Law's expressive value in combating Cyber gender harassment

Michigan Law Review

Volumn 108, Issue 3, 2009, Pages 373-416

  Citron, Danielle Keats ^a  

^a UNIVERSITY OF MARYLAND SCHOOL OF LAW   (United States)

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EID: 71949096865     PISSN: 00262234     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (400)

1. Although its scope is difficult to estimate, one study suggests that approximately 40 percent of female internet users have experienced cyber harassment. Azy Barak, Sexual Harassment on the Internet, 23 Soc. Sci. COMPUTER REV. 77, 81 (2005);
2. see also Francesca Philips & Gabrielle Morrissey, Cyberstalking and Cyberpredators: A Threat to Safe Sexuality on the Internet, 10 CONVERGENCE: INT'L J. RES. INTO NEW MEDIA TECHS. 66, 72 (2004) (estimating that one-third of female internet users have been harassed online). Any existing statistical evidence surrounding cyber gender harassment is likely to underestimate the phenomenon as women tend to underreport it due to feelings of shame and embarrassment.
3. See ATT'Y GEN. TO VICE PRESIDENT, CYBERSTALKING: A NEW CHALLENGE FOR LAW ENFORCEMENT AND INDUSTRY (1999), http://www.usdoj.gov/criminal/cybercrime/ cyberstalking.htm [hereinafter REP. ON CYBERSTALKING]. This is unsurprising given women's underreporting of workplace sexual harassment.
4. Louise Fitzgerald et al., Why Didn't She Just Report Him?, 51 J. Soc. ISSUES 117, 119-21 (1995).
5. Danielle Keats Citron, Cyber Civil Rights, 89 B.U. L. REV. 61, 69-75 (2009).
6. L.P. Sheridan & T. Grant, Is Cyberstalking Different?, 13 PSYCHOL., CRIME & L. 627, 637 (2007) (citing various studies suggesting that the majority of cyber stalking victims were female and their online stalkers were less likely to be ex-partners of the victims).
7. See Barak, supra note 1, at 78-79.
8. Posting of Louisa Garib to On the Identity Trail, Blogging White Female, Online Equality and the Law, http://www.anonequity.org/weblog/archivesA007/08/ blogging-while-female-online-i.php (Aug. 21, 2007, 23:59 EST).
9. See Ellen Nakashima, Sexual Threats Stifle Some Female Bloggers, WASH. POST, Apr. 30, 2007, at Al.
10. See B.J. Lee, When Words Kill: Suicide spurs bid to regulate the net in South Korea, NEWSWEEK.COM, Oct. 15, 2008, http://www.newsweek.com/id/164013
11. Nakashima, supra note 6; see also, e.g., Posting of womensspace to Women's Space, Blogging White Female. Hacking as Sexual Terrorism, http://www.womensspace.org/phpBB2/2007/08/06/blogging-while-female-men-win- hacking-as-sexual-terrorism/ (Aug. 6, 2007) (explaining that she shut down her women's issues website due to cyber harassment that included threats of violence, technological attacks, and publication of her home address).
12. See Posting of Louisa Garib to On the Identity Trail, supra note 5.
13. A digital native is 7a person for whom digital technologies already existed when they were born," and who has "grown up with digital technology such as computers, the Internet, mobile phones and MP3s." Wikipedia, Digital Native, http://en.wikipedia.org/wiki/Digital-native (last visited Aug. 29, 2009).
14. Posting of Rev. Billy Bob Gisher to Less People Less Idiots, Silence of the hams, http://lessidiots.blogspot.com/2007/04/silence-of-hams.html (Apr. 3, 2007, 16:19 EST) (on file with author).
15. Posting of Markos Moulitsas to Daily Kos, Death threats and blogging, http://www.dailykos.com/story/2007/4/12/22533/9224 (Apr. 11, 2007, 23:45 PDT).
16. Posting of Susannah Breslin to The XX Factor, Is Blogging While Female Really So "Perilous"?, SLATE, http://www.slate.com/blogs/blogs/ xxfactor/archive/2009/03/13/is-blogging-while-female-really-so-perilous.aspx (Mar. 13, 2009, 17:03 EST) (arguing that the web is an equal-opportunity attack forum and thus urging women to "get over yourselves"); Comment of Fistandantalus to Posting of Rev. Billy Bob Gisher to Less People Less Idiots, Silence of the hams, http://lessidiots.blogspot.com/2007/04/silence-of-hams.html (on file with author).
17. See, e.g., PAUL BOCIJ, CYBERSTALKING: HARASSMENT IN THE INTERNET AGE AND HOW TO PROTECT YOUR FAMILY 17 (2004).
18. ROBIN WEST, CARING FOR JUSTICE 96 (1997).
19. Id.
20. CATHARINE A. MACKINNON, SEXUAL HARASSMENT OF WORKING WOMEN: A CASE OF SEX DISCRIMINATION xi (1979).
21. See, e.g., Posting of Danielle Citron to Concurring Opinions, Zuckerberg's Law on Data Sharing, Not Puffery, http://www.concurringopinions. com/archives/2009/07/zuckerbergs-law-on-data-sharing-not-puffery.html (July 16, 2009, 12:32 EST) (explaining that as of July 2009, Facebook had 250 million members, up from 150 million in January 2009).
22. Michael Tennesen, Avatar Acts: When the Matrix Has You, What Laws Apply to Settle Conflicts?, Sci. AM., July 2009, at 27;
23. see also Regina Lynn, Virtual Rape Is Traumatic, but Is It A Crime?, WIRED.COM COMMENT.-SEX DRIVE, May 4, 2007, http://www.wired.com/culture/ lifestyle/commentary/sexdrive/2007/05/sexdrive-0504;
24. Posting on Tech FAQ, Second Life virtual rape, http://www.tech-faq.com/ blog/second-life-virtual-rape.html (last visited Aug. 29, 2009) (explaining that a Belgian user of Second Life was forced to perform sexually explicit acts after being given a "voodoo doll," a piece of code that takes the form of a regular object such as a cup or pen but in fact takes control of your avatar).
25. Citron, supra note 2.
26. Cf. Kimberlé Williams Crenshaw, Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law, 101 HARV. L. REV. 1331, 1335 (1988) (describing the importance of an antidiscrimination message to combat racial subordination).
27. Brian Leiter aptly calls social networking sites that house and encourage such gender harassment "cyber-cesspools." Brian Leiter, Cleaning Cyber-Cesspools: Google and Free Speech 1 (Nov. 21, 2008) (unpublished manuscript, on file with author).
28. Online harassment is also targeted at gay men-the harassment similarly invokes targeted individuals' gender in a sexually threatening manner. For instance, anonymous posters on the high school gossip site Peoples Dirt noted that named male students were gay and threatened them with violence. A posting under a male student's name asserted "we know your [sic] g@y .. . just come out of the closet.. . and you should choke on a dick and die."
29. Posting of Danielle Citron to Concurring Opinions, Peoples Dirt, Now Terrorizing High Schoolers Everywhere, http://www.concurringopinions.com/ archives/2009/05/peoples-dirt-now-terrorizing-high-schoolers-everywhere.html (May 18, 2009, 15:05 EST) (alteration in original). Anonymous posters on the Encyclopedia Dramatica site direct sexually threatening taunts to named gay men. Posters accused a man of having an incestuous relationship with his brother and a bestial relationship with his dog.
30. Encyclopedia Dramatica, Chris Cocker, http://www. encyclopediadramatica. com/Chris-Crocker (last visited Aug. 29, 2009).
31. Sheridan & Grant, supra note 3, at 67. A 2003 study of 169 individuals who reportedly experienced cyber harassment found that 62.5 percent of the respondents were female. Paul Bocij, Victims of Cyberstalking: An Exploratory Study of Harassment Perpetrated via the Internet, FIRST MONDAY, Oct. 6, 2003, http://firstmonday.org/htbin/cgiwrap/bin/ojs/index.php/fm/article/ view/1086/1006. The harassment consisted of threatening or abusive email messages, threats or abusive comments via IM messages, threats or abusive comments in chat rooms, the posting of false rumors in chat rooms, impersonation of individuals in e-mail messages to friends, and encouragement of others to harass or threaten the respondent.
