Citron, Danielle Keats

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Civil Rights in the Cyber World

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Civil Rightsin the Cyber WorldBy Danielle CitronTHE INTERNET IS A DOUBLE-EDGED SWORD. While it can facilitatethe empowerment of people who often face discrimination, it can alsobe exploited to disenfranchise them. Anonymous mobs employ collabo-rative technologies to terrorize and silence women, people of color, andother minorities, effectively denying them the right to participate inonline life as equals.Consider the case of Bonnie Jouhari, a civil rights advocate andmother of a biracial girl, who was targeted by a white supremacistwebsite. The site posted her child's picture and Ms. Jouhari's homeaddress and showed an animated picture of Ms. Jouhari's workplaceexploding in flames next to the threat that "race traitors" are "hungfrom the neck from the nearest tree or lamp post." After Ms. Jouhariand her daughter began receiving harassing phone calls at home andwork, she left her job and moved. Today, neither she nor her daughtermaintains a driver's license, voter registration card, or bank accountbecause they fear creating a public record of their whereabouts.Another example: Kathy Sierra, a programmer and game developer,who maintained a popular blog on software development called"Creating Passionate Users." In 2007, anonymous individuals attackedMs. Sierra on her blog and two other websites. Posters threatened rapeand strangulation. They revealed her home address and Social Securitynumber, Doctored photographs featured her with a noose beside herneck; another depicted her screaming while being suffocated by lingerie.After the attack, Ms. Sierra canceled speaking engagements and fearedleaving her yard. In April 2009, she explained that her "blog [once]was in the Technorati Top 100. I have not blogged there-oranywhere-since. "Many viewthese attacks asisolated instances IWhen online mobs attack individuals because of their race, gender,or other protected characteristic, they damage individuals, their groups,and society in unique ways. To be sure, traditional criminal and tortlaw can reach some of their injuries. Criminal law punishes onlineharassment and threats. For instance, the Violence Against Women Act(VAWA) punishes anyone using a telecommunications device withoutdisclosing his identity and with the intent to "abuse, threaten, or harassany person who receives the communication." Tort law would provideredress for a cyber harasser's actions. Individuals can bring defamationsuits if online lies ruin their reputations. They can seek money damagesfor emotional distress that a defendant intentionally or recklessly causes.They can bring privacy claims against defendants who publicly disclosedprivate facts that would be "highly offensive to the reasonable person."These traditional remedies are important-but they have a limitedrole. Defamation law, for instance, remedies a plaintiff's reputationalharm caused by online lies, but does not address the stigma and eco-nomic injuries that individuals experience. Nor does it redress the harmthat targeted groups and society suffer in the wake of bias-motivatedconduct. Civil rights laws are designed to respond to such harm.Antidiscrimination laws guarantee the right to be free of unequal treat-ment on the basis of race, gender, or other protected characteristics.Civil rights remedies would combat a cyber mob's interference withindividuals' right to work and participate in discourse online as equals.Existing civil rights laws provide tools to combat anonymous onlinemobs. The Civil Rights Act of 1968, for instance, punishes "force orthreat [s] of force" designed to intimidate or interfere with a person'sprivate employment due to that person's race, religion, or nationalorigin. Courts have sustained convictionsof defendants who made death threatsover employees' e-mail and voicemail.Current law should be amended tocriminalize online threats made becauseof a victim's gender or sexual orientation.Although the Supreme Court struckdown VAWl\s regulation of gender-motivated violence on thegrounds that such criminal conduct did not sufficiently affect interstatecommerce to justify congressional action under the Commerce Clause,Congress could amend VAWA pursuant to its power to regulatean instrumentality of interstate commerce-the Internet-to punishanonymous cyber mobs that threaten individuals because of theirgender or sexual orientation. The Department of Justice would preswn-ably support such a development as it currently encourages federalprosecutors to seek hate crime penalty enhancements for defendantswho subject victims to cyber harassment because of their race, color,religion, national origin, or sexual orientation.WHEN ONLINE MOBS attack individualsbecause of their race, gender, or other protectedcharacteristic, they damage individuals, theirgroups, and society in unique ways.of cyber bullying.But anonymousmobs accomplishsomething farmore systematic than that. Rather than attacking a random mix of indi-viduals, cyber mobs disproportionately target women. The non-profitorganization Working to Halt Online Abuse explains that, from 2000to 2007, 72.5 percent of the individuals reporting cyber harassmentidentified themselves as women and 22 percent identified themselves asmen. Half of those individuals had no relationship with their attackers.Similarly, the National Center for Victims of Crimes' Stalking ResourceCenter reports that approximately 60 percent of online harassment casesinvolve male attackers and female targets. Cyber mobs often targetlesbian andlor non-white women with particular