If a man overhears two women at the local coffee house advocating some point of view he doesn’t like and he then announces out loud that he hopes someone rapes and kills them, the management will toss him out on the street. In such a scenario, patrons will applaud the ejection, and nobody in his right mind will suggest that this asshat’s right of free speech has been infringed. In fact, he is entirely free to find another location patronized by a fraternity of asshats, where they can pontificate on the virtues of rape and murder into the wee hours. But the coffee house owner has the right—even perhaps the responsibility—to bar this individual from ever entering the premises again. And I don’t think anyone would criticize this remedy to protect customers from his kind of harassment or disturbance. But somehow, the calculus is different in cyberspace.
Washington Post tech writer Caitlin Dewey (someone I have sharply criticized for her copyright-related commentary) last week published a sobering account of independent game developer Zoë Quinn’s fight for justice in a criminal harassment claim against ex-boyfriend Eron Gjoni. Quinn is the figure at the center of the widely publicized, “gaming-community” scandal known as Gamergate in which she allegedly cheated on Gjoni with a game critic in trade for a positive review of a game she developed. This allegation was initially published in the form of a vengeful, post-breakup screed written by Gjoni that Dewey describes as, “… a seven-part chronicle of their relationship, complete with annotated chat logs and lurid sexual details, and [Gjoni] promoted the links in a series of forums known for their antipathy toward female and progressive game developers.”
Gjoni’s online tantrum spawned what can best be described as a shitstorm in the gaming world—a digital tornado of harassment, feminism, and the hormonal idiocy of teenage boys. It’s the kind of story that makes a rational person say, “Okay, everybody out of the goddamn pool!” And I don’t really want to wade too deeply into the convoluted particulars of Gamergate itself—enough has been written about it—but the story does appear to provide instructive examples as to why law enforcement may be ill-equipped to address the often-serious problem of online mob harassment and assault.
As Dewey reports, Quinn filed charges against Gjoni in Boston municipal court, and once the judge was made to understand something about the nature of online mobs, Quinn was granted relief in the form of a restraining order that included barring Gjoni from further publishing anything about her. And there’s the rub. Can the courts really enjoin anyone from publishing anything, even when the individual’s hope is to incite a mob response, and even knowing that some portion of that mob could be legitimately dangerous? Not easy.
In a move that ought to be familiar to those of us who follow the netizen playbook on rights, infringements, and responsibilities, Dewey reports that Gjoni took his “case” to the orangutan court of social media, arguing that the clause in his restraining order proscribing his writing publicly about Quinn could be “used to silence activists” (i.e. he played the free speech card). This naturally led to an increase in harassment of Quinn and people close to her as well as seeding an online campaign to raise money for Gjoni’s defense fund. On the one hand, Gjoni is clearly overstating the implications of a single restraining order; but as piggish as his actions may be, he’s not wrong that criminal liability stemming from his actions is problematic.
In short, the point Dewey is emphasizing—and she’s right—is that criminalizing online harassment, particularly inciting a mob response, poses legal challenges that leave victims like Quinn with few remedies. There may be any number of grounds to sue Gjoni in a civil action, but the criminal aspect of his decision to publish his rude tome, even knowing it would trigger mass harassment including assault, is tricky because it does implicate questions of free speech.
Additionally, even gauging the toxicity of the “mob” itself is clouded by a lot of juvenile noise. In a story like this one, in which feminists question sexism in games, the activists are going to provoke a lot underage teens whose parents haven’t taught them that it’s not okay to post “I’ll rape and kill you” online. But law enforcement can offer very little in response to a deluge of nasty-but-benign trash talk. Additionally, any contemporary activist addressing almost any issue must be able to cut through some volume of baiting and trolling, lest the harassment itself become the story rather than whatever conversation the activist is trying to have. It’s just the new reality when everybody—including the knuckle-dragger—has access to a public megaphone.
But where law enforcement may be stymied, private companies are not. As with the lead example of the coffee house, Internet platforms are private property, where the owners have as much latitude to impose codes of conduct as any private property owner in physical space. And it may be time for the mainstream social media platforms of the world—and their users—to realize that they are not the guardians of free speech they presume to be; free speech will be just fine with or without them. These platforms, including gamer forums, are just private locations, where the management may determine when a customer is abusing his membership. For instance, a user who writes, “I’m going to rape you to death” might be a good place to start. Why kicking a guy off Reddit for doing that when we would commend the same remedy in the local coffee house is a contradiction yet to be answered.