by Mary Anne Franks [FNa1]
© 2011 by the Columbia Journal of Gender and Law
NOTICE: THIS WORK MAY BE PROTECTED BY COPYRIGHT
YOU ARE REQUIRED TO READ THE COPYRIGHT NOTICE AT THIS LINK BEFORE YOU READ THE FOLLOWING WORK, THAT IS AVAILABLE SOLELY FOR PRIVATE STUDY, SCHOLARSHIP OR RESEARCH PURSUANT TO 17 U.S.C. SECTION 107 AND 108. IN THE EVENT THAT THE LIBRARY DETERMINES THAT UNLAWFUL COPYING OF THIS WORK HAS OCCURRED, THE LIBRARY HAS THE RIGHT TO BLOCK THE I.P. ADDRESS AT WHICH THE UNLAWFUL COPYING APPEARED TO HAVE OCCURRED. THANK YOU FOR RESPECTING THE RIGHTS OF COPYRIGHT OWNERS.
PART 1 OF 2
I made image upon image for my use ...
I made god upon god ...
I made the gods less than men
for I was a man and they my work.
- H.D., Pygmalion [FNd1]
INTRODUCTION: GODS AND MONSTERS
Few would deny that cyberspace has a dark side. The of such negative incidents and perhaps even more widely as to the appropriate response to these incidents. [FN1] On one side are voices calling for increased regulation of the Internet: user codes of conduct, [FN2] the reform of Section 230 of the 1996 *225 Communications Decency Act (CDA § 230), [FN3] and stricter laws regarding online defamation, threats, and invasions of privacy. [FN4] On the other side are those who argue that the benefits offered by the free and unregulated exchange of ideas that characterizes the medium of cyberspace far outweigh the harms facilitated by the Internet. [FN5]
The latter view is based on what this Article calls cyberspace idealism -- the view of cyberspace as a utopian realm of the mind where all can participate equally, free from social, historical, and physical restraints. Though the high-flown rhetoric of early cyberspace idealists [FN6] may now seem somewhat dated, the liberationist vision at its core maintains its hold on our (increasingly online) collective imagination. This vision is a quasi-Cartesian one: a vision of human identity as fundamentally divided between mind and matter, where matter is limiting and temporal and, as such, in many ways inferior to the mind. For those who hold this vision, cyberspace presents the opportunity to escape physical limitations, both geographic and bodily.
The concept of the avatar, broadly conceived, is central to cyberspace idealism. The term is generally used to refer to users' virtual self-representation -- from sophisticated graphics to simple pseudonyms -- in computer games, virtual reality systems and chat rooms. As used in this Article, an avatar also stands *226 more generally for the unique mode of being that cyberspace allows. The very structure of cyberspace facilitates a wall between a person's “real” identity and their virtual one. The term “avatar” is Sanskrit for “incarnation,” and the religious resonance is telling. Cyberspace provides, according to this view, a powerful counter to the real world. In real life, individuals are constrained by physical limitations, with all the prejudice and division this engenders. In cyberspace, the only limitation is an individual's imagination and creativity.
Cyberspace idealism often produces conflicting accounts of the “realness” of cyberspace. On the one hand, cyberspace is often regarded as more real than real life -- that is, the ability to control the terms of representation makes cyberspace existence more genuine. On the other hand, harms committed in cyberspace are often dismissed as “not really real,” as they are by their nature not physical, bodily harms. The way this tension plays out in terms of the law's recommended role in cyberspace can yield schizophrenic results: freedom of speech, for example, in cyberspace is “really real” and must be vigorously protected; harassment in cyberspace is not “really real” and thus should not be taken very seriously.
This is not to say that cyberspace idealists do not find any cyberspace practices harmful. Many idealists do not object to tort and criminal remedies for defamation or stalking that occurs in cyberspace. The idealist position does, however, treat such harms as aberrations, as occasional malfunctions in an otherwise smoothly operating system. This Article argues that the idealist view sets up a false picture of cyberspace that preempts the proper evaluation of the harms of cyberspace harassment. Specifically, the idealist view fails to recognize -- or at least to take seriously -- how the same features of cyberspace that amplify the possibilities of individual liberty also amplify the potential for discrimination. Cyberspace idealism drastically downplays the Internet's power to activate discriminatory stereotypes and social scripts.
This Article focuses on the particular discriminatory phenomenon of the unwilling avatar. In stark contrast to the way users exert control over their online identities, the creation of unwilling avatars involves invoking individuals' real bodies for *227 the purposes of threatening, defaming, or sexualizing them without consent. Sometimes the creation of unwilling avatars takes a very literal form: for example, hacking into the account of a gamer and using her avatar as though it were your own, or creating a false profile of a real person on a social networking site. Other examples of unwilling avatars are more figurative. For example, women have been targeted for “revenge porn,” a practice where ex-boyfriends and husbands post to the web sexually explicit photographs and videos of them without their consent. Another example is the case of Kathy Sierra, who was attacked by anonymous bloggers and posters with manipulated photographs and threats of death and sexual violence. Female law school students also become unwilling avatars when they are targeted by graphic and violent sexual threads at message boards such as AutoAdmit.com. [FN7] In most cases of cyberspace harassment, the perpetrators use pseudonyms [FN8] while identifying their targets not only by name but often also with private information such as home addresses and social security numbers. This informational asymmetry further aggravates the inequality resulting from cyberspace harassment.
