How the Internet Unmakes Law

ProfessionalAcademi

Sex, Lies, and Videotape: Deep Fakes and Free Speech Delusions

The longstanding position of civil libertarians that harmful speech should generally be tolerated instead of regulated is based on three interrelated claims about free speech. One is that an unfettered “marketplace of ideas” ultimately leads to the discovery of truth. The second, closely related to the first, is that harmful speech is always best addressed through counterspeech rather than regulation. The third is that even well-intentioned and modest regulations of speech will ultimately be used to silence minority or dissident voices. Whatever merit these claims may have had in the past, they cannot be sustained in the digital age. Unbridled, unlimited free speech rights, especially in an era of technologically mediated expression, have led to the disintegration of truth, the reign of unanswerable speech, and the silencing and self-censorship of women, queer people, persons of color, and other racial and ethnic minorities

Sexual Harassment 2.0

Sexual harassment is a complex and evolving practice. The rise of sexual discrimination in cyberspace is only one of the most recent and most striking examples of the phenomenon\u27s increasing complexity. Sexual harassment law, however, has not kept pace with this evolution. Discrimination law has not been adequately updated to address new and amplified practices of sex discrimination. Its two principal limitations are (1) it treats only sexual harassment that occurs in certain protected settings (e.g. the workplace or school) as actionable and (2) it assumes that both the activity and the resulting harm of sexual harassment occur in the same protected setting. Thus, it is unable to address any harassment that occurs completely or partially outside of traditionally protected settings. By contrast, this Article proposes a multiple-setting conception of sexual harassment that both moves beyond traditionally protected settings and explicitly acknowledges that sexual harassment in one setting can produce harms in another. In order to address multiple-setting harassment, a third-party liability regime similar to that of traditional sexual harassment law should be introduced into nontraditional contexts. In the particular case of online harassment, liability should attach to website operators. This regime will create an incentive for website operators to adopt preemptive, self-regulatory measures against online sexual harassment, much as employers have done in the offline setting

Fearless Speech

The American conception of free speech is primarily defined as the freedom to say whatever one wants, with little regard for the quality, context, or impact of the speech. Thus, American free speech doctrine is often characterized as neutral with regard to the speaker and the content of speech; in practice, however, it consistently privileges powerful over vulnerable speakers and harmful over critical speech. From Philadelphia to Skokie to Charlottesville, the First Amendment has been interpreted to protect speech by white men that silences and endangers women and minorities. As free speech doctrine and practice become increasingly concerned with private as well as state action, free speech becomes even more of a monopoly and monoculture dominated by the interests of white men. The impoverished and elitist conception of free speech that governs current American legal theory and practice undermines all three values the First Amendment is meant to protect: autonomy, truth, and democracy. This Article proposes that First Amendment theory and practice should be reoriented around ancient Greek concept of parrhesia, or fearless speech. As the philosopher Michel Foucault describes it, the speaker of parrhesia chooses frankness instead of persuasion, truth instead of falsehood or silence, the risk of death instead of life and security, criticism instead of flattery, and moral duty instead of self-interest and moral apathy. Parrhesia is, in essence, the act of speaking truth to power. The more fearless the speech, the more protection and encouragement it should receive, both from state and private actors; the more reckless the speech, the less protection and encouragement it should receive. The ideal of fearless speech, rather than free speech, is a superior guide for a society with democratic aspirations

How to Feel Like a Woman, or Why Punishment Is a Drag

If a man in prison says that he was made -to feel like a woman, this is commonly understood to mean that he was degraded, dehumanized, and sexualized. This association of femininity with punishment has significant implications for the way our society understands not only the sexual abuse of men in prison but also sexual abuse generally These important implications are usually overlooked, however, because law and society typically regard prison feminization as a problem of gender transposition: that is, as a problem of men being treated like women. In contrast, this Article argues that feminization is punitive for both men and women. It is as unnatural and wrong for women to be degraded, dehumanized, and sexualized under coercive circumstances as it is for men to be. This Article suggests that examining the sexual abuse of men in prisons can help disrupt the persistent and uncritical linking of feminization and women. By reading the sexualized abuse of men in prison as a form of forced feminized performance-a coerced drag-this Article hopes to expose the artificiality and violence of compelled feminization. The proper approach to assessing forced feminization is to focus on its oppressive structure, not on the gender of its victims. When we do so, we can see what all victims along the spectrum of sexual and domestic abuse have in common, and we can form social and legal responses accordingly. The phenomenon of male sexual abuse in prison thus provides a potentially illuminating opportunity to think about the structure and consequences of sexual abuse in general. This is significant not least because social and legal responses to sexual abuse outside of the prison setting where sexual abuse is generally perpetrated by men against women-are constrained by pernicious gender stereotypes and a massive failure of empathy. Understanding the phenomenon of male prison sexual abuse is thus essential not only for addressing a specific problem in carceral institutions,but also for forcing law and society to consider sexual abuse in a productively counterintuitive way