wasn’t kidnapped by some sexist Auto-Admit troll.  That would be horrible.  But it may be the case, since I otherwise couldn’t imagine that wild horses would drag her away.

Update:  Danielle Citron, erstwhile proprietor of Cyber Civil Rights, has emerged from an undisclosed location to express her thoughts on the symosium.

In the late 1970s, society made a judgment that threats of sexual violence and comments reducing women to sexual objects in the workplace constituted a pernicious form of sex discrimination, one that unacceptably interfered with women’s employment opportunities in a manner that the First Amendment does not privilege. That normative and doctrinal judgment remains true today and it has much to teach us about the harassment of vulnerable individuals online, especially women. Just as the harassment of female employees with pornographic images in the workplace and sexual taunts inflicts serious economic and social costs, so, too, does the flooding of a female blogger’s income-generating site with pornography (and/or rape threats) and shutting the site down with denial of service attacks. This, I believe, must be part of our thinking about the problem of cyber harassment of individuals from traditionally subordinated groups.

Flooding a female blogger’s income generating site with pornography?  Say what?  Glad she doesn’t just make stuff up.  And as for the process:

The probing discussion of website operators’ standard of care and anonymity were illuminating and important as were the critiques of the expressive value that law can play in combating cyber gender harassment, the subject of my current work. These insights will no doubt have an indelible mark on my future endeavors. And I also wanted to thank those who gave me feedback via email and comments: it was open-source academics at its best.

I am thankful I have no clue what she would mean by closed-source academics.  And there you have it, straight from the horse’s mouth.