The unwilling avatars phenomenon affects the way that many different groups interact with cyberspace, among them racial and sexual minorities. This Article focuses specifically on the way this phenomenon affects women, not because the impact on other affected groups is less important or interesting, but because the gendered dimension of harassment and abusive behavior online is worthy of independent study. [FN9] Cyber harassment affects women disproportionately, both in terms of frequency and in terms of impact. Moreover, there is a particularly poignant irony in the nonconsensual sexualized embodiment of women in cyberspace. As will be discussed in *228 more detail below, cyberspace can present particularly compelling opportunities for women because they feel the constraints of physical vulnerability, especially sexual vulnerability, more acutely than men. In that case, the extent to which this physical vulnerability is re-imposed upon them--principally by men--in cyberspace is truly disheartening. If cyberspace harassment makes many women feel less safe online than they do in real life, and more exposed and vulnerable to sexual aggression both on and offline, this undermines the idealistic promise of cyberspace in a significant way. The volume and viciousness of cyber-attacks -- especially sexualized attacks -- on women by men suggests that cyberspace cannot be thought of as a place where, on balance, women and men can participate equally. Rather, it is a place where existing gender inequalities are amplified and entrenched.
This Article is concerned with gender discrimination as an interference with liberty and equality. It advocates for an expansive notion of liberty, one that includes the freedom to think and act and develop one's life as one wishes, without political or social restraints, except where that liberty would harm others. [FN10] Though John Stuart Mill is invoked frequently in debates concerning the relationship between law and liberty, his insight that social restraints on liberty are often more pernicious and difficult to challenge than political ones is often forgotten. This insight is key to any complete analysis of discrimination's effects on liberty. Restraints on liberty can manifest in the form of formal legal restrictions, as they did in laws permitting slavery, but they can also manifest as social restrictions, as they do in cross-burnings and racist propaganda. An African-American man who could not enter a restaurant that had a “whites only” sign in the window experienced a once-legally permissible infringement on his liberty; an African-American man who avoids the same restaurant because of the racist jeers and taunts of other customers experiences a social infringement on his liberty. This is not to collapse the two experiences into one -- for there are important differences between them -- but merely to underscore the point that infringements on liberty can occur both through legal-political means and social means.
*229 A world in which members of certain groups avoid places, professions, opportunities, and experiences because they fear de facto, rather than de jure, discrimination -- based not on their ideas but on their bodies (e.g. because they are women, or gay, or black) -- is not a world that maximizes liberty. [FN11] The virtual world has not only reproduced the various forms of discrimination that exist in the physical world, but has allowed them to flourish in ways that would not be possible in the physical world. Again, one could use any number of examples, racism [FN12] and homophobia among them, to illustrate this principle, but this Article deals specifically with sexism in cyberspace. Women shut down their blogs, avoid websites they formerly frequented, take down social networking profiles, refrain from engaging in online political commentary, and choose not to maintain potentially lucrative or personally rewarding online presences due to cyberspace harassment. [FN13] The harms they experience also spill over into their offline lives: women have dropped out of school, changed jobs, moved cities, gone into hiding, experienced mental breakdowns, and, in extreme cases, committed suicide due to cyberspace harassment. [FN14] The harassment that they experience is promulgated by users who overwhelmingly self-identify as male, though most remain anonymous beyond that, and is overwhelmingly characterized by obscene, sexually violent, sexist language and behavior.
When cyberspace idealists argue against increased legal regulation because of its implications for liberty, they ignore the fact that cyberspace harassment has already undermined and compromised liberty. Sometimes this ignorance is genuine; sometimes it is thoroughly disingenuous, in that many *230 cyberspace idealists are fully aware that the liberty they desperately wish to defend is liberty only for others like them. [FN15] In either case, it is necessary to explode the myth of cyberspace as a state of liberty that deserves wide deference and instead view it for what it is: a state of license in which certain groups with power oppress, threaten and harass groups with less power. As Locke described it in Two Treatises on Government, a state of license is one in which some groups have taken liberty at the expense of others. [FN16] Such a state is no longer “natural,” according to Locke, and as such requires intervention of the law. [FN17] Cyberspace has become a state of license in which women as a group are afforded less liberty than men as a group and thus must be regulated through laws that distribute liberty more equally. If cyberspace is not to be merely a state of license, we must turn our attention to finding the best possible legal responses to harassment.
