Tuesday, January 05, 2010
If you’re a hammer, everything looks like a nail. If you’re a law professor, every social problem seems to call for a legal solution. “Cyberbullying” is this decade’s hate speech. Like “hate speech,” "cyberbullying" is a label, not a legal definition. The inherently pejorative label carries the implication that “cyberbullying” is a new and serious problem that the law should address. Of course, the law already does address “cyberbullying.” Online threats, stalking, and hacking are crimes. Online defamation is libel, and intentional infliction of emotional distress is tortious whether it takes place online or off.
But what, you might ask, can be done about cyberbullies whose bad conduct isn’t proscribed by existing law? For example, what should be done about law students who make sexist or racist or demeaning remarks about their classmates online, gaining the courage to speak from the cloak of anonymity? Perhaps they should be denied admission to the bar on the grounds that they lack the character and fitness necessary to be lawyers. This is the topic for debate by an AALS panel sponsored by the Section on Women in Legal Education and the Section on Defamation and Privacy. The title of the panel is "The First Amendment Meets Cyber-Stalking Meets Character and Fitness," and it will be held on Saturday morning at 8:30. Full disclosure: I'm on the panel, cast in the role of defending cyberboorishness against legal sanction. It should be fun.
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That does sound like an interesting panel. Please follow up with a "post-panel post" for those of us not attending the meeting.
Posted by: Jeff Yates | Jan 5, 2010 5:10:44 PM
On-line defamation is actionable libel, but not for the host of the libel, unlike in the off-line world. That's one of the key issues, of course, that must be addressed. The other is that defamation and infliction of emotional distress in Cyberspace have the potential to inflict harm that is often greater than the same actions off-line--because of the 'permanence' and widespread availability (thanks to Google et al.) of the misconduct. ("Cyberbullying," by the way, is not this decade's hate speech, since hate speech is still hate speech even in this decade, though some of it has migrated on line, and it is, in any case, not addressed very well by American law.)
Posted by: Brian | Jan 5, 2010 11:22:09 PM
"If you’re a hammer, everything looks like a nail." I've been looking for the source of this, my favorite aphorism, for years, unsuccessfully. Do you know where it comes from? I thought for a while it was Russian, but now I have my doubts.
Posted by: Jason Kilborn | Jan 6, 2010 11:41:05 AM
The quote appears to have originally been "He that is good with a hammer tends to think everything is a nail" and originates with industrial psychologist Abraham Maslow. It is known as the "Maslow Maxim."
Posted by: Michelle | Jan 6, 2010 8:55:50 PM
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