32. Id.
33. WORKING TO HALT ONLINE ABUSE, 2007 CYBERSTALKING STATISTICS 1, http://www.haltabuse.org/resources/stats/2007Statistics.pdf. Eighteen percent of those reporting cyber harassment did not report their gender.
34. Id.
35. WORKING TO HALT ONLINE ABUSE, 2006 CYBERSTALKING STATISTICS 1, http://www.haltabuse.org/resources/stats/2006Statistics.pdf.
36. WORKING TO HALT ONLINE ABUSE, CYBERSTALKING COMPARISON STATISTICS 2000-2008 1, http://www.haltabuse.org/resources/stats/Cumulative2000-2008.pdf. Five and one-half percent of the reporting individuals refused to provide their gender to the organization.
37. Id.
38. Id.
39. Id. at 2.
40. Christine Petrozzo & Sarah Stapp, To catch a predator: How some cyber-agencies help victims fight back against online aggression, DAILY ORANGE (Syracuse, N.Y), Jan. 24, 2008, http://media.www.dailyorange.com/media/storage/ paper522/news/2008/01/24/News/To.Catch.A.Predator-3165676.shtml#cp-article- tools.
41. See Robert Meyer & Michael Cukier, Assessing the Attack Threat due to IRC Channels, in PROCEEDINGS OF THE INTERNATIONAL CONFERENCE ON DEPENDABLE SYSTEMS AND NETWORKS 467 (2006), available at http://www.enre.umd.edu/content/ rmeyer-assessing.pdf. Chat rooms using IRC protocol permit live conversations via the internet, containing as many as several thousand people, whereas other chat programs such as MSN messenger and Yahoo focus on two-person conversations.
42. Id. Users can join existing discussions or create new ones. BOCIJ, supra note 14, at 126. "Estimates of the number of publicly accessible channels available [on IRC] range from 100,000 to more than 580,000."
43. Id. (citation omitted).
44. Meyer & Cukier, supra note 31, at 469. The researchers used simulated users with female names Cathy, Elyse, Irene, Melissa, and Stephanie, and simulated users with male names Andy, Brad, Dan, Gregg, and Kevin.
45. Id. at 469-470
46. Id. at 470.
47. Id. at 471.
48. See, e.g., Jessica Valenti, How the web became a sexists' paradise, GUARDIAN, Apr. 6, 2007, at 16, available at http://www.guardian.co.uk/world/ 2007/apr/06/gender.blogging (describing anonymous posters' attack of women bloggers with comments such as "I would fuck them both in the ass," and "hate-fuck[]" them) (internal quotation marks omitted);
49. Posting of Lisa Stone to BlogHer, Hating Hate Speech: Safety for Kathy Sierra and all women online, http://www.blogher.com/node/17319 (Mar. 27, 2007, 01:47 EST) (explaining that countless women have been threatened with rape, dismemberment, and violent images in online forums such as message boards and blog comments).
50. Technologist Robert Scoble explains that "whenever [he] post[s] a video of a female technologist [on his blog] there invariably are snide remarks about body parts and other things that simply wouldn't happen if the interviewee were a man." Lynn Harris, Death threats dog female blogger, SALON, Mar. 28, 2007, http://www.salon.com/mwt/broadsheet/2007/03/28/kathy-sierra/print. html.
51. Barak, supra note 1, at 79;
52. see also, e.g., Comment of idiolect to Posting of Vanessa to Feministing, Listen Up: Bloggers Discuss Online Harassment, http://www.feministing.com/ archives/013176.html (Jan. 18, 2009, 14:52 EST) (explaining that during online discussion, commentator called her a "bitch/whore/cunt" and posted a giant picture of young anime girl's face beaten, black-eyed, and bloody with the following text: "Who told you could leave the kitchen? ... Either make me a sandwich or [shut the fuck up].") (emphasis omitted).
53. Posting of Alyssa Royse to BlogHer, Rape and Death and Batman, OH MY!, http://www.blogher.com/rape-and-death-and-batman-oh-my (Aug. 3, 2008, 11:42 EST). As a writer for the Austin Chronicle reports, "[t]here are endless examples of female bloggers coming under the knife for being bitches or media whores, while male bloggers' gender is either ignored or heralded."
54. Sofia Resnick, Gloves Off: The perils of being a female blogger, AUSTIN CHRON., Mar. 6, 2009, http://www.austinchronicle.com/gyrobase/Issue/print?oid- 751511.
55. Stone, supra note 35.
56. Greg Sandoval, Blogger cancels conference appearance after death threats, CNET NEWS BLOG, Mar. 26, 2007, http://www.news.com/8301-10784-3-6170683-7.html.
57. See Dahlia Lithwick, Fear of Blogging: Why women shouldn't apologize for being afraid of threats on the Web, SLATE, May 4, 2007, http://slate.com/ toolbar.aspx?action=print&id=2165654; Dan G, http://dan100.blogspot.com/ 2007/03/paynter-and-locke-never.html (March 27, 2007, 14:10 EST).
58. Sandoval, supra note 40.
59. Valenti, supra note 35. Ms. Sierra explained that "[p]eople are posting all my private data online everywhere-social-security number, and home address-a retaliation for speaking out."
60. Id. (internal quotation marks omitted).
61. Id.
62. See Blog death threats spark debate, BBC NEWS, Mar. 27, 2007, http://news.bbc.co.uk/go/pr/fr/-/2/hi/technology/6499095.stm.
63. Comment of Kathy Sierra to Posting of Kaimipono D. Wenger to Concurring Opinions, CCR Symposium: A Behavioral Argument for Stronger Protections, http://www.concurringopinions.com/archives/2009/04/ccr-symposium-a-1. html#comments (Apr. 18,2009,14:25 EST).
64. In just over eighty message threads, posters discuss Ms. Filipovic-her whereabouts and looks-often with threatening, sexually explicit language. See E-mail from Jill Filipovic to Danielle Citron, Professor of Law, University of Maryland (March 6, 2009,11:57 EST).
65. See Posting of honk if you are nigger to AutoAdmit, http://www.xoxohth. com/thread.php?thread-id=331077 (Jan. 2, 2006, 19:17 EST).
66. See E-mail from Jill Filipovic to Danielle Citron, Professor of Law, University of Maryland (March 6, 2009,11:43 EST).
67. Posting of Jill to Feministe, A Follow-Up, http://www.feministe.us/blog/ archives/2006/01/04/a-follow-up/ (Jan. 4, 2006, 01:05 EST).
68. Posting of Shotgun Ned to Auto Admit, http://www.xoxohth.com/thread. php7thread-id-612665&mc=96&forum-id=2 (Apr. 13, 2007, 15:14 EST);
69. see also Posting of Jill to Feministe, Greatest Hits: The Public Woman, http://www.feministe.us/blog/archives/2007/08/08/greatest-hits-the-public-woman/ (Aug. 8, 2007, 15:38 EST).
70. Posting of AK47 to AutoAdmit, http://www.xoxohth.com/thread.php?thread- id-613845&mc=32&forum-id=2 (Apr. 15, 2007, 19:09 EST).
71. Posting of AK47 to AutoAdmit, http://www.xoxohth.com/thread.php?thread- id-613845&mc=32&forum-id=2 (Apr. 15, 2007, 19:12 EST).
72. AutoAdmit Message Thread, Official Jill Filipovic RAPE thread, http://www.xoxohth.com/thread.php?thread-id=621704&mc=10&forurr-id=2 (last visited Aug. 30, 2009).
73. AutoAdmit Message Thread, I have it on good authority that Jill F has rape fantasies, http://www.autoadmit.com/thread.php?thread-id=613270&mc= 1&forum-id=2 (last visited Aug. 30, 2009).
74. See AutoAdmit Message Thread, Legal Liability from posting pic showing Jill fucking?, http://www.xoxohth.com/thread.php?thread-id=613867&mc= 31&forum-id=2 (last visited Aug. 30, 2009).
75. See E-mail from Jill Filipovic to Danielle Citron, Professor of Law, University of Maryland (March 6, 2009,11:57 EST).
