Expression of Cyber Mobs

In discussing the applicability of civil rights law to internet abuses, Danielle Citron relies heavily on the Court’s narrowing of R.A.V. v. City of St. Paul. Specifically, she notes that the Court limited the R.A.V. ruling with its subsequent ruling in Mitchell v. Wisconsin, which held that additional penalties for hate crimes were constitutional, as they punished defendants for their discriminatory conduct, not their bigoted ideas. In doing so, the Court noted that “whereas the ordinance struck down in R.A.V. was explicitly directed at expression (i.e., ‘speech’ or ‘messages’), the statute in this case is aimed at conduct unprotected by the First Amendment.” Accordingly, Citron correctly concludes that the State may inflict punishment not for an expression of bigoted ideas, but for concrete conduct which is motivated by that prejudice. In this way, the law is not punishing the ideas, but rather the actions itself, and therefore avoids infringing on First Amendment rights to free expression.

Citron then attempts to transfer this theory to cyber-bullying, suggesting that cyber mobs be regulated under civil rights law. However, her argument fails in its assumption that all, or even most, cyber bullying is motivated an attempt to inflict “real-life” effects. She cites several examples of cyber mobs inflicting “real-world” harm, such as preventing a woman from obtaining ad revenue by shutting down her blog through denial of service messages, and impeding from an African American’s job hunt through the dissemination of false information. However compelling these examples may be, they leave out a large category of cyber mob’s speech, that which is not motivated by inflicting “real world” harm, but rather through mere expression of hatred or bias.

Whether or not this hate speech is protected under the First Amendment is not the subject of this post. Rather, it is important to realize that Citron, by assuming that all cyber-mob activity is designed to inflict real-world harm, overlooks a significant portion of the internet misconduct she seeks to limit. According to Citron’s interpretation of R.A.V. and Mitchell, without the motivation to inflict harm, this speech would merely be considered expression, and therefore may well be immune to civil rights law.

Question of the Week: Should cyber-bullying of less vulnerable individuals, such as white males, be more tolerated than similar activity directed at groups who have traditionally faced discrimination?