At the end of Part 3 of this series on cyberharassment–focusing especially on Yahoo and subsidiary Tumblr– I mentioned that intellectual discourse and threats of violence are not equivalent (as site owners often claim).
The right to free speech is not absolute. The courts often distinguish between high-value speech such as intellectual discourse, and low-value speech such as vile name-calling and threats. When people engaged in intellectual discourse are subjected to thousands of vile and threatening messages, this doesn’t form an equivalence.
One of the “big lies” encountered when discussing these issues is that threatening and harassing speech is somehow essential to free speech. But see Mary Anne Franks in Huffpo: Free Speech Elitism: Harassment Is Not the Price ‘We’ Pay for Free Speech. Two takeaway points here are that it’s possible to distinguish between different types of speech, and that the cost for threatening and harassing speech is disproportionately borne by women and minorities. Franks writes:
“[H]arassment is not the price that ‘we’ [all] pay for free speech. It is the price that certain groups and not others pay. … Free speech elitism is the pretense that ‘everyone’ shares equally in the costs and benefits of unfettered expression, when in reality the powerful receive the benefits while the marginalized bear the costs. Free speech elitists urge ‘tolerance’ for toxic expression because they know the burden of this tolerance will not fall on them.”
Just because a woman posts online that she thinks video games have a problem with sexist tropes doesn’t mean she should reasonably expect, or tolerate, or be complacent about receiving messages threatening to commit violence against her. That this occurs points to serious problems in our society, some of which need to be addressed by fine-tuning Internet law. See Danielle Citron, Law’s Expressive Value In Combating Cyber Gender Harassment. This is one of Citron’s most important works, since it goes beyond mere analysis and takes a stronger advocacy position on cyber civil rights.
One thing I understood better from Citron about the nonequivalence of intellectual discourse vs. threatening and shaming speech is that intellectual discourse invites participation, while threatening and shaming speech tries to silence the speaker and force him/her offline. Citron writes: “Self-expression should receive little protection if its sole purpose is to extinguish the self-expression of another.” Laura Bates echoes this view at TheGuardian.com: “[I]n all this hand-wringing over free speech, nobody is talking about the free speech of the women and girls who, as long as this [harassment] continues to go unacknowledged and unresolved, are effectively being driven out of online spaces altogether.”
It’s easy to forget in the passion of the moment that it’s not exclusively women and girls, but also other groups who suffer from cyberharassment. This includes ethnic and religious minorities, whose harassment often goes unreported. As hard as this is to believe, some groups have even less power than women do as a bloc, and are more afraid of reporting incidents lest the authorities become mere surrogate harassers.
Our highly diverse society includes many micro minorities living in small communities, and about whom little is known. They’re not the time-tested and approved minorities who, as good liberals, we’ve been taught by rote not to harass. They are “low information groups,” and are therefore especially vulnerable to Internet harassment and rumor panics.
“Low information group” is a term sometimes used in poly sci to describe voters who vote without complete or accurate information about candidates and issues. But here, I’m talking about something different: small groups or communities which comprise micro minorities, and which tend to live below the radar screen of populist media so that little is known about them, providing maximal opportunity for hate material containing misinformation to be circulated about them.
The concept of a low information group is easier to understand if we start from the individual. Suppose you’re a young teen whose family moves to a new town where you enroll in junior high. As the new kid, you’re a question mark: nobody knows anything about you and you get picked on. This might include somebody starting a Facebook page, Tumblr blog, or Yahoo group about you containing false information.
Consider the way certain pathological personalities operate on the Internet: they look for weaknesses and sensitivities to exploit. A support group for at-risk teens finds itself infiltrated by a harasser who keeps urging them to commit suicide. Women struggling with body image issues are hounded by a harasser who defaces their weight loss photos and tells them they’re “worthless pigs.”
When individual teens are harassed online, the harasser typically looks for some weakness, sensitivity, or question mark that can be filled in with hate material. This might include race-baiting, gay-baiting, or pandering to any available cultural stereotypes. Post 9/11, anyone who looks South Asian or Middle Eastern may be subjected to Muslim-bashing and use of the “T” word (terrorist), regardless of whether or not they are Muslim, and even if they are the most pacific of souls.