76. Telephone Interview with Jill Filipovic (Mar. 6, 2009) (notes on file with author).
77. Id.
78. Id.
79. Id.
80. Id.
81. Id.
82. Id.
83. Posting of Alyssa Royse to Start Her Up: For Women Entrepreneurs on SEATTLEPI.COM, Business Lessons from Batman and The Dark Knight, http://blog.seattlepi.com/startherup/archives/145063.asp (Aug. 2, 2008, 08:50 EST).
84. Alyssa Royse, supra note 38.
85. Id.
86. Id.
87. Id.
88. Id.
89. Comment of Alyssa Royse to Posting of Alyssa Royse to BlogHer, Rape and Death and Batman, OHMY!, http://www.blogher.com/rape-and-death-and-batman-oh-my (Aug. 4, 2008, 17:38 EST).
90. Christina Chatalian, Cyber stalker terrorizing family: Former Syracuse woman becomes a target of cyber harassment, CNYCENTRAL.COM, Feb. 15, 2008, http://www.cnycentral.com/news/news-story.aspx?id=96646.
91. Id. 74. Id.
92. Comment of Mary Sisson to Christina Chatalian, Cyber stalker terrorizing family: Former Syracuse woman becomes a target of cyber harassment, CNYCENTRAL.COM, http://www.cnycentral.com/news/news-story.aspx?id=96646 (Feb. 18, 2008, 18:01 EST).
93. See Debra Michals, Cyber-Rape: How Virtual Is It?, Ms., Mar./Apr. 1997, at 68, 69-70.
94. Id. at 69.
95. Id.
96. Id. at 70.
97. See, e.g., Encyclopedia Dramatica, Cheryl Lindsey Seelhoff, http://www.encyclopediadramatica.com/Cheryl-Lindsey-Seelhoff (last visited Aug. 13, 2009).
98. Posting of Jill to Feministe, What do we do about online harassment?, http://www.feministe.us/blog/archives/2007/08/09/what-do-we-do-about-online- harassment/ (Aug. 9, 2007, 22:36 EST);
99. Cheryl Lindsey Seelhoff, http://wwwencyclopediadramatica.com/index.php? title-Cheryl-Lindsey-Seelhoff Gast visited March 3, 2008).
100. See Encyclopedia Dramatica, Applemilk1988, http://www. encyclopediadramatica.com/Applemilk1988 Gast visited Aug. 13, 2009) [hereinafter Applemilk1988 Entry].
101. Id.
102. Pat Miller, Another Rape in Cyberspace, CERISE, NOV. 2007, http://cerise.theirisnetwork.org/archives/188.
103. Id.
104. Id. (internal quotation marks omitted).
105. Applemilk1988 Entry, supra note 82.
106. See Miller, supra note 84.
107. This statement is particularly true for heterosexual men who are less likely to face sexual intimidation by women or homosexual men, but less true for gay men who confront sexual taunts when others perceive them as effeminate. See Jerry Finn, A Survey of Online Harassment at a University Campus, 19 J. INTERPERSONAL VIOLENCE 468 (2004).
108. WEST, supra note 15, at 102-103 (discussing real space rape) (emphasis omitted).
109. See Martha Nussbaum, Objedification and Ressentiment 18-20 (Nov. 21-22, 2008) (unpublished manuscript, on file with author).
110. LENORA M. LAPIDUS et al., THE RIGHTS OF WOMEN: THE AUTHORITATIVE ACLU GUIDE TO WOMEN'S RIGHTS 180 (4th ed. 2009) (describing incidence of rape in United States). To the extent that we see men experience threats of sexual violence online, the victims are gay men.
111. See Posting of Danielle Citron to Concurring Opinions, supra note 23.
112. Sheridan & Grant, supra note 3, at 637.
113. See Female Bloggers Face Harassment, WOMEN IN HIGHER EDUC, June 2007, at 5.
114. Nakashima, supra note 6 (explaining that women attacked online by anonymous posters suspend their blogging, turn to private forums, or use gender-neutral pseudonyms).
115. See Comment of Alyssa Royse to Posting of Alyssa Royse to BlogHer, supra note 71.
116. Comment of CL. to Posting of Danielle Citron to Concurring Opinions, Cyber Harassment: Yes, It is a Woman's Thing, http://www.concurringopinions.com/ archives/2009/03/cyber-harassmen.html (March 12, 2009, 22:37 EST).
117. See Ellen Nakashima, Harsh Words Die Hard on the Web; Law Students Feel Lasting Effects of Anonymous Attacks, WASH. POST, Mar. 7, 2007, at Al.
118. Tracy L.M. Kennedy, An Exploratory Study of Feminist Experiences In Cyberspace, 3 CYBERPSYCHOL. & BEHAV. 707, 716 (2000).
119. Dahlia Lithwick, Fear of Blogging: Why women shouldn't apologize for being afraid of threats on the Web, SLATE, May 4, 2007, http://www.slate.com/id/ 2165654 (internal quotation marks omitted).
120. Kennedy, supra note 99, at 716.
121. Valenti, supra note 35 (internal quotation marks omitted).
122. Kathryn Abrams, Gender Discrimination and the Transformation of Workplace Norms, 42 VAND. L. REV. 1183,1206 (1989) [hereinafter Abrams, Transformation].
123. See supra notes 80-81 and accompanying text (describing activities of Anonymous).
124. See, e.g., Posting of Alyssa Royse to BlogHer, supra note 38.
125. Id.
126. Nakashima, supra note 6 (internal quotation marks omitted).
127. See Vicki Schultz, Reconceptualizing Sexual Harassment, 107 YALE L.J. 1683, 1763-1765 (1998) (conceptualizing hostile-work-environment harassment as a means for men to preserve dominance in favored types of work by undermining women's effectiveness on the job through demeaning comments, deliberate sabotage, and refusals to provide women support they need on the job).
128. Kathryn Abrams, The New Jurisprudence of Sexual Harassment, 83 CORNELL L. REV. 1169, 1207 (1998) [hereinafter Abrams, New Jurisprudence].
129. Posting of John Hawkins to Right Wing News, Blogging While Female Part 2: Five Women Bloggers Talk About Gender Issues And The Blogosphere, http://www.rightwingnews.com/mt331/2008/03/blogging-while-female-part-2-5-1.php (Mar. 18, 2008 11:30 EST) (interviewing blogger Ann Althouse).
130. Abrams, New Jurisprudence, supra note 109, at 1208.
131. See KENJI YOSHINO, COVERING: THE HIDDEN ASSAULT ON OUR CIVIL RIGHTS 22, 144 (2006) [hereinafter YOSHINO, COVERING]. Discrimination has long forced women to pass as men to gain access to professions or relationships that would otherwise have remained unavailable to them.
132. See also, e.g., MARJORIE GARBER, VESTED INTERESTS: CROSS-DRESSING & CULTURAL ANXIETY 6770 (1992). Kenji Yoshino identifies films such as Yentl and Boys Don't Cry as examples of female passing.
133. Kenji Yoshino, Covering, 111 YALE L.J. 769, 926 & n.880 (2002) [hereinafter Yoshino, Covering].
134. Debra Winter & Chuck Huff, Adapting the Internet: Comments from a Women-Only Electronic Forum, AM. SOCIOLOGIST, Spring 1996, at 30, 45;
135. see also Kennedy, supra note 99 (explaining that female bloggers have changed their gender presentation online to protect themselves from attack after hearing about others' cyber harassment experiences);
136. Elaine Vigneault: Read My Mind, To Ignore Violence Is to Condone It, http://www.elainevigneault.com/to-ignore-violence-is-to-condone-it.html (Apr. 13, 2007, 14:02 EST) (explaining that she assumes male pseudonyms to comment on male-dominated blogs). This is akin to racial passing on the internet, where African Americans transform themselves into whites by assuming certain names to reduce the chance that they will be identified as black.
137. See Jerry Kang, Cyber-Race, 113 HARV. L. REV. 1130, 1179-80 (2000).
138. See Yoshino, Covering, supra note 112, at 780 (discussing the phenomenon of covering). Women also face reverse-covering demands, i.e., to be more like stereotypical women than stereotypical men. In that sense, women oftentimes find themselves in a predicament at work because they are pressured to be "masculine" enough to obtain their coworkers' respect and "feminine" enough to be respected as women.