Part I of this Article begins with a description of cyberspace idealism -- who propounds it, how, and with what effect. This Part highlights the conceptual significance of the avatar in cyberspace idealism and investigates how the fantasy of cyberspace as a Lockean “state of liberty” closely tracks and mutually reinforces liberal conventional wisdom about the “marketplace of ideas.” Part II complicates the picture of cyberspace advanced by idealists, detailing the phenomenon of “unwilling avatars” and its effects on women in particular. This Part demonstrates how cyberspace more closely resembles a Lockean state of license than a state of liberty and looks to Mill's conception of social restraints on liberty for insight into the restriction of harmful speech. This Part also shows how the nature of cyberspace magnifies the harmful effects of discrimination. Part III describes how the phenomenon of unwilling avatars serves as a “double embodiment” that not only undermines women's ability to escape or subvert real-world *231 inequality in cyberspace, but also reinforces that inequality. Part IV addresses objections to the analysis of cyberspace harassment offered here.
I. Cyberspace Idealism: Paradise?
A. Avatars in Utopia
As many scholars have described it, the creation of cyberspace is only the most recent of human attempts to create a utopia. [FN18] The utopian drive is certainly not new: it can be observed in rhetoric about the New World, the Wild West, Communist Russia, cults, and any number of hippie communes. [FN19] The concept of paradise seems to exert a particular influence over western Judeo-Christian civilization, reflected (or possibly produced) by its literal placement at the beginning of human time in the Bible. Paradise in Christianity is much more than just the Garden of Eden; it is a metaphysical, originary condition -- the pure state from which humans have fallen. [FN20] Freud proposed that religious belief was largely driven by a commonly-felt nostalgia for a lost state of perfect wholeness -- what he referred to as the “oceanic feeling” (a term coined by Romain Rolland) and surmised was really a dim remembrance of the womb. [FN21] Whatever its literal source, the belief in and nostalgia for a state of perfection has been a frequent theme in Western literature, exploration and politics. [FN22]
*232 It is not difficult to see why cyberspace, especially in the early days of the internet, would incite such utopian fervor. As noted by numerous writers, cyberspace provides a heady opportunity to escape one's physical boundaries, both geographical and personal, in a more extreme way than ever before. In cyberspace, as the saying goes, “no one knows you're a dog.” [FN23] Or a woman, or a Jew, or overweight, or deaf, or whether you're in Arkansas, or Massachusetts, or St. Petersburg. At its most basic level, cyberspace seems to allow people to control who they want to be and to go wherever they want to go.
While most people think of avatars primarily as sophisticated visual icons of virtual worlds and computer games (e.g., the avatars in Second Life, where users can choose from a wide range of body types, skin colors, facial features, clothing, and accessories), the term encompasses more minimalist representations as well, such as pseudonyms, also known as “handles,” in online chat rooms, blogs, and instant messaging. What is common to all avatars, however, is that they allow users to make choices about their virtual identity. In theory, no matter how one looks, dresses, or walks in real life, a user can create his or her own identity within the range of options available in a given environment. [FN24] At a minimum, avatars allow users to separate themselves from who they “really” are. Avatars can behave in ways their users never would in real life, making it possible for individuals to communicate and act in ways foreclosed in the offline world.
In English, the term “avatar” has been used since the 1980s to describe the visual or textual representations of computer users. The term was first used in this context in Ultima, a computer game series created by Richard Garriot in 1981. In the fourth game of that series, the player's quest is to become enlightened in the “Eight Virtues” in order to become a spiritual model in the fictional land of Britannia. Once a player achieves *233 enlightenment in the virtues -- honesty, compassion, valor, justice, honor, sacrifice, spirituality, and humility -- he or she becomes the Avatar. Garriot was reportedly influenced by a television show about the avatars of Hinduism and the sixteen virtues that they were said to have to master. [FN25] The term avatar was also used in Neal Stephenson's 1992 novel Snow Crash. [FN26] In the novel, Stephenson posits a virtual-reality based successor to the Internet, the Metaverse. Users' virtual representations of themselves in the Metaverse are called avatars. Those who can only access the Metaverse through public terminals are marked by the poor visual quality of their avatars, which greatly influence social status. Snow Crash was a hugely popular novel and is credited with popularizing the term “avatar” to refer to the virtual representations of gamers and computer users more generally.
It is no accident that the identities users create in virtual reality settings are called avatars. The Sanskrit word “Avatara” is often translated into English as “incarnation,” but literally means “descent.” [FN27] In Hinduism, the term generally describes the descent of the Supreme Being into lower spiritual realms. [FN28] Vaishnava Hindus, who worship Vishnu as the supreme god, believe that Vishnu has ten principal avatars. Each avatar appears in a different historical age to save the world from strife and destruction. Vishnu's avatars have taken various forms, including animals, humans and beings that are half animal and half human. Religious scholars have noted that the Hindu conception of the avatar bears much similarity to the Christian conception of incarnation -- a divine being that takes on human form.
