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Tuesday, January 28, 2014

Evaluating Online Vigilantism Redux

My previous post about online vigilantism attracted a number of thoughtful comments.  Rather than respond to the various strands of analysis, I thought I'd write a follow-up post to try to frame with more precision some of the issues my original post raised.

As a threshold matter, one question is whether the examples I discussed -- Jamie Carillo's YouTube posting of a telephone confrontation with a teacher who sexually abused her; the actions of KYAnonymous in relation to the Steubenville rape case -- are even examples of vigilantism.  One reason I discussed these examples in a post about vigilantism is simply that at some people seem to think of them as vigilantism, or at least headed in that direction (see here and here).

After some thought, it still seems to me that these are acts of vigilantism, at least based on the facts we currently know.  (Several of the commenters disagree with me, and I welcome pushback on this.)  But suppose we take the take the Oxford definition of vigilante as "a member of a self-appointed group of citizens who undertake law enforcement in their community without legal authority, typically because the legal agencies are thought to be inadequate."  Jamie Carillo fits this definition: she publicized an event she believed was a crime because she thought legal institutions offered no recourse given that the relevant statute of limitations had run.  KYAnonymous fits the definition too: although prosecutors were moving ahead in Steubenville, he believed that the public response was insufficient and wanted to call additional attention to a broader culture of sexual assault; the legal system was inadequate to accomplish these goals.

Some commenters saw a clear distinction between speech and vigilantism.  I'm not sure I agree, or, to put it more precisely, I think that speech can be vigilantism.  If we think of vigilantism as a means of enforcing extra-legal punishment, then speech can do that.  Publicizing negative information about someone is a way of directing negative attention to them, with potentially serious real-world consequences for reputation and livelihood.  Recall that Andrea Cardosa resigned her job after Carillo's video went viral.  And this would have happened regardless whether the formal legal system was, or could have been, shaken into action.  As one commenter to my previous post put it: "[P]ublicly calling someone a child molester is, in fact, extra-legal punishment. . . . That it was justified does not mean it was not vigilantism."

So if we agree, at least for the sake of argument, that these are acts of vigilantism, the question is how we should evaluate them.  I don't think of vigilantism as being inherently positive or negative (although there seesms to be a range of opinion on this).  But suppose we agree that at least some acts of vigilantism are socially valuable. In no particular order, here are some ideas that previous commenters suggested as factors in determining whether vigilantism deserves praise or condemnation:

  • Whether the target of vigilantism engaged in heinous behavior that outweighed any concerns we might have with the vigilantism itself;
  • Whether any laws the vigilante broke were themselves defective (i.e., the wiretapping statute in California);
  • Whether the vigilante acted on her own behalf or that of others;
  • Whether the background legal system is adequate or deficient;
  • Whether the occasional act of vigilantism that we'd condone is outweighed by concern for creating a culture of vigilantism.

Perhaps the lesson in all of this is simply that more precision is needed when we use the word "vigilante," given that the word means rather different things to different people.

For those interested in the topic, I've begun reading Richard Maxwell Brown's Strain of Violence (thanks for the recommendation, Bruce Boyden!) and so far it's fascinating.

Posted by Nancy Leong on January 28, 2014 at 01:22 PM | Permalink

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Nancy writes:

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[S]uppose we take the take the Oxford definition of vigilante as "a member of a self-appointed group of citizens who undertake law enforcement in their community without legal authority, typically because the legal agencies are thought to be inadequate." Jamie Carillo fits this definition: she publicized an event she believed was a crime because she thought legal institutions offered no recourse given that the relevant statute of limitations had run.
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Let me push back on this, as I disagree that Carillo fits the definition. She publicized an event, but she was not "undertaking law enforcement." If publicizing an event counts as enforcing the law as law enforcement, then the New York Times is a law enforcement agency, which seems surprising.

You suggest that publicizing an event can have negative consequences for the wrongdoer who had her act publicized, which is sort of like a kind of law enforcement. But I don't think a but-for causal connection to some kind of negative consequence is enough to count as "undertaking law enforcement." For example, Carillo's former teacher was not removed from her position to punish her for her past crimes against Carillo. Instead, she was removed from her position because those who molest children often repeat the crime, so it would be extremely important going forward to remove her from a position in which she interacted repeatedly with children.

Posted by: Orin Kerr | Jan 28, 2014 1:37:29 PM

Fair points, Orin, but let me try to disaggregate a few things.

First, "undertaking law enforcement" is a different thing from being a "law enforcement agency." So even if the NYT sometimes publicizes events in ways that lead to negative consequences for those whose lives are publicized, that's still a ways off from saying that NYT is a law enforcement agency.

Second, I think my definition of "undertaking law enforcement" is somewhat narrower than you are suggesting. Carillo has said that she wanted to keep Cardosa away from other kids. One of the goals of incarcerating people who commit sex offenses is to keep them away from kids. So Carillo was trying to effect the goals of enforcing the law, in a situation where (she thought) legal institutions weren't sufficient.

So I would define "undertaking law enforcement" as "trying to accomplish the goals of law enforcement," and vigilantes as people who do that in situations where legal institutions aren't available to help. Perhaps that just shifts the debate to age-old questions about the goals of law enforcement. But it does make the definition substantially narrower than "publicizing the event in a way that has negative consequences for those involved," which I think is too broad.

