Inspecting the Proverbial Fork (Part 1 of 3)

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.

Okay. First things first, online abuse is a problem in the blogosphere, and it didn't emerge in a day. I don't know if it's the faux cloak of invisibility or worn out social courtesies offline, but people say really ridiculous things when they feel as if they won't "get caught," so to speak. Never mind the intricate logging technologies, the IPs, the caches, the trackers...people feel safe online spitting vitriol that they would not spit elsewhere. I have yet to discover whether that's a benefit or a detriment, especially when viewing it in the marketplace of ideas framework.

In the United States, our First Amendment protects freedom of speech, freedom of the press, freedom to assemble peaceably and to petition the government for a redress of grievances. Also, as much as the neo-fundamentalist-Christian-conservatives wanna try to change this fact by waxing pathetic on moral majorities, the Constitution prohibits the establishment of an official religion (though Judeo-Christian biases have slipped in by default) and it prohibits stopping others from following the religions they wish to practice. In other words, the Constitution makes it so that anyone can look divine in the fine fabric of our nation.

Freedom of speech in the United States is not absolute. Freedom of speech has limits: threats are not protected by the First Amendment. Nor are fighting words protected. Nor are treatises to take violent action against the government or to obstruct a substantially important government activity. There are, of course, exceptions to these vulnerabilities in our freedom of speech. The key tenet to freedom of speech is when you speak, there are consequences; this is the caveat of intellectual commerce. When you share an idea, you are not guaranteed an audience, their agreement with your words, the safety of your reputation, the absolution of your opinion, or a special cloud to sit on to keep your robes from trailing on the ground. You only possess the right to share that idea. While our government is not keen on prior restraint and quelches the idea of preventing someone directly from sharing a viewpoint, it has no problem arresting people after the fact for saying something that qualifies under the exceptions I listed above, with caveats in determining whether the circumstances exist for an arrest. The interest in keeping the idea exchange open is to promote democracy and civic participation (though the latter in the U.S. needs a blood transfusion).

In Kathy Sierra's case, she perceived the speech referring to her as a threat to her wellbeing and to her family's wellbeing. In the U.S. legal spectrum, that perception and the nature of the speech lay the building blocks for a tort suit for assault, according to the Restatement (Second) of Torts*:

s 21. ASSAULT
(1) An actor is subject to liability to another for assault if
(a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and
(b) the other is thereby put in such imminent apprehension.
(2) An action which is not done with the intention stated in Subsection (1, a) does not make the actor liable to the other for an apprehension caused thereby although the act involves an unreasonable risk of causing it and, therefore, would be negligent or reckless if the risk threatened bodily harm.

American law currently provides that the anonymity of the internet is not a shield for a tortious act or a criminal act -- if the person wishes to file suit or to press charges, the court can order internet service providers to release the identifying information of the person making the "harmful or offensive contact." So that's available to a blogger who has that annoying, persistent troll who sends ambiguous messages and threats to intimidate -- go to the lawman and ask what your options are. Civil and criminal charges can follow.

*Small note about the Restatement (Second) of Torts: even though it has only persuasive authority (meaning judges have the option of not following it since it's not black letter, codified law), in most cases courts and legislatures do adopt the Restatement into its statutes and opinions. Restatements of the Law are academic refinements of legal principles published by the American Law Institute by premier experts in the law field. They often simplify matters by classifying crimes into manageable elements to establish the requirements for bringing a case.

Part 2 will deal with how bringing legal charges against anonymous/pseudonymous commenters may prove more difficult than it seems because of legal requirements -- especially ones centering around the reasonable person standard. Part 3 will evaluate what reasonable person standards mean for bloggers who are members of marginalized groups, and it will discuss the dormant reactions to smaller blogs experiencing similar threats of violence and endangerment.

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