The religious resonance of the term “avatar” is thus appropriate. The power to shape one's virtual embodiment *234 evokes a sense of liberation and transcendence, perhaps even a sense of divinity. The real world is riven by prejudices of all kinds; race, gender, class and physical appearance create social stratifications and hierarchies that are difficult for individuals to challenge. In cyberspace, however, users have the opportunity to escape those constraints. The power of the avatar is, on this view, the source of cyberspace's radical social potential. Cyberspace, populated by self-created avatars and freed from physical constraints, evokes visions of a paradise. [FN29]
B. The State of Nature and the Marketplace of Ideas: Two Ways of Looking at the Law
Given that cyberspace offers significant liberating possibilities, it was predictable that a certain idealism would spring up with the widespread use of the Internet. The new possibilities of interaction, activity, and information for individuals who might never have possessed the confidence or ability to partake of them in real life are exciting. This excitement lends itself easily to idealization, reflected in rhetoric about cyberspace's unique capacity for equality and the free exchange of ideas. As John Perry Barlow put it in his Declaration of the Independence of Cyberspace:
We are creating a world that all may enter without privilege or prejudice accorded by race, economic power, military force, or station of birth. We are creating a world where anyone, anywhere may express his or her beliefs, no matter how singular, without fear of being coerced into silence or conformity. [FN30]
A striking feature of this rhetoric is its similarity to the way John Locke describes the “state of nature.” [FN31] Locke's description of the state of nature, contra Hobbes' darkly pessimistic view, is of *235 a state of liberty and equality: a paradise. [FN32] As Locke tells it, the state of nature is a state of liberty: “[A] state of perfect freedom [for mankind] to order their actions and dispose of their possessions and persons as they think fit.” [FN33] Locke's conception of liberty is closely tied, if not indistinguishable from, equality:
A state also of equality, wherein all the power and jurisdiction is reciprocal, no one having more than another; there being nothing more evident than that creatures of the same species and rank, promiscuously born to all the same advantages of nature and the use of the same faculties, should also be equal one amongst another without subordination or subjection. [FN34]
Locke describes the social contract -- the intervention of the laws -- as irreparably altering the state of nature. As discussed below, the story Locke tells about the social contract is a story of a Fall: the story of how mankind devolved from its state of perfect liberty and provoked the distribution (and necessarily partial forsaking) of liberty. Locke implies that if mankind had maintained the state of nature, had not “fallen,” rules, laws and the attendant loss of liberty would never have been necessary. [FN35]
It follows, then, that if one maintains that cyberspace is not “fallen,” that it is still paradise, then rules and laws are not necessary there either. And this is just the conclusion that Barlow makes in his Declaration. The occasion for the Declaration was, in fact, the passage of the Telecommunications Act of 1996. To this attempt to restrict and regulate cyberspace content, Barlow responded: “I declare the global social space we are building to be naturally independent of the tyrannies you *236 seek to impose upon us.” [FN36] Cyberspace, according to the idealist view, is a paradise that needed no externally imposed laws.
Cyberspace idealism has undergone an interesting transformation in recent years. Contemporary antiregulation rhetoric is more often than not characterized in free speech terms akin to John Stuart Mill's “marketplace of ideas” instead of Locke's “liberty.” In 1990 Barlow, along with John Gilmore and Mitch Kapor, founded the Electronic Frontier Foundation (EFF) an organization that has gained considerable influence in the debate over cyberspace regulation. The EFF's stated purpose is to protect “rights in cyberspace” and fight off “bad legislation.” [FN37] It was established, according to its founders, in response to a basic threat to speech. [FN38] The EFF's rhetoric does not have the anarchic tone of Barlow's manifesto (“I declare the global social space we are building to be naturally independent of the tyrannies you seek to impose on us”), [FN39] but is grounded instead in law itself, specifically, the First Amendment.
The evolution of cyberspace idealists' relationship to the law is interesting for many reasons. It is unclear what really drove the shift from anarchism to civil liberties -- was it merely an inevitable tempering of radical views over time? A sense of resignation (if you can't beat 'em, join 'em)? Or does it indicate some more fundamental change in understanding, perhaps a recognition that there is no liberty without law?
The most notable characteristic of this updated rhetoric, though, is how it simultaneously invokes and obscures the importance of law. This new idealism still insists that cyberspace is a realm of unfettered freedom, where liberty, now most often framed as freedom of speech, is maximized to a degree unmatched in the real world: “In countless ways, the Internet is radically enhancing our access to information and empowering *237 us to share ideas with the entire world. Speech thrives online, freed of limitations inherent in other media and created by traditional gatekeepers.” [FN40] Cyberspace, it is claimed, is the genuine marketplace of ideas, where anyone can speak and where the best ideas will prevail. Attempts to regulate website content or restrict access to certain sites interfere with this great egalitarian enterprise. Thus, the EFF warns: “If laws can censor you, limit access to certain information, or restrict use of communication tools, then the Internet's incredible potential will go unrealized.” [FN41]
According to this vision, cyberspace is a place where, left alone, the great project of freedom is being realized. Idealists believe that this status quo is the fully-functioning marketplace of ideas, a site of genuine liberty and equality that is interrupted by regulation efforts. Thus, any attempt to change the status quo is viewed as prima facie illegitimate and liberty-depriving. According to cyberspace idealists, the regulation of Internet speech can only deprive its users of liberty. This view necessarily ignores the fact that cyberspace's very legitimacy is grounded in a highly legalistic conception of free speech. [FN42]
II. UNWILLING AVATARS: THE FALL
Cyberspace idealism unsurprisingly appeals to individuals who feel their life experiences have been restricted by their physical identity: by their social status, their age, their gender, or their physical appearance. Going online allows these individuals to experience a certain kind of positive disembodiment. One's “real” race, gender, age, and social status need never be disclosed in cyberspace, and so negative stereotypes that may *238 attach to any of those attributes can be avoided in a way not possible in real life. Particularly for historically marginalized groups, the power to re-create oneself and control the public representation of one's identity through avatars can be liberating.
