Study: People Harassed Online Have Few Legal Protections

Internet speech is protected under the First Amendment, for better and worse. 
Kacper Pempel/Reuters

UPDATED, Tuesday, 4:55 p.m.

Lori Stewart started her blog, This Just In, as a way of writing about gardening and sharing stories about her family. She started a program and related website, Toys for Troops, to send toys to soldiers so they could distribute them to children overseas.

All of which seems uncontroversial enough—but that did not protect Stewart from online harassment. A troll using the name JoeBob began leaving profane, vile comments on her blog, messages filled with curse words and violent fantasies about the death of her son. Stewart tried turning off comments, and JoeBob retaliated by creating an email address under her name to send anti-Semitic and homophobic comments to her friends and family. JoeBob kept up his program of harassment for seven whole years.

JoeBob’s tenacity is perhaps unusual, but online abuse isn’t. What, then, can victims like Stewart do to protect themselves? The answer is often, unfortunately, not much.  The journalist Amanda Hess, for example, wrote about receiving death threats. When she called the police, the cop who showed up "anchored his hands on his belt, looked me in the eye, and said, ‘What is Twitter?’"

No doubt there are police out there who have used social media. Still, according to a recent paper from the Center on Law and Information Policy at Fordham Law School, Hess’s experience is not unusual. "Although online harassment and hateful speech is a significant problem, there are few legal remedies for victims," authors Alice Marwick and Ross Miller wrote. Victims who go to the police often find what Hess found; most law enforcement agencies have neither the resources nor the expertise to deal with harassment, and are ill-equipped to even understand the problem, much less take it seriously.

Moreover, the paper says, "internet speech is protected under the First Amendment"—which means it's often very difficult to craft state laws which criminalize harassment. Defamation can be prosecuted in some cases, provided that the defamatory statement can be proved untrue—for example, if a harasser claims a victim has a disease that the victim doesn’t have. True threats can also be prosecuted, where a speaker "means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals."

But the barrier to prosecuting even this sort of harassment is quite high. Marwick and Miller point to the case of United States v. Alkhabaz, in which the defendant described in detail on a Usenet message board violent sexual acts he imagined performing on one of his classmates. The case was eventually thrown out because the defendant did not email the story to his classmate, and did not intend her to see it. As the authors say, "Alkhabaz demonstrates that the burden to determine a 'true threat' is quite high, and presumably most hostile online speech would fail to meet the standard determined by the Sixth Circuit." In fact, Marwick and Miller found very few incidents in which a harasser faced criminal penalties. It hardly ever happens.

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Noah Berlatsky is a contributing writer for The Atlantic. He edits the online comics-and-culture website The Hooded Utilitarian and is the author of the forthcoming book Wonder Woman: Bondage and Feminism in the Marston/Peter Comics, 1941-1948.

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