By my definition, low information groups are micro minorities about whom little is known by the general public. Scholarly knowledge about them may exist, but has not filtered down to the populist level, or may be eclipsed by stereotypes appearing in populist media. Because little is popularly known about them, low information groups are like the “new kid in town,” especially easy to pick on. And under conditions of Internet pseudo-anonymity, adults frequently act like teenagers, indulging their immature impulse to target vulnerable people with hatred and ridicule.
In America, there are always new low information groups. This is true for a number of reasons, but especially because America is not only a crucible or melting pot where people lose their distinctive cultural identities; it’s also a potter’s wheel and kiln where people forge new cultural identities based on beliefs and affinities.
Alienation seems to be an enduring feature of modern American life. The combination of capitalism, populism, technocracy, and media integration tends to create a uniform mainstream culture which is aimed at the lowest common denominator, but leaves many people feeling unsatisfied, searching for alternatives. Some people break away from the mainstream (if they were ever part of it) to create alternative communities based on different religious, cultural and political assumptions, or differing lifestyle choices.
Perhaps the nature of mainstream media is to primarily report on people seeking to join the mainstream and lose any baggage associated with their ethno-historic identity, to be melted down. But there are also people seeking to distinguish themselves from the mainstream by creating small intentional communities or affinity groups which reflect a more painstaking search for what is true, or what is a livable and sustainable set of values. The freedom of America increasingly looks like freedom to join the melting pot and become average. There is often a great deal of hostility and suspicion directed against people who, rather than melting themselves down, are trying to build themselves up by searching for what is cosmically right and true.
The classical role of the hero or heroine often involves gaining some distance from the mainstream, going on a journey, and returning with some new knowledge or insight which can then be used to solve problems, end injustice, or transform society. But the hero or heroine does not return unchanged. Upon returning from the journey, he or she may no longer be recognized as “one of us,” but instead be seen as “one of them.”
Much of this (currently four-part) series has been couched in terms of feminism, because women are the largest group to suffer from a power imbalance leading to Internet harassment. Those women who have gone in search of knowledge and insight and come back proposing changes to the status quo are those most likely to be harassed and threatened, or (more mildly) misunderstood and mischaracterized. But what most of them are proposing is a society which is more compassionate, more caring, more just, and rooted in the fundamental human dignity of each individual. Such a society would benefit men as well as women.
When resources are scarce, people compete for them. Tolerance, understanding, and freedom from hatred can seem scarce at times; therefore different groups sometimes focus on their own narrowly defined issues. The perceived political solution becomes creating a power bloc which must reckoned with, rather than creating a society in which the powerless are not ill-treated.
The power bloc approach has its value in terms of realpolitik, but tends to create a system of approved and unapproved minorities. One of the distinguishing features of low information groups is that they typically have no power bloc defending them and may therefore be described as “unapproved minorities” — not because they’ve failed any test or background check, but because in a highly politicized society, no one is looking out for their interests. They are beggars at the table, hoping for scraps of tolerance, understanding and human rights, but unable to politically leverage fair treatment. There may be laws on the books theoretically guaranteeing their rights, but those laws are not self-actuating in the absence of a power bloc ready to insist that their rights be upheld. Unapproved minorities may be too poor to wage protracted legal battles which would vouchsafe their rights.
In Part 3 of this series, I wrote that: “Section 230 has the effect of giving companies like Yahoo carte blanche to practice blatant discrimination during the complaint resolution process (if any), turning victims of online harassment into abject supplicants who can only hope or beg that the company might be willing to lift a finger to help them.” Under Section 230, Yahoo/Tumblr is a fiefdom exempt from laws of general applicability that tend to protect minorities elsewhere in society. If Yahoo handles complaints from victims of harassment in a negligent or discriminatory manner, such malfeasance is subsumed under the immunity granted by Section 230.