139. Id.
140. See Winter & Huff, supra note 113, at 50 (noting that women often feel they either have to adopt an aggressive, "masculine" communication style or forgo posting on the internet altogether).
141. E-mail from Christa Laser to Danielle Citron, Professor of Law, University of Maryland (Mar. 13, 2009, 10:12 EST) (on file with author).
142. See, e.g., Melissa Dribben, Penn Shoutouts Is Due, PHILA. INQUIRER, Apr. 19, 2009, at Bl (describing the University of Pennsylvania student newspaper's semesterly publication of "shoutouts," which the editors describe as "reader-submitted expressions of love/vitriol/both ... and the meaner, the better[,]" that often include sexualized comments about women by women) (alteration in original) (internal quotation marks omitted). College-aged women have seemingly embraced misogyny. In the long term, this development is sure to have corrosive effects as women glorify their own sexual objectification and degradation.
143. Kenji Yoshino, Assimilationist Bias in Equal Protection: The Visibility Presumption and the Case of "Don't Ask, Don't Tell", 108 YALE L.J. 485, 527 (1998).
144. MARTHA C. NUSSBAUM, HIDING FROM HUMANITY: DISGUST, SHAME, AND THE LAW 293 (2004).
145. Deirdre Davis, The Harm That Has No Name: Street Harassment, Embodiment, and African American Women, 4 UCLA WOMEN'S L.J. 133, 176 (1994) (internal quotation marks omitted).
146. Yoshino, supra note 118, at 528.
147. E-mail from Christa Laser to Danielle Citron, Professor of Law, University of Maryland, supra note 116.
148. See, e.g., FRED STREBEIGH, EQUAL: WOMEN RESHAPE AMERICAN LAW 160 (2009) (describing a female attorney who was forced to sign briefs with only her first initial and prohibited from appearing in court).
149. Wikipedia, Pen name, http://en.wikipedia.org/wiki/Pen-name Gast visited Sept. 9, 2009).
150. YOSHINO, COVERING, supra note 112, at 154-162
151. As Leslie Meltzer elegantly develops in her article Spheres of Dignity: Conceptions and Functions in Constitutional Law (on file with author), the term dignity implicates a variety of values, including dignity as equality. I aim to use the term dignity here to refer to the value harmed by conduct that demeans, devalues, and denigrates women due to their gender.
152. Nussbaum, supra note 91, at 5-6; see also WEST, supra note 15, at 146 (explaining that sexual harassment objectifies women, inflicting a dignitary injury).
153. First Amended Complaint at ¶25, Doe v. Ciolli, No. 307CV00909 CFD (D. Conn. Nov. 8, 2007) (internal quotation marks omitted).
154. Id. at S¶ 18 (internal quotation marks omitted).
155. Id. at ¶21 (internal quotation marks omitted).
156. Nussbaum, supra note 91, at 3-4.
157. Id. at 8 (internal quotation marks omitted).
158. Kennedy, supra note 99, at 717.
159. Id. at 715 (internal quotation marks omitted).
160. Nussbaum, supra note 91, at 19.
161. Abrams, Transformation, supra note 103, at 1208.
162. See generally DEBORAH HELLMAN, WHEN IS DISCRIMINATION WRONG? (2008) (exploring when and why discrimination is morally wrong).
163. Kathryn Abrams, Title VII and the Complex Female Subject, 92 MICH. L. REV. 2479, 2529-2530 (1994).
164. E.g., Abrams, New Jurisprudence, supra note 109, at 1207-1208
165. E.g., BOCIJ, supra note 14, at 17;
166. Catherine Holahan, The Dark Side of Web Anonymity, Bus. WK., May 12, 2008, at 64, available at http://www.businessweek.com/magazine/content/08-19/ b4083064456431.htm (detailing how strange men showed up at young woman's home in response to sexual comments made about her online);
167. Comment of L to Posting of Trench Reynolds to MyCrimeSpace, Syracuse stalker at large, http://www.mycrimespace.com/2008/02/19/syracuse-stalker-at- large/ (Feb. 20, 2008, 22:50 EST) (recounting how she received threatening calls after an ex-boyfriend impersonated her in chat rooms saying that she wanted to be raped and provided her address and phone number).
168. See Barak, supra note 1, at 82;
169. Jodi K. Biber et al., Sexual Harassment in Online Communications: Effects of Gender and Discourse Medium, 5 CYBERPSYCHOL. & BEHAV. 33, 38 (2002).
170. THE SOCIAL NET: UNDERSTANDING HUMAN BEHAVIOR IN CYBERSPACE 248 (Yair Amichai-Hamburger ed., 2005);
171. cf. Biber et al., supra note 140, at 36-38 (explaining that women often experience online sexually explicit pictures, jokes, and requests for company as harassment, while men are less likely to have this response).
172. Ágnes Gáti et al., Anorexia Nervosa Following Sexual Harassment on the Internet: A Case Report, 31 INT'L J. EATING DISORDERS 474 (2002).
173. Barak, supra note 1, at 84-85.
174. Lee, supra note 7.
175. Sandy Welsh, Gender and Sexual Harassment, 25 ANN. REV. SOC. 169, 183 (1999).
176. The work of Katherine Franke and Vicki Schultz highlight the gender-based messages that hostile-work-environment harassment sends. See Katharine M. Franke, What's Wrong With Sexual Harassment?, 49 STAN. L. REV. 691, 693, 762 (1997) (highlighting how male workers use sexuality as a "technology of sexism" to reinforce gender stereotypes, such as the male sexual conquerors and the female sexually conquered);
177. Schultz, supra note 108, at 1766-1767, 1766 n.441 (explaining how hostile-work-environment harassment uses sexuality to demonstrate women's lack of competence and men's sexuality to illustrate required work competence).
178. Abrams, New Jurisprudence, supra note 109, at 1211. As Kathryn Abrams explains, sexual harassment "helps perpetuate the workplace as a site of male control, where gender hierarchy is the order of the day and masculine norms structure the working environment."
179. Id. at 1219.
180. See id. at 1206.
181. See MARTHA CHAMALLAS, INTRODUCTION TO FEMINIST LEGAL THEORY 57-58 (2d ed. 2003). As Robin West explains, women often value intimacy, fearing the injury produced by separation, whereas men tend to emphasize individuals' autonomy from others.
182. See Robin West, Jurisprudence and Gender, 55 U. CHI. L. REV. 1, 65 (1988). This notion that women have a different voice than men has its critics. Id. at 60. For instance, Catharine MacKinnon understands the different-voice theory as highlighting the voice of victims who have never had the freedom to develop their own perspectives while living under conditions of gender subordination.
183. Ellen C. DuBois et al., Feminist Discourse, Moral Values, and the Law-A Conversation, 34 BUFF. L. REV. 11, 27 (1985) (remarks of Catharine A. MacKinnon). This Essay does not aim to resolve this disagreement but instead seeks to highlight the various ways in which the retreat of women from online discourse affects society.
184. Posting of Danielle Citron to Concurring Opinions, Science and Technology Workplace, A Predominantly Male Face, http://www.concurringopinions.com/ archives/2008/12/science-and-tec-1.html (Dec. 16, 2008,18:07 EST).
185. Sylvia Ann Hewlett et al., Stopping the Exodus of Women in Science, HARV. BUS. REV., June 2008, at 1;
186. Steven Swinford, Sexist culture drives women out of science, SUNDAY TIMES (LONDON), May 11, 2008, at 6, available at http://www.timesonline.co.uk/tol/ news/uk/science/article3908362.ece.
187. See Posting of Danielle Citron to Concurring Opinions, supra note 150 (analogizing "the culture of misogyny that pervades many social networking sites, blogs, and other Web 2.0 platforms" with sexual harassment encountered by women working in science and technology) (internal quotation marks omitted).
188. See WEST, rapra note 15, at 96.
189. See id. at 138.
190. Id. at 140.
191. Id. Although states historically did not protect married women against rape by their husbands, all states now include sexual assault within marriage under the definition of rape, even though different laws and penalties sometimes apply to marital rape. LAPIDUS et al., supra note 92, at 180-81. However, some states define rape within marriage at a lower level of criminality than nonmarital rapes or criminalize only certain kinds of marital rape, such as when the parties have formally separated.