virulence. They alsofocus on men of color, religious minorities, and gay men.JD 2009 32Civil rights laws also sanction private lawsuits against cyber mobsfor their discriminatory actions. Under section 1981 of Tide 42 of theu.s. Code, courts have allowed plaintiffs to bring claims against maskedmobs that use tactics of intimidation to prevent members of racialminorities from "making a living" in their chosen field. And targetedindividuals can sue attackers under Tide VII of the Civil Rights Act of1964 for preventing them from making a living because of their sex.Many will, of course, oppose a cyber civil rights agenda on thegrounds that it would interfere with our commitment to free speech.A cyber civil rights agenda, however, comports with First Amendmentdoctrine and free speech values. First Amendment jurisprudence wouldnot immunize a cyber mob's conduct from regulation and does notprohibit states from using criminal and civil law to forbid threats.Threats of violence made via new technologies are not immunizedfrom penalry on free speech grounds.The First Amendment does not prohibit states from usingcriminal and civil law to forbid threats. Threats of violence made vianew technologies are not immunized from penalry on free speechgrounds. This issue, however, becomes more complicated with crimesthat are interwoven with arguably expressive activiry. Is the burning of across on the lawn of an African-American family best characterized asa threat? Or is it the expression of a view about race which, thoughnoxious, is protected by the First Amendment? The Court answeredthese questions in Virginia v. Black, where it held that a state may bancross burning if the defendant carried it out with the intent to intimi-date. As the Court explained, the First Amendment does not protect"true threats" that communicate a serious intention to commit violenceagainst particular individuals. The Court distinguished cross burningsdone with the intent to intimidate, which it deemed a proscribable"true threat," from cross-burning for other purposes, which it heldconstituted a protected expression of viewpoint.The Court's reasoning applies here. Postings can constitute"true threats" if they convey a serious intention to inflict bodily harmupon the targeted individual, even if they combine the threateninglanguage with protected offensive views. The anonymous threats toinflict bodily harm upon Kathy Sierra, and others like them, areafforded no protection under First Amendment law. Reputation-harming falsehoods similarly enjoy no First Amendment protectionif they assert or imply facts.The First Amendment does not bar antidiscrimination actionseven though civil rights violations communicate bigoted views. It posesno obstacle to civil rights claims because they proscribe defendants'unequal treatment of individuals and the unique harm that such dis-crimination inflicts, not the offensive messages that defendants send.In Wisconsin v. Mitchell, the Court considered a First Amendmentchallenge to a Wisconsin statute enhancing the penalty of certaincrimes if the perpetrator selected the victim because of race, religion,color, disability, sexual orientation, national origin, or ancestry. TheCourt unanimously rejected the defendant's claim that the statutepunished him for his racist views. It explained that the statute did nottransgress the First Amendment because it penalized the defendant'sdiscriminatory motive for his conduct, not his bigoted ideas. The Courtanalogized the Wisconsin statute to federal and state antidiscriminationlaws such as Tide VII's prohibition of sexual harassment, which, itexplained, constituted "content-neutral regulation of conduct."Intimidating Ms. Sierra with rape threats and sexually-demeaningcomments so that she shuts down her income-generating blog isequally offensive, and equally proscribed, no matter the anonymousperpetrators' specific views. When law punishes online attackers due tothe special severity of the social harm produced by targeting individualsbecause of their gender or race, and not due to the particular opinionsthat the attackers or victims express, no First Amendment valuesare implicated.Not only does a cyber civil rights agenda comport with First Amend-ment doctrine, it is consistent with prominent free speech theories thatemphasize the importance of autonomy, cultural innovation, and thepromotion of truth. Restraining cyber gender harassment is essential todefending the expressive autonomy of its victims. Although harassersexpress themselves through their assaults, their actions direcdy implicatetheir targets' self-determination and ability to participate in political andsocial discourse. Self-expression should receive little protection if itssole purpose is to extinguish the self-expression of another.In short, cyber mobs inflict serious injuries that law must address.Combating their cyber assaults requires a comprehensive approach,one that includes traditional criminal prosecutions, tort remedies, andcivil rights actions. Together, traditional remedies and antidiscriminationlaws have great potential to deter, punish, and remedy the abuse ofonline mobs. We can harness law's coercive power to reverse the back-ward-looking trend without sacrificing our commitment to free speech.ProfessorDanielle Citron's scholarly interests include informationprivacy law, cyberspace law, and administrative law, with an emphasison legal issues surrounding the government's reliance on informationtechnologies. For the full law review article jom which this essaywasexcerpted, visit: www.law.umaryland.edulcyber.33 JD 2009

Civil Rights in the Cyber World

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