Moving from the theoretical to the practical: Suppose you’re a Vietnamese Buddhist being harassed for both your ancestry and your peaceful religion. And suppose the person handling your complaint at Yahoo is someone trapped in white male techno reality. Here I must apologize and explain: It’s human nature to be stuck inside one’s own reality, whether that be white male reality, black lesbian reality, Iraq veteran amputee reality, etc. I’m not criticising white male techno reality as such, or suggesting that it’s any more narrow than other realities which people experience and come to embrace. It’s just that white male techno reality tends to rule the Internet, so to the extent it’s oblivious of other realities, and to the extent that Section 230 has the practical effect of enshrining it with kingly power, it poses a danger to people whose lives are defined by other realities and who have lesser power.
To further clarify: In Part 2 of this series I suggested that some corporate women are invited to join the “boys’ club” and participate in policies which continue to disproportionately disadvantage women and minorities. As modified and interpolated by Mary Anne Franks’ article about Free Speech Elitism, this means that women like Yahoo CEO Marissa Mayer and former Yahoo Vice President & Associate General Counsel Anne Hoge essentially embrace the white male techno POV that threats and harassment are “the price we pay” for free speech on the Internet (and for corporate profits at Fortune 500 tech companies like Yahoo). So to continue…
Suppose you’re a Vietnamese Buddhist being harassed for both your ancestry and your peaceful religion. And suppose the person handling your complaint at Yahoo is someone trapped in white male techno reality. Suppose he’s been programmed to spout the cliché that threatening and harassing speech is just “the price we pay.” Suppose he’s also had it drilled into him that Yahoo always hangs onto free content because that’s what pays employees’ salaries. Suppose he’s a low-level grunt who’s never been exposed to any sensitivity training or education in comparative religion that would lead him to feel any sympathy for Vietnamese Buddhists. And suppose it’s been explained to him that the company doesn’t have to worry about lawsuits because Section 230 gives them bulletproof immunity. What are your chances of getting the harassing material taken down? Close to zero under current law.
More likely, you’ll end up feeling like you were violated twice: once by the original harassers, and once by the insensitivity of Yahoo Customer Care. But maybe we shouldn’t blame them; after all, the telephone booth they collectively inhabit might have been jostled during the renovations needed to make way for Marissa Mayer’s on-premises nursery. 🙂
Believe it or not, it gets worse. In Part 3, I discussed how Yahoo’s TOS talks out of both sides of its mouth: We have a no-harassment policy, but don’t expect us to actually implement it. Just use our site, click on the ads, and be comforted by our feelgood policy statements. Now suppose you try and fail at getting harassing material taken down. All Yahoo does is send a form e-mail to the permanently established neo-Nazi group telling them they really ought to play nice (but of course, they don’t have to). Now the harassers know you tried and failed at getting harassing material taken down, so how do they use this to their advantage? Of course, they brag about it: This is proof our hate material is really accurate because, after all, Yahoo has a policy against harassment. We couldn’t say these things if they weren’t true. Yahoo didn’t take down this material because they know we’re right! Vietnamese Buddhists really are a bunch of commies and faggots who deserve to be shot on sight!
So not to wax Lionel Ritchie-ish, but you’re “once, twice, three times a victim.” Yahoo’s marketing pretense of having a no-harassment policy ends up hurting victims more, because Yahoo’s inaction is treated as proof that whatever hateful lies are published on their site are really true. The Yahoo-ABC News partnership adds credence to the Yahoo brand, with the distinction between news and user-generated content getting hazier and hazier. The mainstreaming of hate.
Low information groups are unapproved minorities who have even less power than approved minorities to defend themselves. When Section 230 gives companies like Yahoo carte blanche to handle complaints not at all or any way they feel like, low information groups tend to get short shrift. This is because, like lone individuals, they have no power bloc sticking up for their interests. Cecilia Barnes wasn’t able to get Yahoo to take down harassing material until she finally filed suit.
This dovetails with concerns I raised in a post about human rights: We need policies protecting people’s rights to be applied neutrally, not based on whether or not we like them, whether they’re socially popular, or whether they have a large power bloc defending them. Members of low information groups or unapproved minorities often don’t report harassment because they rightly fear (based on real world experience) that the people to whom they would report the incidents may harbor the same prejudices and stereotypes as the harassers.