What happens, then, when individuals are not in control of their online embodiment? What if one is embodied against one's will, in places that one never chose to enter, in ways one never consented to be shown, in graphic and vicious detail for all the world to see and which may be impossible to erase? We would surely describe that experience as a profound loss of liberty, the very antithesis of the freeing process of avatar creation. A world populated by an increasing number of unwilling avatars, reduced to their physical characteristics, caricaturized, ventriloquized and under attack, looks much more like hell than paradise.
A. Bringing in the Women
Christina McCormack [FN43] had been dating fellow University of Georgia student Richard Baker only a short while before things got serious. According to Baker, they moved in together, got a dog, and exchanged promise rings. [FN44] They broke up in January 2007. When a male friend stayed at McCormack's place for a few days, Baker became enraged. He hacked into McCormack's MySpace account and sent messages to McCormack's friend in her name. These messages included claims that McCormack had certain medical conditions and that she was still in love with Baker. [FN45] Baker installed spyware on McCormack's computer so that he could track her Internet use and gain access to her IDs and passwords. Finally, he uploaded naked pictures of McCormack (which he had obtained without consent) on his Facebook page. In May 2008, Baker was charged with 32 felonies. News reports as of this writing indicate *239 that he is currently free on bond, awaiting trial. [FN46]
Sayani Chakraborty had never been a member of Orkut, a social networking site similar to Facebook and MySpace, but she discovered that someone had created a profile of her on the site and used it to send offensive messages to her family and friends. [FN47] Someone created a similar profile for a schoolgirl in Delhi, complete with obscene photographs and the girl's home address and telephone number. [FN48] The profile came to light after her family began receiving calls asking to speak with the girl and referencing the Orkut profile. Eventually, two men came to her home claiming that the girl had invited them over for sex. [FN49]
An Oklahoma State University sophomore named James Cory Lanier videotaped himself and his 19-year-old girlfriend having sex. [FN50] After the woman broke up with him, Lanier threatened her with physical violence and promised to “ruin her life.” [FN51] He threatened to upload the videos of the two having sex to the Internet unless she agreed to continue having sex with him. His ex-girlfriend reported him to the police, and Lanier was charged with felony blackmail. That charge was eventually dismissed, and Lanier pleaded guilty to disorderly conduct. [FN52]
*240 The owners and operators [FN53] of the message board AutoAdmit.com, which they characterized as a forum where individuals could share information about law firms, clerkships, and succeeding in law school, claimed that it was by “respect[ing] the merits of the free, uninhibited exchange of ideas” that the site became the most successful and informative law school discussion board on the Internet. [FN54] In March 2005, Brian Leiter highlighted the pervasive racism and sexism on AutoAdmit [FN55] on his blog, Leiter Reports. The message board achieved increased notoriety in April 2007 after The Washington Post ran an article about sexist, obscene and racist posts on the site, focusing on the particularly vicious attacks on female law school students. [FN56] These posts included links to pictures of many of these students, with entire message threads devoted to “ranking” the women's bodies, discussing their alleged sexual activities and expressing what users would like to do with them sexually in graphic and often violent detail. [FN57] The women in question were frequently targeted by name, while their attackers posted under pseudonyms. Several of the women targeted knew nothing about the site prior to the Post article, and only found out about it when the threads came up on Google searches or when friends alerted them. [FN58] Some of the women attacked on the site contacted the site's administrators requesting that the abusive posts be removed, only to be told that no post would be *241 “censored.” [FN59] In some cases, the administrators posted the women's complaints on the site, leading to further derogatory name calling and threats to punish them with rape, stalking, or other abuse. [FN60] In some of these cases, users posted the women's home addresses and phone numbers. [FN61]
Kathy Sierra is a programming instructor and a game developer who runs a blog called Creating Passionate Users. This blog is centered on discussions about “designing software that makes people happy.” [FN62] At about the same time as the AutoAdmit controversy broke, Sierra began receiving death threats in the comments section of her blog. [FN63] Someone wrote about slitting her throat and ejaculating; another posted her photo alongside an image of a noose with a caption: “The only thing Kathy has to offer is that noose in her neck size.” [FN64] On an external site, a user posted a manipulated photo that appeared to show Sierra with underwear across her face, struggling to breathe. The picture was captioned: “I dream of Kathy Sierra ... head first.” [FN65] Sierra canceled several speaking engagements and suspended her blog in the wake of the threatening posts. [FN66]
