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Monday, August 29, 2005

Fox News and Vigilante Justice Gone Bad

Foxnews1There have been some interesting discussions recently about people taking matters into their own hands and shaming others whom they witness committing crimes.  A while back, I wrote about the shaming of the dog poop girl, whose picture and personal information were placed on a website after she failed to clean up her dog's poop on the subway.  Kaimi Wenger also had some interesting thoughts about the case here and here, as well as did Marcy Peek in a post about Internet vigilantism.  Just the other day, Brooks Holland writes about a case involving the shaming of a NYC subway flasher, where a woman caught a picture of him on her cell phone camera and posted it online. 

Fox News now has gotten into the shaming business. An LA Times article states:

Randy and Ronnell Vorick thought La Habra was about as far away as one could get from terrorism. They were wrong.

For the last 2 1/2 weeks, the lives of the couple and their three children have been plunged into an unsettling routine of drivers shouting profanities, stopping to photograph their house and โ€” most recently โ€” spray-painting a slogan on their property.

Their house, a suburban fixer-upper the Voricks bought three years ago, was wrongly identified in a cable news broadcast as the home of a terrorist. . . .

In what Fox News officials concede was a mistake, John Loftus, a former U.S. prosecutor, gave out the address Aug. 7, saying it was the home of a Middle Eastern man, Iyad K. Hilal, who was the leader of a terrorist group with ties to those responsible for the July 7 bombings in London.

Hilal, whom Loftus identified by name during the broadcast, moved out of the house about three years ago. But the consequences were immediate for the Voricks.

Satellite photos of the house and directions to the residence were posted online. The Voricks told police, who arranged for the content to be taken down. Someone even removed the street sign where the Voricks live to provide some protection.

This Fox News incident raises the problems with condoning or facilitating people taking the law into their own hands and attempting to shame people by disseminating their personal information. There's little due process in these endeavors and often shoddy and incomplete fact checking. How can we prevent innocent people from being wrongfully labeled as criminals? Moreover, the shaming incidents inspire a kind of mob justice, and they can lead to violence. As for Fox News, it has apologized for the incident:

"John Loftus has been reprimanded for his careless error, and we sincerely apologize to the family," said Fox spokeswoman Irena Brigante. Loftus also apologized and told The Times last week that "mistakes happen."

"I'm terribly sorry about that. I had no idea. That was the best information we had at the time," he said.

But the problem with the apology is not just that the address was wrong.  It is with Loftus's eagerness to facilitate vigilante justice. The problem with vigilantism is that it often leads to more problems than it cures.  Bernie Goetz isn't somebody we want to bring back.

Posted by Daniel Solove on August 29, 2005 at 12:05 PM in Criminal Law, Daniel Solove, Information and Technology | Permalink

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Comments

Couldn't a pro-shamer argue that this is exactly what we have defamation law for? These poor people weren't public figures, so they need not show actual malice... presumably Fox News will quietly pay up...

Posted by: Paul Gowder | Aug 29, 2005 12:48:59 PM

Are we supposed to form policy opinions based on a single anecdote? Isn't this as wrong-headed as the current sex offender hysteria Berman and others have been blogging?

I could apply your reasoning to the criminal justice system. All it would take for your life to be utterly ruined would be for a student to falsely say you assaulted her. It happens, and the good folks at Crime Prof even collect occasional examples. But does the prospect of false rape complaints mean that rape charges shouldn't be brought? By the way, should someone who files a false criminal charge have em's name publicized to (hopefully) prevent em from harming someone again? Or should em be able to harm future victims?

Should I cease my practice of blogging the names of prosecutors who engage in prosecutorial misconduct? Whenever I read an opinion where a conviction is reversed for prosecutorial misconduct, I dig up the briefs and blog the name; thus ensuring that the unethical prosecutor's name is available in Google, so that others know to watch their backs. Is this wrong? Should I let wrongdoers hide behind a veil of anonymity?

You also note that in these cases there is no process. Yet here FoxNews corrected the error. This has been a huge story. Hopefully FoxNews and the former prosecutor (who, if he relied upon information he learned while a prosecutor, or from a prosecutor, is criminally liable) will be sued. If FoxNews or the former prosecutor cannot be sued, then the problem is not with e-shaming as such, the problem is that culpable parties aren't held liable.

Before determining whether the government should (vis-a-vis legislation or through common law causes of action) prohibit private parties from publishing truthful information, we should see if there are benefits to the practice. Thus, one bad example, though emotionally appealing, isn't proof that e-shaming should be stopped.

Posted by: Mike | Aug 29, 2005 12:49:33 PM

Are we supposed to form policy opinions based on a single anecdote? Isn't this as wrong-headed as the current sex offender hysteria Berman and others have been blogging?

I could apply your reasoning to the criminal justice system. All it would take for your life to be utterly ruined would be for a student to falsely say you assaulted her. It happens, and the good folks at Crime Prof even collect occasional examples. But does the prospect of false rape complaints mean that rape charges shouldn't be brought? (BTW, prosecutors are the only ones who think prosecutorial discretion protects the innocents, so a citizen doesn't have much more protection - at least before charges are filed - than someone who is e-shamed. Worse, prosecutors have absolute immunity from suit for filing decisions, so even if a prosecutor filed charges against you to settle a law school grude, you would have no remedy against him or her.)

By the way, should someone who files a false criminal charge have em's name publicized to (hopefully) prevent em from harming someone again? Or should em be able to harm future victims?

