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.”

Conclusion

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.



By Paul Ohm†

I applaud the Denver University Law Review for organizing a symposium around the Cyber Civil Rights work of Danielle Citron, because she deserves great credit for shining a light on the intolerable harms being inflicted on women every day on online message boards.  Professor Citron (along with Professor Ann Bartow) has convinced me of the importance of the Cyber Civil Rights movement; we urgently need to find solutions to punish and deter online harassers, to allow the harassed to use the Internet without fear.

But although I embrace the goals of the movement, I worry about some of the solutions being proposed in the name of Cyber Civil Rights.  Professor Citron, for example, has suggested mandatory logfile data retention for website providers.[1]  Suggestions like these remind me of something I have heard Professor Ed Felten say on many occasions: “In technology policy debates, lawyers put too much faith in technical solutions, while technologists put too much faith in legal solutions.”  This observation so directly hits its mark, I feel compelled to give it a name: Felten’s Third Law.[2] For solving problems, lawyers look to technology, and techies look to law.

By Viva R. Moffat

Danielle Citron’s groundbreaking work on cyber civil rights raises a whole variety of interesting possibilities and difficult issues.  In thinking about the development of the cyber civil rights agenda, one substantial set of concerns revolves around a regulatory question: what sorts of claims ought to be brought and against whom? The spectrum of options runs from pursuing currently-existing legal claims against individual wrongdoers to developing new legal theories and claims to pursuing either existing or new claims against third parties.  I suggest here—very briefly—that for a variety of reasons the cyber civil rights agenda ought to be pursued in an incremental manner and that, in particular, we ought to be quite skeptical about imposing secondary liability for cyber civil rights claims.

By Eric Goldman

Introduction

I learned a lot from Danielle Keats Citron’s articles Cyber Civil Rights and Law's Expressive Value in Combating Cyber Gender Harassment.  I realized that women are experiencing serious harms online that men—including me—may be unfairly trivializing.  I was also convinced that, just like the 1970s battles over workplace harassment doctrines, we will not adequately redress online harassment until we first acknowledge the problem.

However, finding consensus on online harassment’s normative implications is trickier.  Online harassment raises cyberspace’s standard regulatory challenges, including:

• Defining online harassment, which may range from a coordinated group attack by an “online mob” to a single individual sending a single improper message.
• Dealing with anonymous or difficult-to-identify online harassers.
• Determining how online harassment differs from offline harassment (if at all)[1] and any associated regulatory implications.
• Deciding if it makes more sense to regulate early or late in the technological evolution cycle (or never).
• Allocating legal responsibility to intermediaries.

By Joe Aguilar

The advent and proliferation of the legal blog is unquestionably altering the way legal scholarship operates.  It has attracted the attention of scholars such as Richard Posner and Stephen Bainbridge.  This outlet allows them a voice on issues that develop at speeds too quick for the printed world.  However, one critical segment of the legal educational world is often forgotten in the discussion of how blogs change legal scholarship: the law student. 

Alan K. Chen

What role do blogs and online law review supplements play in evaluating faculty for hiring and promotion purposes?  As new ways of disseminating knowledge evolve, all law schools will have to struggle with this and other questions.  I offer only a tentative prediction here, because I think we will need more collective experience before we fully understand how these materials fit into traditional academic literature.  Moreover, as Ellen Podgor has observed, it is altogether possible that before long, even these relatively new media will be supplemented or surpassed by other methods for conveying scholarly ideas.  Such developments could require us to rethink the whole field again.

By Sam Kamin

There is a wide variety of law blogs on the market today.  Some of these blogs cover law school gossip—the comings and goings of faculty and deans, the rankings of schools, and the like.  Some are a resource on substantive law, a place to keep up with daily judicial opinions and legislative developments.  Some are of general interest, providing a way to keep a finger on the pulse of the legal academy, to know what issues and topics are making the rounds and garnering interest.  Faculty read these blogs and write for them to engage in debate and discussions with their colleagues scattered throughout the country.

However, blogs are more than just a way to keep on top of the issues of the day; they have also become an important and emerging tool in the production of faculty scholarship.  Faculty use blogs to aid their scholarship in at least two important ways.  First, blogs are a place to do legal research—to find answers to important substantive questions.  Second, blogs are a way to get valuable, early feedback on scholarly ideas.

By Dave Kopel

Blogging is creating a Golden Age of legal scholarship.  For the first time in the memory of any living person, legal scholarship is now connecting with an audience beyond the world of law professors and legal professionals.

Legal blogs today are the primary medium by which non-lawyers can learn about interesting new law review articles.  As a result, the right article may be read by an audience of thousands, or occasionally, tens of thousands.  And once in a while, over a hundred thousand—as was Jim Lindgren’s Yale Law Journal article exposing the pervasive fraud in Michael Bellesiles’ award-winning book Armed America, which had made up many sources and lied about many others in order to support a fraudulent claim that guns were rare in early America.

This series marks the formal launching of the Denver University Law Review’s online supplement, DULR Online. The DU Law Review is not the first to test the utility of an online counterpart to a law journal; several other journals have already established online forums.  Despite this growing trend, many questions about the role of electronic resources in legal scholarship remain unanswered.

This series aims to expand upon a few of the issues surrounding online legal scholarship. Dave Kopel begins the discussion by examining how online resources enable the direct and relatively unfiltered dissemination of ideas to students, scholars, and laypeople.  Mr. Kopel compares this to the use and later abandonment of “law French” during the thirteenth century.