Are there things feminists can learn from the harassment of religious and ethnic minorities? One (possibly controversial) item would be that it’s not fundamentally about gender, it’s about power imbalances wherever they occur. This includes power imbalances between men and women, whites and nonwhites, rich and poor, etc. On the Internet, it also includes power imbalances between anonymous harassers and highly visible professionals.
Anonymity on the Internet is itself a huge and controversial topic which I won’t presume to tackle here. But see feminist law professor Nancy Leong’s blog post Anonymity and Abuse:
What is it about the Internet that brings out this ugliness [of harassment]? Some have hypothesized that the lack of face-to-face contact loosens normal social inhibitions. A recent Wall Street Journal article, “Why We Are So Rude Online,” credits MIT Professor Sherry Turkle with the insight that “[b]ecause it’s harder [online] to see and focus on what we have in common, we tend to dehumanize each other.” Or, as Louis CK puts it, the Internet keeps us from building empathy.
Online anonymity worsens the empathy deficit. Unsurprisingly, evidence suggests that people behave in antisocial ways when granted anonymity. Research such as this classic study has long implicated anonymity in group antisocial behavior, thus explaining the way that anonymous posters often seem to encourage one another. And Saul Levmore and Martha Nussbaum’s excellent anthology The Offensive Internet explores the role of anonymity from a range of perspectives. (Of course, anonymity is far less ironclad than some posters seem to think — indeed, I was easily able to discover the identities of a few of my harassers using google, one in less than ten minutes.)
Elsewhere, Prof. Leong confirms that within the realm of anonymity, we can still make a distinction between high value speech (such as intellectual discourse) and low value speech (such as crude name-calling and threats). Anonymity is a blessing to people who are powerless but hope to speak truth to power, and a curse when used to harass innocents who have placed their professional reputations on the line in support of noble ideals. Prof. Leong puts it this way:
“[A]nonymity might empower some marginalized speakers to engage in discourse who would otherwise remain silent. But when anonymity facilitates harassing and abusive speech directed at marginalized identity groups, society has a strong First Amendment interest in regulating anonymity. Harassing and abusive speech results in a net loss to the marketplace of ideas. Online racial and gender harassment silences the speech of many women and people of color, diminishing the diversity of perspectives represented in online discourse and impoverishing the ‘free trade in ideas’ within ‘the competition of the market’ that Justice Holmes first discussed in his famous dissent in Abrams v. United States. If we really care about the marketplace of ideas, we should care about eliminating online racial and gender harassment.”
This implicitly states a paradox: Free speech is only maximized when speakers from marginalized groups are not silenced by threatening and harassing speech. Thus, the white male lawyer working for Internet media company truism that “the answer to bad speech is more speech and never less speech” turns out not to be true! To maximize free speech, we need to do a better job of protecting women and religious/ethnic minorities from threatening and harassing speech which aims to silence them. That (inherently) means creating, approving, publishing, and distributing less of such threatening and harassing speech.
However, the vested economic interest of many Internet media companies (and the lawyers who shill for them) is in using threatening and harassing speech as free content to draw eyeballs and run ads. Thus, to create a more compassionate society where hate speech is not tolerated one has to go up against well-trenched economic (and political) interests. Who drafted Section 230 so that it gives bulletproof immunity to site owners and requires them to do absolutely nothing in response to complaints of serious harassment? My guess is: politicians who were in the pocket of the telecommunications industry.
And while this gets a bit legal-geeky, if you look around the Net you’ll see that every time some poor consumer (like Cecilia Barnes) who was harasssed on Yahoo or elsewhere loses a Section 230 case, there are a bunch of entertainment lawyers whooping it up, crying Yippee! Section 230 still stands! We don’t even have to go to trial on most of these harassment cases, just quote Section 230 as an affirmative defense! Life is good! Our clients love us! They never have to pay out to the people they screw! Sad, truly sad.
That’s why — although I think the work that Danielle Citron, Mary Anne Franks and others are doing to get revenge pr0n laws passed is amazing — I wish more people would drum up support for pressuring Congress to amend Section 230 so that it no longer reflects regulatory capture and contempt for consumer rights.
Note: I didn’t discuss everything I planned to here in Part 4. Might need to do a follow-up.