Before the players got on the field in the Cameroon-Mexico World Cup match, sports fans took to Twitter to vent their hate. Mexicans were targeted with racist stereotypes and homophobic slurs next to the hashtags #MEXvsCMR and #MexicoVsCamerun. After Germany’s victory over Brazil in the semifinals, social media was flooded with Nazi references. According to the Anti-Defamation League, over 14,000 tweets referring to the match talked about Nazis. For instance, a Malaysian Member of Parliament tweeted, “Well done . . . bravo. LONG LIVE HITLER.”
The vitriol expressed at the World Cup is not unusual. After hockey player P. K. Subban scored a winning goal in his team’s match up against the Boston Bruins, over 17,000 tweets associated Subban’s name with the N-word.
Hate speech is ugly, destructive, and protected expression in the U.S. We protect hateful speech because we do not trust government to pick winners and losers in the realm of ideas. Hateful ideas enjoy constitutional protection so that debate on public issues can be uninhibited. We can shine light on the ignorance as many do in tweets and blogs. Let the racists vent, the idea goes, so that perhaps that will prevent the haters’ frustration from spilling over into violence.
But some forms of online hate — cyber harassment and cyber stalking — are not protected speech, and for good reason. Consider Kathy Sierra’s experience. Sierra loved blogging. She wrote about what she knew best: developing software. At the height of her blog’s popularity, she shut it down, but not because she wanted to move on to other endeavors. Anonymous emails and blog comments included graphic rape and death threats. Doctored photographs depicted her with a noose beside her neck and being suffocated with lingerie. Her social security number and home address were spread across the web.
Sierra’s experience is a classic example of cyber harassment and cyber stalking. Cyber harassment involves the intentional infliction of emotional distress accomplished by online speech that is persistent enough to amount to a “course of conduct” rather than an isolated incident. Cyber stalking refers to an online course of conduct that causes a person to fear for his or her safety.
Being a woman raises one’s risk of cyber harassment. Over 70 percent of cyber harassment victims are female. Attacks are often sexually demeaning and sexually threatening. They frequently include detailed fantasies of rape as well as reputation-ruining lies (such as accusations of having sexually transmitted diseases) and sexually explicit photographs.
And if dealing with a single attacker’s abuse were not enough, harassing posts fuel other destructive posts, turning lone instigators into cyber-mobs. Thousands upon thousands of cyber harassment incidents occur annually in the United States.
Existing law could tackle some of the abuse. Harassers could face prosecution under stalking, harassment, and threat statutes. A big problem, however, is our social attitudes. Criminal laws are not enforced because cyber harassment is often viewed as no big deal. Victims are blamed for their predicaments. Rather than pursuing cyber harassment complaints, police officers advise victims to turn off their computers.
Even if law enforcement took cyber harassment seriously, criminal law leaves some abuse uncovered, such as stalking and harassment that is not directly communicated to victims and the nonconsensual disclosure of nude images. Civil remedies are available only in theory for many victims due to the high cost of litigation and the absence of privacy protections. Civil rights laws are ill-suited to address online abuse. Legal reform is essential to protect the equality of opportunity in the information age.
Free speech issues are difficult indeed, but we can bring law to bear against cyber harassment without compromising our commitment to free expression. Certain categories of speech can be proscribed because they bring about serious harms and make only the slightest contribution to public debate. The First Amendment affords less rigorous or no protection to true threats, defamation, speech facilitating crimes like extortion, public disclosures of purely private matters such as nude photos of private individuals, and the intentional infliction of emotional distress upon private individuals about purely private matters.
Law would chill some expression because, after all, cyber harassment is accomplished with words and images. But credible threats, defamatory falsehoods, and nude images posted without consent contribute little to discourse essential for citizens to govern themselves and discover truths. Instead, their net effect is to silence victims.
Silicon Valley could have a role to play as well. Real-name policies, however, are not the answer. Eliminating anonymity is too costly to self-expression; its benefits are illusory. If online platforms require users to use their real names, they run the risk of chilling conversations essential to democratic citizenry. What they can do is make anonymity a privilege that can be lost. When individuals engage in cyber harassment, they should be made to own their words and actions.
Image via Official GDC.