192. Id. at 181.
193. WEST, supra note 15, at 140 (emphasis omitted).
194. MARTHA C. NUSSBAUM, SEX & SOCIAL JUSTICE 138 (1999).
195. LAPIDUS et al., supra note 92, at 182. States have largely abandoned the "utmost resistance" requirement due to the injustice of refusing to acknowledge a rape unless a woman risked her life trying to resist.
196. Id at 180-181
197. Id. at 180.
198. NUSSBAUM, supra note 158, at 139.
199. Id.
200. Id.
201. Martha Chamallas & Linda K. Kerber, Women, Mothers, and the Law of Fright: A History, 88 MICH. L. REV. 814, 816 (1990).
202. Id. at 818.
203. Id.
204. To be sure, modern society has minimized or ignored other gendered harms, such as street harassment. WEST, supra note 15, at 145. This Essay focuses on domestic violence and sexual harassment in the workplace as prominent examples of the historic nonrecognition or trivialization of harms suffered by women.
205. MARTHA J. LANGELAN, BACK OFF: HOW TO CONFRONT AND STOP SEXUAL HARASSMENT AND HARASSERS 39 (1993);
206. Deborah L. Rhode, Sexual Harassment, 65 S. CAL. L. REV. 1459, 1461 (1992).
207. MACKINNON, supra note 17, at 2.
208. Id. at 90 (internal quotation marks omitted).
209. See Clare Dalton, Domestic Violence, Domestic Torts and Divorce: Constraints and Possibilities, 31 NEW ENG. L. REV. 319, 336-38 (1997);
210. cf. Martha R. Mahoney, EXIT: Power and the Idea of Leaving in Love, Work, and the Confirmation Hearings, 65 S. CAL. L. REV. 1283 (1992) (discussing how the same trivializing argument was applied to sexual harassment in the workplace).
211. CATHARINE A. MACKINNON, WOMEN'S LIVES, MEN'S LAWS 291 (2005).
212. STREBEIGH, supra note 123, at 386.
213. NUSSBAUM, supra note 158, at 144.
214. MACKINNON, supra note 172.
215. Id. at 185.
216. State v. Rhodes, 61 N.C. 453, 457 (1868);
217. see also CATHARINE A. MACKINNON, TOWARD A FEMINIST THEORY OF THE STATE (1989).
218. Reva B. Siegel, "The Rule of Love": Wife Beating as Prerogative and Privacy, 105 YALE L.J. 2117, 2166 (1996)
219. (quoting Drake v. Drake, 177 N.W. 624, 625 (Minn. 1920)).
220. Elizabeth M. Schneider, Battered Women, Feminist Lawmaking, Privacy, and Equality, in WOMEN AND THE UNITED STATES CONSTITUTION: HISTORY, INTERPRETATION, AND PRACTICE 197, 201 (Sibyl A. Schwarzenbach & Patricia Smith eds., 2003).
221. Elizabeth M. Schneider, The Violence of Privacy, 23 CONN. L. REV. 973, 982 (1991) (internal quotation marks omitted).
222. NUSSBAUM, supra note 158, at 142. As Judge Huttner's comment above makes clear, legal change in the 1970s did not change society's (and judges') views about domestic violence right away. STREBEIGH, supra note 123, at 386.
223. Elizabeth M. Schneider, Battered Women and Feminist Lawmaking, 23 WOMEN'S RTS. L. REP. 243, 243 (2002).
224. Schneider, supra note 179, at 199.
225. Catharine A. MacKinnon, The Logic of Experience: Reflections on the Development of Sexual Harassment Law, 90 GEO. L.J. 813, 826 (2002).
226. Id. at 823.
227. Extensive empirical work on the trivialization of cyber gender harassment does not yet exist. However, a recent study addresses college students' reaction to cyber-harassment incidents. It suggests that college students do not take hypothetical or real-life cases of cyber harassment seriously.
228. Eileen M. Alexy et al., Perceptions of Cyberstalking Among College Students, 5 BRIEF TREATMENT & CRISIS INTERVENTION 279 (2005). Anecdotal evidence also proves instructive here. In the aftermath of the attacks on Kathy Sierra (which received national attention after the Washington Post covered the story), online commentary overwhelmingly suggested that Ms. Sierra overreacted to the rape threats, privacy invasions, and doctored photographs. This pattern has seemingly recurred in numerous incidents as commentators learn about online attacks against women. To be sure, not everyone responds in this way-the groups supporting Ms. Sierra and women like her demonstrate the point. Nonetheless, the trivialization of cyber gender harassment is an important part of the discourse after attacks on women online are publicized. As Section II.C shows, the trivialization of women's harm in the face of cyber gender harassment is not reserved for commentators. Significantly, law-enforcement officers often fail to pursue complaints of cyber gender harassment because they fail to take it seriously. I thank Neil Richards for urging me to address this important point.
229. Posting of Ryan Singel to Threat Level on WIRED.COM, 'Anonymous' Member Unmasked, Charged With Web Attack on Scientology, http://blog.wired.com/ 27bstroke6/2008/10/anonymous-membe.html (Oct. 17, 2008, 16:17 EST).
230. On Point with Tom Ashbrook: Cyber Harassment and the Law, (NPR radio broadcast Mar. 3, 2009), available at http://www.onpointradio.org/shows/2009/03/ cyber-harassment/ (comments of David Margolick).
231. Id. (comments of Marc Randazza).
232. Id.
233. Posting of RageBoy to EGR Weblog, re Kathy Sierra's allegations, http://www.rageboy.com/2007/03/re-kathy-sierras-allegations.html (Mar. 27, 2007, 03:16 EST).
234. Posting of Rev. Billy Bob Gisher to Less People Less Idiots, supra note 11.
235. Jennifer, Letter to the Editor, Blah blah blah, SALON, Mar. 28, 2007, http://letters.salon.com/mwt/broadsheet/2007/03/28/kathy-sierra/permalink/ 290fl050a4be8aa781a4c67b8b675052.html.
236. Posting of Markos Moulitsas to Daily Kos, supra note 12.
237. Comment of BC to Mike Cassidy's Loose Ends, Kathy Sierra Blog Battle Provides a Chance for Change, http://blogs.mercurynews.com/cassidy/2007/04/02/ kathy-sierra-blog-battle-provides-a-chance-for-change/#comment-3831 (Apr. 3, 2007, 15:26 EST).
238. Althouse, "For many people the Internet has become a scarlet letter, an albatross", http://althouse.blogspot.com/2007/03/for-many-people- internet-has-become.html (Mar. 7, 2007, 09:37 EST).
239. Michael Sullivan, Letter to the Editor, I call bullshit, SALON, Mar. 30, 2007, http://letters.salon.com/opinion/feature/2007/03/31/sierra/permalink/ la7c43d50408afdb68662df76f7a088b.html.
240. See Frank Pasquale, Rankings, Reductionism, and Responsibility, 54 CLEV. ST. L. REV. 115, 122 (2006) (questioning whether individuals should have recourse when a Google search of their name ranks highly a certain type of website, for example a site that "permits disgruntled exwives and ex-girlfriends to post in great detail the shortcomings of their former husbands or boyfriends").
241. E.g., Doug Simpson, Feds find dangerous cyberstalking hard to prevent, CNN.com, http://archives.cnn.eom/2000/TECH/computing/06//12/cyberstalkers.idg/ index.html (last visited Sept. 9, 2009).
242. Danielle Keats Citron, Reservoirs of Danger: The Evolution of Public and Private Law at the Dawn of the Information Age, 80 S. CAL. L. REV. 241, 252 (2007).
243. Sullivan, supra note 197.
244. Posting of Markos Moulitsas to Daily Kos, supra note 12.
245. Comment of FIAR to Posting of Tim O'Reilly to O'Reilly Radar, Code of Conduct: Lessons Learned So Far, http://radar.oreilly.com/archives/2007/04/code- of-conduct.html#comment-2032297 (Apr. 11, 2007, 15:13 EST).
