Comment on Mahanoy v. B.L
(print and online)
Much blame, much truth, and much exaggeration can be attributed to almost all sides of this difficult controversy. As is so often the case, simplistic answers are misplaced.
Greg Lukianoff, a leader of the fight to raise awareness of challenges to free speech on college campuses and to challenge restrictions on campus speech, offers valuable perspective on the deep roots of what often appears as an unprecedented attack on campus speech. He is right that despite the fact that every college speech code challenged in court has fallen, court rulings about particular hate speech codes are not self-executing: each school’s code, and each revised code following a court ruling, may need to be challenged in court. For this reason, hate speech codes imposed by university administrations appear to be far more prevalent that they were decades ago.
I’m honored to be part of this Symposium on Danielle Citron’s incisive and powerful Hate Crimes in Cyberspace. My comments focus on some free speech issues that persist despite Danielle’s determination to fit her proposals into existing First Amendment doctrine.
The speech at issue is largely aimed at individuals rather than taking the form of noxious group disparagement (racist or sexist rants about groups of people), but it is often based at least in part on gender, race or sexual orientation. Citron shows how the personal nature of the postings (often including the target’s real name and identifying information) can lead to the denial of job offers, loss of work for those who are employed, withdrawal from social media that are essential to success in many endeavors in the modern world, and loss of identity—as in the case of a woman who had to abandon a successful blogging career, a feminist speaker who could no longer use her real name when travelling or publicize her talks, and several women who felt they had to masquerade as men in order to participate safely in online forums. Citron persuasively demonstrates that online speech starting with one speaker too often transmutes into mob speech in cyberspace and may be linked to tangible intimidation, harassment and violence in the physical world.
Anthony Elonis—whose vicious online ruminations gave rise to the decision bearing his name—is a very angry man. The annals of the foundational speech cases are full of angry, disagreeable, and even vicious individuals. When such people—cross-burners and other racists, Nazis, anti-abortion zealots, and misogynists—fight for their personal freedom to express constitutionally protected thought we hate, everyone’s freedom of expression rides on the correct legal resolution of their claims.