Chelsea Gorman was a freshman at Vanderbilt University when she was raped on her way to campus one evening. Gorman left school for that semester, struggling with panic attacks and self-blame. When she returned to school in the fall of 2007 she had only told her family and a few friends about the rape. In *242 March 2008, a friend at another college called to tell her that someone had posted about her rape on a gossip site called JuicyCampus.com. On the Vanderbilt University page of the site, there was a post titled “Chelsea Gorman deserved it.” The post not only announced the rape, but went on to read: “what could she expect walking around there alone. Everyone thinks she's so sweet but she got what she deserved. wish i had been the homeless guy that f ***** her.” [FN67] The post became the talk of Vanderbilt's campus--both the virtual one on JuicyCampus and the real one Gorman had to face every day. [FN68]
Nicole Catsouras was eighteen years old when she died in a horrific car accident. On October 31, 2006, she and her father had an argument, and he confiscated the car keys as punishment. Later that day, Nicole snuck out, taking the car keys with her. Fifteen minutes later, she crashed into a freeway tollbooth at a speed of over 100 miles per hour. The collision mangled her body, nearly decapitating her. The police photographs of the accident were leaked and published online. The gruesome images began to appear in chat rooms and fetish websites where users would discuss, among other things, how Nicole “deserved” what happened. A MySpace user posted the pictures along with sexualized commentary about Nicole; another created a fake profile of Nicole that included a close-up of her remains. [FN69] Someone posted the Catsouras' home address and encouraged others to harass the family. Nicole's parents received numerous pseudonymous emails and text messages that included the photos, along with vicious captions. They attempted to convince web site owners to take down the pictures, but met with little success: “We've asked them to please take down the pictures, and they've said, ‘No, I don't have to because I've got my First *243 Amendment rights',” says Nicole's mother, Lesli Catsouras. [FN70] Nicole's family uploaded a memorial video of Nicole on YouTube, hoping that it would help show that they “are a family with real hearts, and it hurts what people are doing.” [FN71] A number of vicious and sexist pseudonymous comments were posted on YouTube in response, including the following: “she got what she deserved ... you wanted equality, fine, fuck that stupid cunt ... hahahaha, she got what she deserved ....” [FN72]
The phenomenon of unwanted online embodiment is by no means a new one. Cyber harassment has existed since the first cyberspace communities were created. Julian Dibbell's now infamous article, “A Rape in Cyberspace,” describes one such early instance of virtual violence. [FN73] LambdaMOO is a still-existing virtual community founded in 1990 by Pavel Curtis. A MOO is a kind of MUD (short for multi-user dimension/dungeon), which is a multi-user, real-time virtual world and stands for MUD, Object Oriented. The object orientation refers to the way that users can change the server interface by adding new objects and rooms. In 1993, a user called Mr. Bungle, who had obtained “voodoo power” through his high standing in the LambdaMOO community, used that power to commit virtual “rapes” of several female characters and one character of indeterminate gender.
[Bungle] could take over the voices and actions of other characters and make them appear to do things they did not really do .... He invoked this power, in this public space, and took over the voices of these people. Once *244 they were in his control, Bungle ‘raped’ these women, violently and sadistically, and made it seem as if they enjoyed the rape. [FN74]
Dibbell offers this description of how the virtual violence affected the real-life women whose avatars were assaulted:
[T]he woman in Seattle who had written herself the character called legba, with a view perhaps to tasting in imagination a deity's freedom from the burdens of the gendered flesh, got to read ... sentences in which legba, messenger of the gods, lord of crossroads and communications, suffered a brand of degradation all-too-customarily reserved for the embodied female. [FN75]
The Bungle incident was not unique, either. Dibbell and others relate that female-identified MUDers frequently experienced sexual attacks. [FN76]
In 1995, a University of Michigan student named Jake Baker submitted a story about raping, torturing, and murdering a fellow student to alt.sex.stories Usenet group. Baker used the fellow student's real name in the story. Once notified of the incident, the University of Michigan police searched Baker's computer and found several similar stories on his hard drive, along with email correspondence with a man named Arthur Gonda. This correspondence included details of plans for the two men to meet in order to carry out the real-life rape, torture and murder that they fantasized about. Judge Avern Cohn dismissed the case, ruling that there was no evidence Baker *245 actually intended to act out his fantasies. [FN77]
Sites that thrive on gossip and insults, like AutoAdmit and JuicyCampus (JuicyCampus has now folded, only to be replaced by another college campus gossip site [FN78]), direct much of their negative attention to women and girls, many of whom do not themselves participate in these online communities. The comments sections of many online newspapers, blogs, and video hosting sites are rife with obscene, sexist abuse targeted at specific women. Social networking sites such as Facebook and MySpace have become highly effective outlets for vengeful men to attack ex-girlfriends, and an extraordinary number of sites are exclusively devoted to “revenge porn,” which is defined by the Urban Dictionary as “[h]omemade porn uploaded by an ex girlfriend or (usually) ex boyfriend after particularly vicious breakup as a means of humiliating the ex or just for own amusement.” [FN79] An entire class of web sites caters to fetishizing real-life violence, a number of which explicitly favor pictures of female victims. [FN80]
