safety

To pick up on a theme I alluded to last time, let's start with an excerpt from Part 2.

But perhaps the trickiest aspect to prove out of all of the aspects listed up there is “reasonable fear.” American legal requirements are fraught with these ideas and concepts of what a “reasonable” person would do and feel. The reasonable person standard has evolved over time from being a reasonable white male standard to being a more inclusive reasonable American citizen standard. Historically, the reasonable man standard excluded all women and males of color for a very long time. It excluded people with mental disabilities and children. As the needs and the values of each of these groups integrated into the American social fabric, the concept of what is reasonable to an American citizen has changed slightly. Plus, it’s a bit fearful for any marginalized group to realize that mainstream society — the society that feels almost at home when it’s excluding or ridiculing someone on the margins of opportunity — considers itself a beacon of reasonable progress.

Before I go any further, allow me to share the source of the series title because its implications bothered me then. They still bother me now.

Remember this clip?

http://www.youtube.com/watch?v=U3RjiVcIlhY

In the first few seconds, Richards tells African-American hecklers that 50 years ago, he and others would have them upside down with a f**king fork up their asses. And the audience laughs, howls, and cheers -- the same audience that files out of the club moments later when he starts calling the hecklers niggers.

In recommending legal remedies, you may note that I said a blogger has the building blocks of a case if they receive a bothersome threat. I felt reluctant to say that bloggers have absolute awesome odds of winning every legal case ever because each legal provision has its elements. If those elements are not satisfied, then the chances of prevailing in court (or even getting to court) are slim.

Let's take the provisions of cyberstalking as an example. To successfully bring a cyberstalking suit, the following must be proven:

(1) the defendant intentionally used the mail or any facility of interstate or foreign commerce;

(2) the defendant engaged in a course of conduct with the intent to place the victim in reasonable fear of death of, or serious bodily injury to, herself, her spouse or intimate partner, or a member of her immediate family; and

(3) the defendant’s course of conduct actually placed the victim in reasonable fear of death of, or serious bodily injury to, herself.

Now, if I'm learning my lawyering skills properly, it's our job to make sure we can prove every single facet of those elements true for the satisfaction of the court. We have to break down each element into its component parts and work on resolving the issues. So, for the first element, there are three things that we must find to satisfy it -- that the defendant in the case did the alleged behavior, that the behavior committed was intentionally done, and that the method used for doing it was "mail or any facility of interstate or foreign commerce." If it can be established that someone else used the defendant's computer to send the threatening message, there'd be a problem. If it could be established somehow that the defendant did not intend to use the device on which they sent the offending message, there'd be a problem. (And trust me, there are legal requirements for intent that sometimes defy common sense, and a good defense lawyer bills you highly to find them and to use them.) If the offending message was somehow not sent on the methods listed, there'd be a problem. So lawyers comb through each element, looking through little loopholes like those to worm through victories for clients on either side of the "v." in a case. It is not easy, and television makes it look easy, though the courtroom speeches and magical eloquence of actors inspire quite a few litigators, I'm sure.

So I guess you all have heard about the Kathy Sierra situation and the public outcry for ending online abuse because of her case, right? If not, take a look at Sierra's account and the horribly misogynistic threats left by anonymous and psuedonymous commenters and the resulting effects on her ability to blog and on her safety. Read BlogHer's response concerning hate speech and misogyny on the internet. Finally, check out this BBC article about the whole Sierra controversy and some brief remarks at Zuky concerning online abuse. (Hat tips to Carmen (via e-mail) and Kai for the information.)

I'm trying to fight my inclination to spiral all over the place with this entry; there are so many associations running through my mind. My mind enjoys weaving fragile patterns of analysis together, either with rope, with wire, or with webbing. But in doing such connections, sometimes I can lose a point or make too many of them at once. Bear with my mind and its impulsive blossoms of insight, please. This post has ruminated in my head for more than a day now. Though I'm writing in the evening currently, I don't expect to post until I've had a full night's sleep (or more) and time to review my writing.