It goes without saying that we all love the first amendment. Free speech. Who doesn’t love free speech? Unless, that is, it conflicts with something else we love, in which case free speech is the first thing to go. Isn’t love fickle?
Over at Concurring Opinions, there has been debate over the order compelling Google’s disclosure of the anonymous blogger at Skanks in NYC. As I noted when Liskula Gentile Cohen, the target of the blog, began her quest for the identity of her detractor, our right to free speech always seems to fall to the lowest scuzzball around. The anonymity argument, likened to Publius by default, strains the bounds of tolerance. The Skank blogger, now disclosed to be 29 year old Rosemary Port, who believed that Cohen had bad-mouthed her to Port’s boyfriend, was outed by Google per court order.
The debate began when Dan Solove challenged the court’s reliance on too low a standard for disclosure:
Over at Concurring Opinions, there has been debate over the order compelling Google’s disclosure of the anonymous blogger at Skanks in NYC. As I noted when Liskula Gentile Cohen, the target of the blog, began her quest for the identity of her detractor, our right to free speech always seems to fall to the lowest scuzzball around. The anonymity argument, likened to Publius by default, strains the bounds of tolerance. The Skank blogger, now disclosed to be 29 year old Rosemary Port, who believed that Cohen had bad-mouthed her to Port’s boyfriend, was outed by Google per court order.
The debate began when Dan Solove challenged the court’s reliance on too low a standard for disclosure:
I believe that the court used too low a standard in revealing the blogger’s identity. The court ordered Google to reveal the anonymous blogger because “a strong showing that a cause of action exists.” This standard appears to be little more than requiring the plaintiff to survive a motion to dismiss. While I’m very sympathetic to people who have been injured through online defamation and invasions of privacy, I’m also wary of courts being too quick to reveal the identities of bloggers. I believe that in order to reveal a blogger’s identity, plaintiffs must meet the summary judgment standard, as set forth in Doe v. Cahill, 884 A.2d 451 (Del. 2005).
Then Kaimipono Wenger jumped in, noting the obvious: that Rosemary Port ain’t no James Madison. That’s for sure. But does it matter?
Because, of course, the flip side of anonymity is that it can open the door to uniquely problematic personal attacks. This problem is set out in Danielle’s article Cyber Civil Rights, where she examines cases where anonymity was used as a shield to allow malicious online mobs to harass innocent victims, who tend to be disproportionately female. (And of course, the privacy sword cuts both ways here as well — it is a rather egregious invasion of privacy for a normal person to have their private life attacked on a blog.)
Frankly, Skanks in NYC doesn’t look like a set of Publius-esque words that deserves protection for anonymity. It does not match any of CyberSLAPP’s examples of helpful anonymity. Instead, it looks exactly like the many cases of anonymous and gendered personal attacks, like Autoadmit and Kathy Sierra attacks, which Danielle rightly labels destructive: Online attacks, often sexually framed, which targeted the personal well-being and careers of their disproportionately female victims.
As is clear from this quick slide from the beloved first amendment to the sacred cow of gender discrimination, Wenger has little difficulty deciding that worthiness of constitutional protection quickly dissolves when the content either isn’t deemed sufficiently “Publius-esque” or, more significantly, when the victim is female. For anyone who didn’t think that the Cyber Civil Rights debate wasn’t worth your time, there’s a strong likelihood that you will come to regret that decision.
Naturally, Danielle Citron then took up arms in the Skanks debate.
But Skanks highlights two of the most significant threats to first amendment law. First, that it is almost invariably the oddball, and often disgusting, scenario where the line is decided. Second, that the naturally allies of free speech will flee the ship as soon as another of their sacred cows are threatened.
And it’s not just the Cyber Civil Rights adherents. As Liptak pointed out in his New York Times article about the Supreme Court’s reargument of the Hillary, The Movie case, pitting free speech against the power of corporate money to unduly influence popular political belief, free speech has been quickly abandoned by many of its natural allies. Notably, the ACLU is one of the few who has maintained its position that this fundamental constitutional right shouldn’t sway in the wind whenever some other liberal sacred cow is at risk.
Bottom lining this dilemma, first amendment rights are either fundamental, and thus deserving of protection even when it’s inconvenient or contrary to other irksome interests, or the sacred cow du jour trumps the first amendment. For those who prefer that constitutional rights not be subject to whatever wind blows at the moment, we may be in for a bumpy ride. And for those who don’t think that it’s worth their time to follow the lawprofs debates, this is an awfully good reason to rethink their position. It’s not just Rosemary Port’s rights at stake here.
Naturally, Danielle Citron then took up arms in the Skanks debate.
