This post is part of an eleven-part series entitled Cyber Civil Rights. Click here for a PDF version of the entire Cyber Civil Rights series.
By Robert J. Kaczorowski
Danielle’s work in Cyber Civil Rights reminds me of a program Fordham Law School had with the Department of Justice about twenty years ago. Then, Fordham Law School placed a couple of its students in the DOJ’s Civil Rights Section. I supervised these students in an externship program that paralleled the DOJ’s Honors Program. When Congress enacted the American with Disabilities Act of 1990, Fordham law students were assigned to the ADA’s division within the Civil Rights Section. The ADA prohibits discrimination against individuals because of a disability in employment, in public accommodations, commercial and transportation facilities, and telecommunications.
The students’ work gave them a real education in the continuing process of law formation. The ADA authorizes the United States Attorney General to initiate law suits against persons or groups engaged in a pattern or practice of discrimination in violation of the Act. DOJ staff attorneys asked the externs to research and write legal memoranda related to issues arising from broad, ambiguous language in the ADA as it applied to the facts summarized in complaints filed with the DOJ. For example, the ADA defines a covered disability as a physical or mental impairment that “substantially limits one or more of the major life activities” of an individual. Employers were required to make “reasonable accommodations” to enable a qualified employee with a disability to perform her job, unless the accommodation would impose an “undue hardship” on the employer. Owners of commercial buildings and public accommodations in existence when the ADA took effect were required to remove architectural barriers if their removal was “readily achievable.” The meaning of terms such as “substantially limits,” “major life activities,” “reasonable accommodations,” “undue hardship,” and “readily achievable” had to be determined ultimately by the federal judiciary. But the courts did not get the opportunity make these determinations until the DOJ filed the lawsuits. And, importantly, the DOJ decided whether to bring any particular lawsuit on the bases of its interpretations of these terms. Thus, in a very real way, the Executive Branch engaged in the process of law formation in the ways it interpreted the ADA and in the kinds of lawsuits it brought to enforce the law.
Learning from the Past
Danielle’s Cyber Civil Rights demonstrates that law formation continues both through and beyond governmental action. She proposes civil rights strategies to supplement traditional tort and criminal remedies to online harassment. An example of imaginative lawyering and original scholarship, Danielle conceptualizes cyber harassment as a civil rights violation and reinterprets federal civil rights law to cover activities that could not possibly have been contemplated by the framers of federal civil rights statutes. Some of these civil rights provisions were enacted immediately after the Civil War in response to a reign of terror conducted by the Ku Klux Klan and other Klan-like groups that functioned as a paramilitary wing of the Democratic Party in the former Confederate states of the South. Although the Klan was engaged in guerrilla warfare and represented a continuation of the Civil War, the federal government responded by enacting civil rights laws that authorized the federal prosecution of civil rights violations. The Department of Justice lawyers were so effective in prosecuting terrorists under these civil rights statutes that they succeeded in destroying the Klan within a few years. Danielle makes a brilliant connection between the nineteenth century Klan and the twenty-first century cyber-mobs. Like today’s cyber-mobs, the Klan sought to deny their victims their equal right to participate in the social, economic, and political activities of their time. Danielle recommends the use of federal civil rights provisions, including those that were used so effectively against the Klan in the 1870s, to deal with cyber-mobs today.
Admittedly, the Klan’s methods and the circumstances in which they functioned differ from today’s cyber terrorists. Unlike today’s cyber-attackers, the Klan’s attacks usually involved physical violence. But, like today’s cyber-harassers, the Klan also threatened physical violence, encouraged others to inflict physical violence, and engaged in economic harassment to silence their victims. Klan members maintained their anonymity by hiding their identities behind hooded masks, oaths of silence, and by operating in the darkness of night. The opaque quality of the Internet enables current cyber-mobs to maintain their anonymity. Both groups terrorized their victims and singled out historically subordinated groups as their victims: in the case of the Klan, primarily African-Americans; in the case of today’s cyber-mobs, people of color, religious minorities, gays and lesbians, and especially women.
Applications in Cyber Civil Rights
In her analysis of cyber civil rights, Danielle explores the nature of the harms inflected by cyber mobs on the individuals they target, their victims’ communities, and society in general as well as the legal, technological, and practical difficulties involved in remedying these harms. There is no need to repeat what Danielle has already stated in her published articles. It is worth noting, however, that her examination is fair-minded as she presents views and arguments opposed to those she advocates, and she responds with her own well-reasoned and, I might add, persuasive replies.
In her current work, Danielle extends her analysis of cyber civil rights by focusing on law’s “expressive function.” Danielle explains how developments in the law of sexual harassment affected the ways in which both men and women in the 1970s perceived “harmless flirting,” behavior they subsequently viewed as exploitation of sexuality in the workplace. Law contributed to changes in the public’s understanding, and changes in the public’s understanding led to changes in behavior. Danielle argues that law can effectuate comparable changes in the public’s understanding of behavior that many today regard as trivial or frivolous or expected for the Internet, but which inflicts serious harms on women. Her goal is to apply civil rights law to condemn cyber gender harassment and to change the norms of online behavior. Civil rights law can educate the public and change the widespread and damaging idea that cyber gender harassment is trivial by recognizing and classifying it as gender discrimination. Changing “the social meaning of cyber gender harassment from a triviality to invidious discrimination to be punished and remedied,” Danielle argues, can transform behavior on the Internet in ways that will enable women to claim it “as equally their own.”
The aggressive enforcement of civil rights after the Civil War produced a backlash that ended civil rights enforcement for almost a century. Northern and Southern opponents of civil rights enforcement pressured the Grant Administration to stop enforcing federal civil rights statutes. The Supreme Court further inhibited the government’s efforts by narrowly interpreting the Reconstruction Amendments and the civil rights statutes Congress enacted to implement them. This history raises the question whether aggressive enforcement of remedies available in federal civil rights and criminal statutes for cyber harassment will meet a similar fate. I doubt that it will, but it is a question worth considering.