246. On Point with Tom Ashbrook, supra note 188 (comments of Marc Randazza).
247. REP. ON CYBERSTALKING, supra note 1 (internal quotation marks omitted).
248. Patricia Sanchez Abril explains that online social-networking sites generally refuse to take down material that is purportedly defamatory or embarrassing. Patricia Sanchez Abril, A (My)Space of One's Own: On Privacy and Online Social Networks, 6 Nw. J. TECH. & INTELL. PROP. 73, 82 (2007). On the main, it is difficult to gauge how often website operators remove harassing postings. Anecdotal evidence provides some insight into its occurrence. The AutoAdmit website operators never removed the postings concerning Ms. Filipovic despite repeated requests to do so. The harassing postings of the group Anonymous remain online even though the targeted women complained about them. Website operator Chris Locke initially refused to remove the doctored
249. See re Kathy Sierra's allegations, http://www.rageboy.com/2007/03/re- kathy-sierra-allgations.html Gast visited Feb. 20, 2008).
250. Penelope Trunk's Brazen Careerist, Blog under your real name, and ignore the harassment, http://blog.penelopetrunk.com/2007/07/19/blog-under-your-real- name-and-ignore-the-harassment/ (July 19, 2007) (explaining that women who write under pseudonyms miss opportunities associated with blogging under their real names, such as networking opportunities and expertise associated with the author's name).
251. I invoke Balkin's "captive audience" theory as a way of thinking about cyber gender harassment, not as a direct analogy and fit.
252. J.M. Balkin, Free Speech and Hostile Environments, 99 COLUM. L. REV. 2295, 2312 (1999).
253. Id.
254. It is worth noting that women in the workplace usually know the identity of their harasses and thus might be able to escape the harassment by physically avoiding their attackers. Women, however, cannot do the same on their own blogs and sites without using passwords and thus limiting the commercial reach and value of their sites.
255. See Rich McHugh & Noel Hartman, Model Liskula Cohen Wins Court Battle with Google to Learn Blogger's Identity, Aug. 19, 2009, available at http://abcnews.go.com/GMA/Story?id=8359356&page=1 Gast visited Sept. 29, 2009).
256. Cf. Comment of Marc J. Randazza to Posting of Michael Froomkin to Concurring Opinions, http://www.concurringopinions.com/archives/2009/04/ccr- symposium-t-1.html (Apr. 16, 2009, 15:45 EST) ("[W]hen you don't like someone's level of civility [in an online forum], of course you should exercise your own First Amendment rights to call them on it.").
257. As Kaimi Wegner notes, behavioral economics teaches us that "people tend to base their assessment of questions on anchors-that is, suggestions that the answer might be X or Y" Posting of Kaimipono D. Wegner, CCR Symposium: A Behavioral Argument for Stronger Protections, Concurring Opinions Blog, http://www.concurringopinions.com/archives/2009/04/ccr-symposium-a-1.html (Apr. 14, 2009 ,18:04 EST). This is so even if people know that the anchors-such as lies about a woman's sexual diseases and the like-are lies.
258. Id.
259. J.M. Balkin, Some Realism About Pluralism: Legal Realist Approaches to the First Amendment, 1990 DUKE L.J. 375, 420-421
260. See id.
261. Of course, shaming by other members of an online community would play an important role in setting a site's social norms, but that is a different question than whether a targeted individual's efforts would be worth the potential cost.
262. Posting of David Fagundes to Concurring Opinions, CCR Symposium: In Defense of Self-Defense, http://www.concurringopinions.com/archives/2009/04/ccr- symposium-i.html (Apr. 16,2009, 01:16 EST).
263. Id.
264. Telephone Interview with Jill Filipovic, supra note 58.
265. Valenti, supra note 35;
266. see also Posting of Chris Bowers to MyDD Direct Democracy, Women and Blogging, http://www.mydd.eom/story/2005/3/18/125346/895 (Mar. 18, 2005, 12:53 EST).
267. Comment of Robert Scoble to Scobleizer, Taking the Week Off, http://scobleizer.com/2007/03/26/taking-the-week-off/#comment-9674392 (Mar. 26, 2007, 15:50 EST);
268. Comment of Robert Scoble to Scobleizer, Taking the Week Off, (Mar. 26, 2007, 16:34 EST) ("It's a culture that allows and, even, sort of encourages sexual attacks on women. Look at Justin.tv's chat room. The comments there are rife with sexual overtones. If it's not attacks on women it's that someone is 'gay.' "). In this regard, online harassment of women and gays and lesbians has much in common.
269. Mary Brandel, Online Harassment: Five Tips to Defeat Blog Trolls and Cyberstalkers, CIO.COM, Apr. 27, 2007, http://www.cio.com/article/106500/Online- Harassment-Five-Tips-to-Defeat-Blog-Trolls-and-Cyberstalkers (internal quotation marks omitted).
270. Comment of Fistandantalus to Posting of Rev. Billy Bob Gisher to Less People, Less Idiots, supra note 13.
271. John Hampshire, Letter to the Editor, Hello? It's the blogosphere stupid, SALON, Mar. 30, 2007, http://letters.salon.com/opinion/feature/2007/03/31/ sierra/permalink/0843e0885780eda9090ebe1f6656c80e.ht ml.
272. E-mail from Brian Leiter to Danielle Citron, Professor of Law, University of Maryland (Apr. 7, 2009) (on file with author).
273. See Citron, supra note 2, at 86-95.
274. REP. ON CYBERSTALKING, supra note 1 (explaining that victims often refuse to report cyber harassment due to their sense that the conduct had not reached a criminal offense or that law enforcement would not take it seriously).
275. See, e.g., Bocu, supra note 14.
276. Christa Miller, Cyber Stalking & Bullying-What Law Enforcement Needs to Know 1-2, OFFICERCOM, Apr. 2006, http://www.ncdsv.org/images/ CyberStalkingBullying-WhatLENeedstoKnow.pdf ("[M]any police departments remain unable to investigate and solve [cyber stalking and bullying] cases. However, the good news is equipment and technology aren't always the answer. Training, education and a willingness to collaborate are.");
277. see also Eric Kurhi, Police lack standards for cyber criminals, CONTRA COSTA TIMES (Walnut Creek, Cal.), Feb 19,2007, at F4, available at 2007 WL 3258758 (explaining that some jurisdictions have trouble telling that an internet-based crime occurred, such as when police in Danville, California told the family of a teenage girl who had her information posted online with a sexual solicitation that it was a civil matter, when in fact charges could have been filed for cyber harassment).
278. REP. ON CYBERSTALKING, supra note 1. The report did, however, suggest two notable exceptions-the New York Police Department's Computer Investigation and Technology Unit and the Los Angeles District Attorney's Stalking and Threat Assessment Team; these agencies pursued a significant number of cyber-harassment cases.
279. Id.
280. Devennie Wauneka, The Dangers of Cyberstalking: Educating Law Enforcement & Communities, OFF. FOR VICTIMS OF CRIME TRAINING & TECHNICAL ASSISTANCE NEWSL., Mar.-Apr. 2009, at 9, 9, available at http://www.unified- solutions.org/uploads/marchapril-2009.pdf.
281. Id.
282. See Miller, supra note 230;
283. see also Erin Alberty, Blogger sues, says he's been cyberstalked-and cops won't help, SALT LAKE TRIB., June 6, 2008, available at LexisNexis (prosecutor's office refused to investigate case involving anonymous online threats on blog where police noted that typically threats on the internet are "idle threats" whereas "[i]t's a lot easier" to tell if it is a "terroristic threat when it's face-to-face, or even a threat from somebody nearby");
284. Janese Heavin, Web Poses a Cyber-Bully Threat, COLUMBIA DAILY TRIB. (MO.), Oct. 22, 2006, available at
285. Brooke A. Masters, When E-mail Is a Weapon, Victims Struggle for Protection, WASH. POST, NOV. 11, 1998, at B1 (noting that victims of online harassment have a hard time getting help from law enforcement "unless you can show them off-line harassment") (internal quotation marks omitted).