Some have asked whether this case warrants treatment as a cyber civil rights issue since it “is just a girl cat fight.” To be sure, women can deprive other women of their right to be free of unequal treatment on the basis of their gender. But the larger concern is, for me, convincing skeptics to see the blog attacks on Ms. Cohen as more than just an interpersonal disagreement between two women, something that tort law can handily address on its own, but rather as gender discrimination.It’s critical to bear in mind that the issue here is not whether Cohen would have a cause of action, or what cause she would have, against Port for her Skanks blog. The issue is what the standard should be to compel disclosure of an anonymous blogger. As an aside, Cohen immediately dropped her claim after learning the identity of Port, which of course makes clear that learning the identity and outing her detractor was her goal all along.
Much like sexual harassment in the workplace, the blog suggested that Ms. Cohen constitutes an object of sexual derision, not a person worthy of respect. Moreover, they interfered with Ms. Cohen’s right to work as an equal. According to Ms. Cohen, potential employers asked her about the blog, which quite possibly deterred them and others from hiring her. In a world filled with aspiring models, employers might chose to work with someone who comes with less baggage, even if they do not believe the postings a wit. And the blog postings harm women as a group and a society as a whole by entrenching gender hierarchy in cyberspace. Whether current law would support such a claim is certainly in dispute, but such a law could be crafted. Such a law would play an important expressive role–it would change the social meaning of such harassment of women.
But Skanks highlights two of the most significant threats to first amendment law. First, that it is almost invariably the oddball, and often disgusting, scenario where the line is decided. Second, that the naturally allies of free speech will flee the ship as soon as another of their sacred cows are threatened.
And it’s not just the Cyber Civil Rights adherents. As Liptak pointed out in his New York Times article about the Supreme Court’s reargument of the Hillary, The Movie case, pitting free speech against the power of corporate money to unduly influence popular political belief, free speech has been quickly abandoned by many of its natural allies. Notably, the ACLU is one of the few who has maintained its position that this fundamental constitutional right shouldn’t sway in the wind whenever some other liberal sacred cow is at risk.
Bottom lining this dilemma, first amendment rights are either fundamental, and thus deserving of protection even when it’s inconvenient or contrary to other irksome interests, or the sacred cow du jour trumps the first amendment. For those who prefer that constitutional rights not be subject to whatever wind blows at the moment, we may be in for a bumpy ride. And for those who don’t think that it’s worth their time to follow the lawprofs debates, this is an awfully good reason to rethink their position. It’s not just Rosemary Port’s rights at stake here.
Discover more from Simple Justice
Subscribe to get the latest posts sent to your email.
Free speech is so important and it is worth protecting. I consider myself an honest person and enjoy being able to speak my mind. I never try to hurt anyone with lies or insults and when people do use insults they need to make clear its in “thier opinion”.
I am battling a free-speech issue myself, not in court but I am hoping my local state assembyperson can help. A local university refuses to admit me into the school of social welfar because of my essay.
I lean “right” (so they say) and I was called in for an “interview” more like an interogation, it was not an interview to “get to know me” kind of thing but to belittle me for my essay. The first thing out of the Interviewer’s mouth was “I am concerned with your essay”. I had all my prereqs met, and a 3.8 gpa. I am not 20 something, I am 40 something and not easily intimidated. The fact that they would abuse their “power” and do this to a private citizen, is very sad and even scary.
Classes started today at that school. To add insult to injury, the school has a seat-availability to accept 100 students for the program, well, the program is not even half full. Out of 100 seats only 49 students were admitted.
The irony of the whole thing is that in my essay I said Education and non access to the legal system (without money) are the main issues for poverty and people like them getting away with trampling on individual civil rights.
Imagine that, a qualifed applicant denied admission from a State University for her thoughts on “social change”.
I didn’t see anyone “flee the [civil rights] ship as soon as another of their [liberal] sacred cows are threatened.”
Even Citron, who I suppose you equate to the devil for her prior work, stayed largely away from the civil rights issue and went to the fact that a number of observers trivialized the harm at issue as a cat fight.
Wenger, similarly, didn’t abandon civil rights for a sacred cow, but simply applied the exact same First Amendment reasoning that the not-liberal Supreme Court has applied to defamation cases for decades: not all speech is equal. Obscene speech is not as protected as political speech. Same goes for purely commercial speech, and for “fighting words.”
But, hey, if it makes you feel better to rail against feminists by falsely comparing a blog calling someone a skank to The Federalist Papers, go ahead. It’s your blog.
So you didn’t catch on to the proper standard for disclosure point at all? Bummer.
Citron didn’t address the standards at all. Guess you didn’t catch on to that.
Wenger did address them, in a manner I described in my comment (a manner consistent with decades of precedent), and which you brushed aside with “But does it matter?”, which is no analysis at all.
If you say so Max. It’s just not that interesting to have to explain stuff to you.