B. Cyberspace as a State of License
Part 1 noted the similarity between the way cyberspace *246 idealists describe cyberspace and the way John Locke describes the state of nature as one of perfect liberty. The examples given above tell a very different story. They paint a world in which only certain individuals enjoy the mythic degree of liberty and freedom from physical restraints touted by cyberspace idealists, while others experience a loss of liberty and a re-entrenchment of physical restraints already unequally imposed upon them in the offline world. Women targeted by cyber harassment experience restrictions in liberty both in cyberspace and out of it. They experience new levels of objectification, confronting reductions of themselves to sexualized body parts in message boards, chat rooms, social networking sites, and Google searches. Women who have been targeted by cyber harassment avoid certain sites to avoid being attacked; they close down email accounts that have been flooded with abusive and obscene messages; they shut down blogs; in some cases, they withdraw from what were lucrative and vibrant online presences. The losses of liberty follow them offline, as well: they face harassment and slander stemming from online attacks in their workplaces and schools, leading them to quit or change jobs and universities; they change their daily routines for fear of being stalked or physically assaulted; they are sometimes stalked, assaulted or even killed by their online harassers. [FN81]
Some of the other harms, especially hedonic ones, are harder to quantify but are no less powerful for the toll that harassment takes on women's sexual identity, which can be extreme and enduring. [FN82] Sexual autonomy is undoubtedly an important aspect of liberty; sexually autonomous agents do not repress, denigrate, or distance themselves from their sexuality because of fear of ridicule, threats, or vengeful disclosure of private intimate acts. Yet in an environment where women are frequently subjected to unwanted sexual attention, harassment, and public shaming for their sexuality, this is precisely what *247 some women are forced to do. [FN83]
Locke's notion of liberty, like that of many others, is tied to equality and independence and is not to be understood as something that can be used to harm others. As mentioned above, Locke explicitly distinguishes between the state of liberty and what he called the “state of license.”
But though this be a state of liberty, yet it is not a state of licence: though man in that state have an uncontrollable liberty to dispose of his person or possessions .... The state of nature has a law of nature to govern it which obliges every one: and reason, which is that law, teaches all mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions. [FN84]
Where cyber harassment persists unchecked, women are not treated as equal members of society. Harassers use their freedom to deny freedom to the women they attack, an exercise not of liberty, but license.
Efforts to regulate Internet harassment, for example by limiting the veritable immunity provided to web hosts by CDA § 230, have been characterized as ruinous attempts to destroy cyberspace paradise. Reforming CDA § 230 is of course not the only possible legal response to online harasment, and the task of reform would require difficult balancing, but increased regulation is not per se inconsistent with liberty. Cyberspace has never been a state of perfect or even almost perfect liberty. It has always been a realm of unequal distributions of liberty and license. The notion of cyberspace as a paradise is fictional, unless what one means by paradise is a place where certain groups (e.g., men) have disproportionate access to liberty over *248 other groups (e.g., women). [FN85] If cyberspace ever had the potential to become a paradise, its fall was caused by its own inhabitants-- by the cyber harassers.
Locke writes that when mankind finds itself unable to preserve the state of nature, it necessarily must establish the rule of law. [FN86] If individuals abuse their liberty by exercising power in arbitrary and self-interested ways that threaten the security of the whole community, the community will slide into a state of war. [FN87] In a state of war, anyone at any time might be deprived of his or her liberty and possessions. [FN88] To avoid this outcome, the community collectively establishes a central authority and rules to regulate disputes. This necessarily involves giving up some of what Locke considers to be “natural rights” (e.g., the right to personally punish someone who has wronged you). [FN89] But it also results in liberty for more people and security for most of one's other rights. [FN90] Security for the general public--not just for the strongest or most aggressive--is the basis for the forfeiture of some individual power. Put another way, rules ensure a measure of equality for all. [FN91]
The same can be said of regulations of speech on the internet. New legal regulations regarding behavior in cyberspace might indeed mean, in some sense, that some individuals will no longer have the same degree of “liberty” they had previously. It would mean, for example, that cyber harassers could no longer attack women with impunity. But the freedom to harass is an exercise of license, not liberty, and as such is hardly defensible in the first instance. The effects of such license, moreover, are *249 that women as a group suffer a loss of liberty relative to men as a group. Regulation and reform are necessary to balance the equation and create a cyberspace that maximizes liberty for all groups.