286. See Wauneka, supra note 232, at 9.
287. Bocu, supra note 14, at 16-17.
288. Id. at 17.
289. Comment of Mary Sisson to Chatalian, supra note 75.
290. Miller, supra note 230, at 1, 5-6.
291. Bocu, supra note 14, at 175. Paul Bocij explains that courts often treat offline stalking leniently as well.
292. See id. A 2003 study found that stalking cases typically resulted in dismissal, and to the extent that they are prosecuted, many charges were reduced to lesser offenses, most often in the misdemeanor level of stalking or another threat-related crime. Id. The study found that the charges filed resulted in convictions in 28.5 percent of cases.
293. Id.
294. See id. The phenomenon of stalkers and cyberstalkers receiving light sentences is not confined to the United States.
295. Id. at 176. Paul Bocij reports that courts in the United Kingdom, Canada, and Australia give light sentences to convicted stalkers, usually in the form of probation.
296. Id.
297. Id. at 89.
298. Id. at 90.
299. Id. The Violence Against Women Act punishes, individuals who anonymously use the internet with the intent to "annoy, abuse, threaten, or harass" with up to two years in jail. 47 U.S.C. §223(a)(1)(C) (2006). The first prosecution under this provision involved a man who sent threatening e-mails to his ex-girlfriend and sent pornography to her colleagues under her name.
300. See Samantha Nelson, Annoying Online Posts Could Be Illegal, ABC NEWS, Jan. 13, 2006, http://abcnews.go.com/Technology/PCWorld/story?id-1503454. After pleading guilty to two counts of harassment, the defendant received 500 hours of community service and five years of probation.
301. Id. The absence of incarceration in the defendant's sentence could be seen as an example of trivialization.
302. See, e.g., CAL. PENAL CODE §653m(b) (West 2009);
303. Tara Bahrampour, Student, 13, Charged in Washington-Lee Scare, WASH. POST, May 27, 2005, at B4 (explaining that cyber harassment statute permitted up to two years in jail).
304. Citron, supra note 2.
305. See, e.g., Kiesau v. Bantz, 686 N.W2d 164, 169-70, 176 (Iowa 2004) (upholding a finding of libel per se where defendant altered a photograph of female police officer to make it appear that she intentionally exposed her breasts, and sent the picture to plaintiff's colleagues);
306. Rombom v. Weberman, No. 1378/00, 2002 WL 1461890, at *2-4 (N.Y Sup. Ct. June 13, 2002) (upholding defamation award in case where defendant's online postings asserted that plaintiff had been a patient in a mental institution).
307. See RESTATEMENT (SECOND) OF TORTS §46 (1965).
308. See RESTATEMENT (SECOND) OF TORTS §652D (1977).
309. See generally DANIEL J. SOLOVE, UNDERSTANDING PRIVACY 104-105 (2008) (proposing a taxonomy of types of privacy intrusions).
310. Federal law prohibits the transmission of communications that contain threats to injure another person "in interstate or foreign commerce." 18 U.S.C. §875(c) (2006).
311. 47 U.S.C. §223(a)(1)(C) (2006). The Violence Against Women Act amended §223 to include internet communications within the covered methods of communication. See Violence Against Women Act §113(a)(3), 47 U.S.C. §223(h)(1)(C) (2006).
312. See, e.g., CAL. PENAL CODE §653m(b) (West 2009).
313. OHIO REV. CODE ANN. §2903.211 (A)(2) (LexisNexis 2009).
314. 42 U.S.C. §2000e-6 (2006).
315. See, e.g., United States v. Original Knights of the Ku Klux Klan, 250 F. Supp. 330, 349 (E.D. La. 1965).
316. E.g., Posting of Michael Froomkin to Concurring Opinions, CCR Symposium: The Right to Remain Anonymous Matters, http://www.concurringopinions.com/ archives/2009/04/ccr-symposium-t-1.html (Apr. 14, 2009,19:48 EST).
317. Citron, supra note 2, at 106-114
318. U.S. CONST, amend. I.
319. E.g., Milkovich v. Lorain Journal Co., 497 U.S. 1, 18-20 (1990).
320. Virginia v. Black, 538 U.S. 343, 359 (2003). Although defendants make threats by speaking, that fact does not provide them with a defense to criminal prosecution or civil suits. Threats of violence made via new technologies are not immunized from penalty on free-speech grounds. To be sure, this issue becomes more complicated with crimes, such as threats, that are interwoven with arguably expressive activity. Is the burning of a cross on the lawn of an African American family best characterized as a threat? Or is it an expression of a view about race that, though noxious, is protected by the First Amendment?
321. In Virginia v. Black, the Court answered these questions, finding that a state may ban cross burning if the defendant carried it out with the intent to intimidate. Id at 359. As the Court explained, the First Amendment does not protect "true threats" that communicate a serious intention to commit violence against particular individuals.
322. Id. The Court distinguished cross burnings done with the intent to intimidate, which it deemed a proscribable "true threat," from cross burning for other purposes, which it held constituted a protected expression of viewpoint.
323. Id Online postings thus constitute "true threats" if they convey a serious intention to inflict bodily harm on the targeted individual, even if they combine the threatening language with protected offensive views. The anonymous posters arguably conveyed a serious intention to inflict bodily harm on Kathy Sierra with their rape threats, doctored photographs, and revelation of her home address. These threats, and others like them, are afforded no protection under First Amendment law.
324. 508 U.S. 476, 480 (1993).
325. Mitchell, 508 U.S. at 487-488
326. Id. at 487.
327. THOMAS I. EMERSON, THE SYSTEM OF FREEDOM OF EXPRESSION 6-7 (1970).
328. Robert Post, Reconciling Theory and Doctrine in First Amendment Jurisprudence, 88 CAL. L. REV. 2353, 2363 (2000).
329. Deborah Hellman, The Expressive Dimension of Equal Protection, 85 MINN. L. REV. 1, 3 n.10 (2000).
330. Elizabeth S. Anderson & Richard M. Pildes, Expressive Theories of Law: A General Restatement, 148 U. PA. L. REV. 1503, 1571 (2000).
331. Richard H. McAdams & Janice Nadler, Coordinating in the Shadow of the Law: Two Contextualized Tests of the Focal Point Theory of Legal Compliance 42 LAW & SOC'Y REV. 865, 867 (2008).
332. Richard H. Pildes, Why Rights Are Not Trumps: Social Meanings, Expressive Harms, and Constitutionalism, 27 J. LEGAL STUD. 725, 755 (1998);
333. Cass R. Sunstein, On the Expressive Function of Law, 144 U. PA. L. REV. 2021, 2022 (1996). In the expressivist literature, some scholars have focused on the ways that government and individuals can act wrongfully because of what they express, rather than simply for what they do.
334. See, e.g., Hellman, supra note 266, at 2 (exploring the expressive dimension of law in equality jurisprudence and articulating an expressivist theory of equal protection, namely that "state action violates Equal Protection if its meaning conflicts with the government's obligation to treat each person with equal concern"). Other scholars focus on the ways law creates and sustains norms of behavior.
335. See, e.g., Lawrence Lessig, The Regulation of Social Meaning, 62 U. CHI. L. REV. 943 (1995). Although law also has intrinsic importance in allowing the public to evaluate society's commitments, Sunstein, supra, this Article focuses on its norm-shaping potential in much the same way that Larry Lessig has done in his important work, see Lessig, supra, at 1010.
336. WEST, supra note 15, at 151.
337. Sunstein, supra note 269, at 2032.
338. Dan M. Kahan, The Secret Ambition of Deterrence, 113 HARV. L. REV. 413, 419 (1999).
339. Lessig, supra note 269, at 1010.
340. MacKinnon, supra note 184, at 818.
341. Beginning with Williams v. Saxbe, 413 F. Supp. 654 (D.D.C. 1976),
342. and Barnes v. Costle, 561 F.2d 983 (D.C. Cir. 1977),
343. and culminating in Bundy v. Jackson, 641 F.2d 934 (D.C. Cir. 1981),
344. and Vinson v. Taylor, 753 F.2d 141 (D.C. Cir. 1985), the D.C. Circuit was the first to recognize sexual harassment as a compensable harm and shaped the rules of accountability for it.
