Internet speech is protected under the First Amendment, for better and worse.
by Noah Berlatsky
June 18, 2014
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Lori Stewart started her blog, This Just In, as a way of writing about gardening and sharing stories about her family. She started a program and related website, Toys for Troops, to send toys to soldiers so they could distribute them to children overseas.
All of which seems uncontroversial enough—but that did not protect Stewart from online harassment. A troll using the name JoeBob began leaving profane, vile comments on her blog, messages filled with curse words and violent fantasies about the death of her son. Stewart tried turning off comments, and JoeBob retaliated by creating an email address under her name to send anti-Semitic and homophobic comments to her friends and family. JoeBob kept up his program of harassment for seven whole years.
JoeBob’s tenacity is perhaps unusual, but online abuse isn’t. What, then, can victims like Stewart do to protect themselves? The answer is often, unfortunately, not much. The journalist Amanda Hess, for example, wrote about receiving death threats. When she called the police, the cop who showed up "anchored his hands on his belt, looked me in the eye, and said, ‘What is Twitter?’"
If online speech is criminalized, it seems likely that the most powerful speakers won't be targeted first.
No doubt there are police out there who have used social media. Still, according to a recent paper from the Center on Law and Information Policy at Fordham Law School, Hess’s experience is not unusual. "Although online harassment and hateful speech is a significant problem, there are few legal remedies for victims," authors Alice Marwick and Ross Miller wrote. Victims who go to the police often find what Hess found; most law enforcement agencies have neither the resources nor the expertise to deal with harassment, and are ill-equipped to even understand the problem, much less take it seriously.
Moreover, the paper says, "internet speech is protected under the First Amendment"—which means it's often very difficult to craft state laws which criminalize harassment. Defamation can be prosecuted in some cases, provided that the defamatory statement can be proved untrue—for example, if a harasser claims a victim has a disease that the victim doesn’t have. True threats can also be prosecuted, where a speaker "means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals."
But the barrier to prosecuting even this sort of harassment is quite high. Marwick and Miller point to the case of United States v. Alkhabaz, in which the defendant described in detail on a Usenet message board violent sexual acts he imagined performing on one of his classmates. The case was eventually thrown out because the defendant did not email the story to his classmate, and did not intend her to see it. As the authors say, "Alkhabaz demonstrates that the burden to determine a 'true threat' is quite high, and presumably most hostile online speech would fail to meet the standard determined by the Sixth Circuit." In fact, Marwick and Miller found very few incidents in which a harasser faced criminal penalties. It hardly ever happens.
Despite such difficulties, it's not clear that it would be a good idea to make it easier to criminalize online speech. As the authors say, "People from all sides of the political, social, and economic spectrum use ‘internet vigilantism’ to target and shame those they disagree with, from Men’s Rights activists shaming feminist filmmakers to feminists shaming writers they believe to be sexist." There are already high-profile discussions which frame activism by women of color online as abusive. If online speech is criminalized, it seems likely that the most powerful speakers won't be targeted first.
So, if the police are unlikely to act, and the First Amendment makes most legal remedies impossible, what can you do?
Practically, the path most victims have taken is to use the legal system not to win a judgment, but to subpoena IP records. Legal proceedings can allow victims to unmask and potentially publicize the names of their anonymous harassers. This is what Lori Stewart eventually did. After going to the police, she was able to discover the harasser's identity; Robin B. King, a 56-year-old Defense Department employee based in the Saint Louis suburbs. (In April, King pleaded guilty to a misdemeanor count of harassment through electronic communication, according to local news reports.)
Unfortunately, even identifying harassers doesn't necessarily stop them. As Marwick told me in an email: "Right now unmasking anonymous users is often seen as the best option by the harassed, often because it's very very difficult to pursue criminal proceedings and service providers are not legally required to remove content or reveal information about their users. However, that doesn't mean it's an effective solution. While the threat of revealing IP addresses and ‘real names’ can deter some harassers, it's certainly not true for all."
Lori Stewart had to actually get a restraining order, and press charges.* Ultimately, the best way to deal with harassment is probably not legal, but communal. Marwick told me that, "there are places on the internet where such harassment does not happen, whether due to the culture and norms of the site, or aggressive moderation." She pointed to Metafilter "which discusses all manner of controversial and personal issues. It costs $5 to set up an account, and postings can easily be flagged and removed." Another example (that Marwick doesn't mention) is Comic Book Resources, a comics website which revamped its message boards after one of its writers received rape and death threats.
Hiring moderators and policing comments can be expensive, and the logistics become very difficult when you're dealing with something as large as Twitter or Facebook. Still, Marwick and Miller suggest that getting Twitter and Facebook to deal more proactively with harassment is likely going to be easier, and more effective, than trying to pass new laws, or increase prosecutions. And smaller venues, too, have a responsibility to prevent harassment and protect users—all the more so since the government is not likely to do it for them.
*Stewart clarifies in the comment section that she has never communicated with King. An earlier version of this story cited Marwick saying Stewart had threatened to reveal King's identity.