Should I cease my practice of blogging the names of prosecutors who engage in prosecutorial misconduct? Whenever I read an opinion where a conviction is reversed for prosecutorial misconduct, I dig up the briefs and blog the name; thus ensuring that the unethical prosecutor's name is available in Google, so that others know to watch their backs. Is this wrong? Should I let wrongdoers hide behind a veil of anonymity?

You also note that in these cases there is no process. Yet here FoxNews corrected the error. This has been a huge story. Hopefully FoxNews and the former prosecutor (who, if he relied upon information he learned while a prosecutor, or from a prosecutor, is criminally liable) will be sued. If FoxNews or the former prosecutor cannot be sued, then the problem is not with e-shaming as such, the problem is that culpable parties aren't held liable.

Before determining whether the government should (vis-a-vis legislation or through common law causes of action) prohibit private parties from publishing truthful information, we should see if there are benefits to the practice. Thus, one bad example, though emotionally appealing, isn't proof that e-shaming should be stopped.

Posted by: Mike | Aug 29, 2005 12:53:57 PM

Mike,

Isn't one of the reasons we have a legal system to handle criminal behavior to stave off people taking the law into their own hands? Your analogy to bringing actual criminal charges is thus inapt. What I'm objecting to is vigilante justice outside of the law -- the notion that we should encourage people to take matters into their own hands and mete out justice in cyberspace. I don't think that Bernie Goetz in cyberspace is a good thing, and I don't think celebrating instances where people take matters into their own hands -- whether in cyberspace or not -- is productive. The reason is that there's a value to having justice carried out by our legal system rather than by self-appointed cyber cops.

Posted by: Daniel Solove | Aug 29, 2005 1:21:03 PM

I don't think your metaphor works. When you say "vigilante and "taking the law into their own hands," what image is conveyed? I think of Charles Bronson, Bernard Goetz, or one of the coolest comic book characters of all time - Frank Castle (a/k/a The Punisher). Unlike Bronson, Goetz, or Castle, the e-shamers are not killing anyone.

People are spreading gossip through the Internet, just as people used to spread gossip over the phone. If the gossip is shown to be false, then I hope the gossip-mongers are being sued.

No one is lynching anyone, no one is being killed. People are being embarrassed. There's a huge difference between shooting someone on the subway (or in Central Park) and publishing truthful information on the Internet.

First, killing someone is different from embarrassing them. Second, a dead person can't answer the accusations. Third, where as vigilantism has a disgraceful tradition, gossip has been a part of human existence for as long as homo sapiens have had language.

Again, you seek to have the government prevent private parties from disclosing embarrassing (but truthful) facts about others. While it's certainly persuasive to reframe this claim as an effort to stop vigilantism, at base, you're seeking to censor others. Absent some compelling evidence that censorship is in order, I don't see any way we'll agree, since I can only think of a few situations where censorship is in order (matters of national security, but not human insecurity, come to mind).

Posted by: Mike | Aug 29, 2005 1:47:38 PM

Mike,

Given your stance on free speech, you're right that we probably won't agree. Just curious -- What do you think of the growing number of ex-lover revenge websites, where ex-lovers post people's nude photos as revenge? See http://www.revengeworld.com for an example.

Posted by: Daniel Solove | Aug 29, 2005 1:54:04 PM

Dan,

That is a hard case. The fat Star Wars kid you cited a long time ago is a hard case. In other words, I don't know.

Tentatively, the main difference is this: If the subway girl or pervert had been charged with a crime, then their conduct would have been a matter of pulic knowledge, since a conviction is a public record. Nude photos, taken in the privacy of a bedroom, otoh, would not be a matter of public knowledge.

So, if the photos were taken at a public nude beach, I wouldn't have any problem with those sites, since the sun bather reliquished privacy in em's private parts. But if those photos were taken in the privacy of the bedroom, then yes, I would take issue with those sites.

More problem cases: If I lift up my arm in the subway, my shirt comes untucked, and my gut is exposed, can I protest when someone publishe's a site called "Mike's gut"? If I leave my bedroom open while getting dressed (such that my neighbors can see me), can I protest if they published those gruesome photos? I don't know, since I only thought about those examples 30 seconds ago.

Posted by: Mike | Aug 29, 2005 2:04:59 PM

Dan, for once I'm with you on this one, although Mike raises valid and important concerns that are perhaps fatal to any attempt to create legal liability for online shaming (I would get away from "vigilantism" -- Bernie Goetz shot people, which is much worse than humiliation, at least in most people's books).

I would add to your collection of anecdotal evidence Zabasearch's proposal to add a blog to its personal information service -- so now you can look people up and see what gossips have to say about them.

Posted by: Bruce | Aug 29, 2005 3:25:28 PM

You left out the funniest part of the story. Apparently, a loyal Fox News viewer who vandalized the Vorick house tried to spray-paint "terrorist" on the walls of the house, but wrote "terrist" instead. Never let it be said that property rights (or remedial English, for that matter) pose an obstacle to an overeager Fox News devotee.

Posted by: Yuval Rubinstein | Aug 29, 2005 4:46:12 PM

The Star Wars kid's video should never have been posted. It was a private video he took of himself, not to mention he's a minor. Photos of ex-lovers - OFF LIMITS!!! Videos a couple made while having sex which are stolen by their maid and then posted OFF LIMITS!!!

While I am not a lawyer, common sense tells me there must be some privacy issues here.

Flashing your dick in public, letting your dog crap on my lawn, letting your ass crack peek out of your jeans at the playground, all fair game.

There is a fine line between public shaming (girl with poop dog) and inciting violence/action as was done by Fox (the assholes), I am not sure how to define it, but I know it when I see it.

Posted by: Mieke | Aug 29, 2005 8:58:39 PM

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