345. MacKinnon, supra note 184, at 813. Professor MacKinnon's account is particularly instructive as she pioneered the very concept of sexual harassment in the workplace and participated in the litigation of the ground-breaking D.C. Circuit cases.
346. See STREBEIGH, supra note 123, at 241-305 (discussing MacKinnon's crucial role in defining and shaping courts' view of sexual harassment).
347. See generally MACKINNON, supra note 17.
348. MacKinnon, supra note 184, at 818.
349. Id. 278. Id. 278. Id.
350. Id. (internal quotation marks omitted).
351. Id.
352. Id.
353. Id.
354. MACKINNON, supra note 172, at 199.
355. Id.
356. MacKinnon, supra note 184, at 830.
357. See id. at 825.
358. Id. at 831; EEOC, HARRASMENT CHARGES: EEOC & FEPAs COMBINED: FY 1992-1996, http://www.eeoc.gov/stats/harassment-a.html,
359. EEOC, HARRASMENT CHARGES: EEOC & FEPAs COMBINED: FY 1997-2008 (2009), http://www.eeoc.gov/stats/harassment.html;
360. see also Paul Igasaki Sexual Harassment: A Sea Change in the Workplace, http://www.imdiversity.com/Villages/Careers/articles/igasaki-sexual-harassment. asp.
361. ELIZABETH M. SCHNEIDER, BATTERED WOMEN AND FEMINIST LAWMAKING 42-44 (2000).
362. Id.
363. Id.;
364. see also KIRSTEN S. RAMBO, "TRIVIAL COMPLAINTS" 115-16 (2009) (noting array of civil suits against police and prosecutors in fourteen states).
365. See, e.g., Bruno v. Codd, 393 N.E.2d 976, 980 (N.Y 1979).
366. LAPIDUS et al., supra note 92, at 158-162
367. RAMBO, supra note 290, at 115-16 (explaining that lawsuits like Bruno changed societal attitudes toward domestic violence); Schneider, supra note 180, at 982. Elizabeth Schneider explains that the last twenty-five years have witnessed considerable change in the public's familiarity with domestic violence.
368. Id.
369. Compare Deborah J. Bostock & James G. Daley, Lifetime and Current Sexual Assault and Harassment Victimization Rates of Active-Duty United States Air Force Women, 13 VIOLENCE AGAINST WOMEN 927, 928-29 (2007) (noting that the overall rate of sexual harassment in the U.S. military declined from 1988 to 2002),
370. with Kaushik Basu, The Economics and Law of Sexual Harassment in the Workplace, 17 J. ECON. PERSPECTIVES 141,143-44 (2003) (noting studies concerning the percentage of female federal employees who reported experiencing workplace sexual harassment were relatively constant-reporting results of just over 40 percent-from 1980 to 1994).
371. STREBEIGH, supra note 123, at 384.
372. Id. at 386.
373. See Comment of Nollind Whachell to HorsePigCow, The Unsinkable Kathy Sierra, http://www.horsepigcow.com/2007/03/27/the-unsinkable-kathy-sierra/ (Mar. 27, 2007, 11:27 EST). Social-networking sites with established communities demonstrate this concern. For instance, AutoAdmit remains a cesspool of misogynistic comments despite the media's attention to the attacks on female law students.
374. See, e.g., AutoAdmit Message Thread, Are Cindy McCain's tits really this big?, http://www.xoxohth.com/thread.php?thread-id=879129&mc-8&forum-id-2 (last visited Sept. 1, 2008);
375. AutoAdmit Message Thread, THE hottest skinny chick with big tits PICTURE EVER!, http://www.autoadmit.com/thread.php?forum-id=2&thread-id- 943762&PHPSESSID=ada8e21571d0fce93527016650f7087d Gast visited Sept. 1, 2009);
376. see also Posting of James Grimmelmann to Concurring Opinions, CCR Symposium: The LuIz Mob, http://www. concurringopinions.com/archives/2009/04/ ccr-symposium-t-3.html (Apr. 15, 2009, 13:18 EST) (explaining that the website Encyclopedia Dramatica-where Anonymous posts its activities-is devoted to "lulz, the pleasure of watching someone lose their mind at their computer 2,000 miles away .... [j]ust as the element of surprise transforms the physical act of love into something beautiful," where "something beautiful" in that passage is a hyperlink to the entry for rape) (internal quotation marks omitted); Encyclopedia Dramatica, Cheryl Lindsey Seelhoff, supra note 80 (detailing women's-issues websites that the group Anonymous has driven offline).
377. Antidiscrimination laws convey a cultural meaning of equality among citizens. Charles R. Lawrence III, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 STAN. L. REV. 317, 355 (1987).
378. NUSSBAUM, supra note 158, at 20.
379. See Margaret Jane Radin, Compensation and Commensurability, 43 DUKE L.J. 56, 60-61 (1993) ("Redress instead means showing the victim that her rights are taken seriously.").
380. See, e.g., Men's Network Against Domestic Violence, http://www. menagainstdv.org Gast visited Sept. 1, 2009);
381. National Coalition Against Domestic Violence, http://www.ncadv.org Gast visited Sept. 1, 2009);
382. Sexual Harassment Support, http://www.sexualharassmentsupport.org/ SHworkplace.html Gast visited Sept. 1, 2009).
383. See Working to Halt Online Abuse, http://www.haltabuse.org Gast visited Sept. 1, 2009).
384. E.g., Posting of Lisa Stone to BlogHer, supra note 35; Posting of Vanessa to Feministing, Listen Up: Bloggers Discuss Online Harassment, http://www.feministing.com/archives/013176.html(Jan. 16, 2009 17:09 EST).
385. David Louie, Cyber Threats Against Weil-Known Blogger, ABC7NEWS.COM;, Mar. 29, 2007, http://abclocal.go.com/kgo/story?section-news/business&id- 5165663.
386. Brad Stone, A Call for Manners in the World of Nasty Blogs, N.Y TIMES, Apr. 9, 2007, at Al.
387. Id.
388. Site operators can, and do, overlook cyber abuse of women as they enjoy immunity for the postings of others. Citron, supra note 2, at 114-121
389. See J.M. BALKIN, CULTURAL SOFTWARE: A THEORY OF IDEOLOGY 14 (1998).
390. IMMANUEL KANT, THE CRITIQUE OF PRACTICAL REASON 127 (Thomas Kingsmill Abbott trans., Kessinger Publishing 2004) (1788);
391. see also NUSSBAUM, supra note 91, at 79-80.
392. Isaac Arnsdorf, Lawyers to name defendants in AutoAdmit case, YALE DAILY NEWS, July 31, 2008, available at http://www.yaledailynews.com/articles/view/ 24842
393. The media has begun to discuss the significance of a cyber civil rights agenda with regard to online harassment. See, e.g., Jean Marbella, Time to rein in harassment on the Internet, BALT. SUN, Feb. 22, 2009, available at www.baltimoresun.com/news/local/bal-md.marbella22feb22,0,7486119.column;
394. David Margolick, Slimed ONLINE, CONDÉ NAST PORTFOLIO, Feb. 11, 2009, http://www.portfolio.com/news-markets/national-news/portfolio/2009/02/11/ Two-Lawyers-Fight-Cyber-Bullying/;
395. Checking Your Internet Image (FOX Wash., D.C. television broadcast July 17, 2008), available at http://www.myfoxdc.com/dpp/news/
396. Checking-Your-Internet-Image (discussing Cyber Civil Rights article); The Marc Steiner Show: Cyber Sexual Harassment (WEAA Bait, radio broadcast Jan. 15, 2009), available at http:// www.steinershow.org/radio/the-marc-steiner-show/ january-15-2009;
397. On Point with Tom Ashbrook, supra note 188; Where We Live: Free Speech and the Internet-How far should First Amendment protections extend into cyberspace? (WNPR Conn. pub. radio broadcast Apr. 7, 2009), available at http://www.cpbn.org/program/where-we-live/episode/wwl-free-speech-and- internet7mini-calendar/2009/05/all&.
398. See Sonja B. Starr, Sentence Reduction as a Remedy for Prosecutorial Misconduct, 97 GEO. L.J. 1509,1542-1543 (2009).
399. Id.
400. I thank Sonja Starr for highlighting these concerns for me.