C. Tyranny in the Marketplace
As discussed in Part I, much contemporary cyberspace idealism rhetoric is couched in terms of free speech values. Cyberspace, as a great equalizing environment--the great equalizing environment--is often touted as the true marketplace of ideas, where the conventional wisdom that the best response to bad speech is more speech can truly be put into practice. Though the expression “marketplace of ideas” was not his, John Stuart Mill is often heralded as the forefather of the principle of free speech and civil liberties more generally. Thus his theory of liberty is often invoked as a response to calls for regulation of speech on the internet.
Though Mill's On Liberty is a nuanced and enduring dissertation on the complexity of civil liberties, the marketplace of ideas metaphor (and free speech more generally) is often simplistically invoked as an answer to any attempt to regulate content that some group would like to have. The very flexibility of the term, claimed as it is by groups of every ideological and political stripe when it suits them, gives some indication of its conceptual instability. Inasmuch as the metaphor is a coherent one, it has been trenchantly critiqued on many grounds. Serious and important questions include: what counts as an idea? Does anything like a free and equal marketplace for ideas actually exist? Has it ever existed? Is truth actually the highest value of a free society? Can a “marketplace” of ideas produce truth in any case? [FN92]
This Article does not intend to review all the objections to the concept of the marketplace of ideas. Rather, this Article suggests that while Mill does indeed provide a great deal of *250 insight into the debate over cyber harassment, this is precisely because his analysis of liberty and harm is far more sophisticated than suggested by a reactionary and simplistic invocation of the marketplace of ideas. [FN93] The way cyber idealists misunderstand Mill's concept of liberty tracks the way they confuse liberty and license--that is, they mischaracterize the status quo. Cyberspace idealists assume that cyberspace is and always was a paradise that needs only to be defended. But what Mill offers in On Liberty is first and foremost a diagnosis of what is wrong with the status quo, not an idealization of it. It is through recognition of current wrongs that he fashions his recommendations for safeguarding liberty. Cyberspace idealists, when they invoke “free speech” or the “marketplace of ideas” as slogans, ignore this diagnostic dimension. Mill argues that we need to honor principles of free speech precisely because so many individuals and groups are denied the speech and liberty that others enjoy. [FN94] Inasmuch as Mill claimed that the best answer to bad speech was more speech, he understood that this meant changing the conditions under which certain individuals are silenced and intimidated not only by the state, but sometimes, even more despotically, by society itself. [FN95]
Indeed, free speech advocates who maintain that we need only be concerned with the government's interference with free speech--who seem to think only the government can interfere with free speech--can hardly claim Mill as a fellow traveler. To the contrary, Mill was in some ways even more concerned about the way that the majority could exercise tyranny in society than he was concerned about the same tendency in government.
Society can and does execute its own mandates: and if it issues wrong mandates instead of right, or any mandates at all in *251 things with which it ought not to meddle, it practises a social tyranny more formidable than many kinds of political oppression, since, though not usually upheld by such extreme penalties, it leaves fewer means of escape, penetrating much more deeply into the details of life, and enslaving the soul itself. [FN96]
The cyber harassment highlighted in this Article is a form of social tyranny. To argue that women who are targeted by such harassment should simply not participate in cyberspace communities, as many anti-regulation advocates argue, both tacitly endorses the deprivation of their liberty to participate in any communities that they wish to, and ignores the extent to which individuals increasingly cannot simply ignore or exit the harassment they experience. Such harassment follows them into their physical lives, indeed into the “details of their life.”
Mill did not observe the wrongs committed by society with mere regret, believing them a necessary evil that could not be addressed through regulation. Mill called for the restriction of society's interference with the private person.
Protection, therefore, against the tyranny of the magistrate is not enough: there needs protection also against the tyranny of the prevailing opinion and feeling; against the tendency of society to impose, by other means than civil penalties, its own ideas and practices as rules of conduct on those who dissent from them; to fetter the development, and, if possible, prevent the formation, of any individuality not in harmony with its ways, and compel all characters to fashion themselves upon the model of its own. [FN97]
Cyber harassment against women imposes an identity upon them that denies them the liberty exercised by many other groups in *252 cyberspace [FN98]-- liberty to fashion their own existence and to explore dimensions of experience denied to them in their physical reality. When women act in ways that do not conform to cyber harassers' normative view of women, they are punished for it. This of course does not mean that harassment's effects are absolute. It is possible for some women to escape harassment in all contexts and for all women, probably, to escape it in at least some contexts. But tyranny does not have to be absolute to be effective. Oppression need not be experienced by every single member of a group, all of the time, to qualify as such.
To be sure, Mill believed that finding and enforcing the limit of collective opinion's interference with individual identity was a difficult and complex task. He would undoubtedly not have supported a regime that censored, either legally or socially, every bad expression of social opinion. But nor would he have ignored the harms of harassment, especially considering the extent to which these harms can be magnified in cyberspace to affect individuals' liberty both on and offline. A marketplace in which some are threatened, defamed, or harassed by others, where some groups are granted or denied access to the marketplace on that basis, is not a free and open marketplace. Nor is the principle of free speech upheld when some groups are judged not by the value of their speech but by the terms of their unwilling embodiment and objectification.