Re-Shaming the Debate: Social Norms, Shame, and Regulation in an Internet Age
Advances in technology communication have dramatically changed the ways in which social norm enforcement is used to constrain behavior. Nowhere is this more powerfully demonstrated than through current events around online shaming and cyber-harassment. Low cost, anonymous, instant, and ubiquitous access to the Internet has removed most — if not all — of the natural checks on shaming. The result is norm enforcement that is indeterminate, uncalibrated, and often tips into behavior punishable in its own right — thus generating a debate over whether the State should intervene to curb online shaming and cyber-harassment.A few years before this change in technology, a group of legal scholars debated just the opposite; discussing the value of harnessing the power of social norm enforcement through shaming by using State shaming sanctions as a more efficient means of criminal punishment. Though the idea was discarded, many of their concerns were prescient and can inform today’s inverted new inquiry: whether the State should create limits on shaming and cyber-bullying. Perhaps more importantly, the debate reintroduces the notion of thinking of shaming within the framework of social norm enforcement, thus clarifying the taxonomy of online shaming, cyber-bullying, and cyber-harassment. This article ties together the current conversation around online shaming and cyber-bullying and cyber-harassment with the larger legal discussion around social norms and shaming sanctions. It argues that the introduction of the Internet has altered the social conditions in which people speak and thus changed the way we perceive and enforce social norms. Accordingly, online shaming is (1) an over-determined punishment with indeterminate social meaning; (2) not a calibrated or measured form of punishment; and (3) of little or questionable accuracy in who and what it punishes. In thus reframing the problem, this article looks at the viability of the legal, normative, private, and State solutions to controlling online shaming. It argues that looking only to State regulation will be an inefficient and ineffective solution. Instead, it proposes using the realizations from the shame debate, successful uses of online norm enforcement, and private remedies to inform the debate around State intervention.
Online Shaming and the Right to Privacy
This paper advances privacy theory through examination of online shaming, focusing in particular on persecution by internet mobs. While shaming is nothing new, the technology used for modern shaming is new and evolving, making it a revealing lens through which to analyze points of analytical friction within and between traditional conceptions of privacy. To that end, this paper first explores the narrative and structure of online shaming, identifying broad categories of shaming of vigilantism, bullying, bigotry and gossiping, which are then used throughout the paper to evaluate different angles to the privacy problems raised. Second, this paper examines shaming through three dominant debates concerning privacy—privacy’s link with dignity, the right to privacy in public places and the social dimension of privacy. Certain themes emerged from this analysis. A common feature of online shaming is public humiliation. A challenge is to differentiate between a humbling (rightly knocking someone down a peg for a social transgression) and a humiliation that is an affront to dignity (wrongly knocking someone down a peg). In addition, the privacy concern of shamed individuals is not necessarily about intrusion on seclusion or revelation of embarrassing information, but rather about the disruption in their ability to continue to participate in online spaces free from attack. The privacy interest therefore becomes more about enabling participation in social spaces, enabling connections and relationships to form, and about enabling identity-making. Public humiliation through shaming can disrupt all of these inviting closer scrutiny concerning how law can be used as an enabling rather than secluding tool.
Tethering the Administrative State: The Case Against Chevron Deference for FCC Jurisdictional Claims
Like many other agencies, the Federal Communications Commission has seen significant regulatory growth under President Obama. But unlike health care, financial reform, and other areas, this growth has come without statutory guidance from Congress. The FCC’s assertion of jurisdiction over broadband service is reminiscent of its earlier attempts to regulate cable and to deregulate telephone service, efforts that courts have viewed skeptically in the absence of specific statutory authorization. But this skepticism is in tension with Chevron, which grants agencies substantial deference to interpret ambiguities in the statutes that they administer. This article argues that Chevron deference should not extend to agency jurisdictional claims, such as the FCC’s claim to authority over broadband. For both constitutional and policy reasons, courts should distinguish between agency action that fills a gap in a statutory scheme and action that defines the outer boundary of that scheme. As the Commission’s net neutrality project winds its way through the judicial system, courts should not allow the agency to define the limits of its own authority, and should instead search closely for a grant of authority from Congress.