(And just a quick factual note -- my understanding is that Cardosa resigned, rather than being removed.)

Posted by: Nancy Leong | Jan 28, 2014 2:03:54 PM

Thanks for the response and the clarification, Nancy. If we're disagreeing about the definition of the word "undertake" found in the Oxford definition of the word "vigilante," then perhaps the dictionary definitions aren't helpful one way or the other. But my broader point is that I think there is a difference between "doing X" and "doing something that shares some goals of X." If you play with levels of generality, you can find some principle by which most things share something with most other things. But I don't think that makes them the same, especially when we're evaluating distinctions between different kinds of acts.

Posted by: Orin Kerr | Jan 28, 2014 2:17:57 PM

(Oh, and perhaps "play with levels of generality" comes off as too critical; perhaps "adjust levels of generality" would be better.)

Posted by: Orin Kerr | Jan 28, 2014 2:24:14 PM

By this definition, any public criticism of a person or entity is vigilantism. At least if it involves accusations or suggestions of wrongdoing, since airing those accusations, and perhaps bringing about or hoping for some sanctions, is what law enforcement does.

Posted by: Howard Wasserman | Jan 28, 2014 11:39:33 PM

Howard and Orin, I think of vigilantism as inherently including an element of intent. Someone who kills someone else is a murderer, but if they kill someone else in an effort to exact justice, they are also a vigilante. A newspaper that publishes harmful information about someone in furtherance of its information dissemination function is simply a newspaper. Someone who, on the other hand, shares information about someone with the purpose of exacting justice is also a vigilante. It is this intent to punish someone for perceived wrongdoing that matters, at least in my mind.

You both seem to suggest that information dissemination can never amount to vigilantism. I'm unclear about the origins of that limitation. There are many circumstances where information dissemination would seem to fall into my sense of the word. What if, for example, an individual harmed by the acts of a corrupt police official publicizes information about the location of that official in hopes that others will kill or harm her as punishment for her corrupt acts. That strikes me as being quintessential vigilantism.

Posted by: Justin Pidot | Jan 29, 2014 10:20:15 AM

Justin, I agree that intent is critical, but I think the question has to be more specific: intent to do what? You suggest the standard for identifying a vigilante is "intent to exact justice," but I think that's too general to be helpful. A reporter who cares about uncovering wrongdoing and writes a story about that wrongdoing may have an intent to exact justice, but we still don't think of the reporter as a vigilante. The relevant intent is more specific: It is the intent to take the place of the state in punishment. I take that to be the meaning of the quoted Oxford dictionary definition, to "undertake law enforcement without legal authority." That definition indicates that a vigilante takes steps that are designed to enforce laws as the state would, imposing punishments that the state would, but without the legal authority and legitimacy of the state in a democracy. It's the substitution of the unaccountable private actor for the accountable state actor that is the core of vigilanteism.

From that perspective, Carillo was not a vigilante. She is the victim speaking truth to power, not someone usurping the power of the state to judge guilt and impose punishment.

Posted by: Orin Kerr | Jan 29, 2014 11:36:49 PM

One more thought. Justin writes: "What if, for example, an individual harmed by the acts of a corrupt police official publicizes information about the location of that official in hopes that others will kill or harm her as punishment for her corrupt acts. That strikes me as being quintessential vigilantism."

I tend to agree, but that's because the person has a intent to kill or harm. The individual is trying to act in concert with others to act as a self-appointed judge and jury and impose the equivalent of state punishment -- the death penalty, or at least some other harm. It's the attempted or successful usurpation of the punishment role of the state that makes the act a vigilante act, I think. And I don't think there's any such intent in Carillo's case (at least as far as I know).

Posted by: Orin Kerr | Jan 29, 2014 11:45:20 PM

Orin, I take the point that the "exact justice" formulation I suggested is overly broad. I'm not sure, however, that vigilantism requires an intent to substitute for state action. Vigilantism can act in parallel with state action where, for instance, privately exacted punishment is viewed by the vigilante as more appropriate or more proportionate to the nature of the crime or wrongful act. Rather, it seems to me that the important intention is an intention to punish (and I think I mean this in a purely retributivist sense). If true, Carillo's act might not be vigilantism if her intention was purely to protect others from harm. If, on the other hand, her intention was for her release of this video to result in punishment for her abuser -- either through professional consequences (which were rather foreseeable) or social opprobrium -- than the acts do have a cast of vigilantism to them.

Your second comment addressing my hypothetical suggests to me that the crux of the debate may be whether our conception of vigilantism extends to circumstances where the punishment being imposed by private parties (either singly or in concert) involve illegal conduct. Is that the reason you see the "intent to kill or harm" as crucial?

Interestingly, even if her Carillo's intention was purely protective, she did see herself in a real sense as substituting for state action (although, as I suggested, I don't think that such substitution is either necessary or sufficient for her to be a vigilante). I say that because, of course, state laws related to child abuse are significantly shaped by the state's desire to protect potential future victims. Her actions here would appear to directly stand in place of sex offender registry laws.

Posted by: Justin Pidot | Jan 30, 2014 10:38:59 AM

It seems reasonably straightforward to me that the crucial element of vigilantism is the assertion or exercise of a police power. The vigilante usurps the "legitimate use of force."

Isn't this why we discuss "extrajudicial killing," but not "extrajudicial publishing"?

Posted by: Think Like a 1L | Feb 2, 2014 7:54:26 AM

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