I made image upon image for my use ... I made god upon god ... I made the gods less than men for I was a man and they my work. --H.D., Pygmalion ([dagger])
INTRODUCTION: GODS AND MONSTERS
Few would deny that cyberspace has a dark side. The of such negative incidents and perhaps even more widely as to the appropriate response to these incidents. (1) On one side are voices calling for increased regulation of the Internet: user codes of conduct, (2) the reform of Section 230 of the 1996 Communications Decency Act (CDA [section] 230), (3) and stricter laws regarding online defamation, threats, and invasions of privacy. (4) On the other side are those who argue that the benefits offered by the free and unregulated exchange of ideas that characterizes the medium of cyberspace far outweigh the harms facilitated by the Internet. (5)
The latter view is based on what this Article calls cyberspace idealism-- the view of cyberspace as a Utopian realm of the mind where all can participate equally, free from social, historical, and physical restraints. Though the high-flown rhetoric of early cyberspace idealists (6) may now seem somewhat dated, the liberationist vision at its core maintains its hold on our (increasingly online) collective imagination. This vision is a quasi-Cartesian one: a vision of human identity as fundamentally divided between mind and matter, where matter is limiting and temporal and, as such, in many ways inferior to the mind. For those who hold this vision, cyberspace presents the opportunity to escape physical limitations, both geographic and bodily.
The concept of the avatar, broadly conceived, is central to cyberspace idealism. The term is generally used to refer to users' virtual self-representation--from sophisticated graphics to simple pseudonyms--in computer games, virtual reality systems and chat rooms. As used in this Article, an avatar also stands more generally for the unique mode of being that cyberspace allows. The very structure of cyberspace facilitates a wall between a person's "real" identity and their virtual one. The term "avatar" is Sanskrit for "incarnation," and the religious resonance is telling. Cyberspace provides, according to this view, a powerful counter to the real world. In real life, individuals are constrained by physical limitations, with all the prejudice and division this engenders. In cyberspace, the only limitation is an individual's imagination and creativity.
Cyberspace idealism often produces conflicting accounts of the "realness" of cyberspace. On the one hand, cyberspace is often regarded as more real than real life--that is, the ability to control the terms of representation makes cyberspace existence more genuine. On the other hand, harms committed in cyberspace are often dismissed as "not really real," as they are by their nature not physical, bodily harms. The way this tension plays out in terms of the law's recommended role in cyberspace can yield schizophrenic results: freedom of speech, for example, in cyberspace is "really real" and must be vigorously protected; harassment in cyberspace is not "really real" and thus should not be taken very seriously.
This is not to say that cyberspace idealists do not find any cyberspace practices harmful. Many idealists do not object to tort and criminal remedies for defamation or stalking that occurs in cyberspace. The idealist position does, however, treat such harms as aberrations, as occasional malfunctions in an otherwise smoothly operating system. This Article argues that the idealist view sets up a false picture of cyberspace that preempts the proper evaluation of the harms of cyberspace harassment. Specifically, the idealist view fails to recognize--or at least to take seriously--how the same features of cyberspace that amplify the possibilities of individual liberty also amplify the potential for discrimination. Cyberspace idealism drastically downplays the Internet's power to activate discriminatory stereotypes and social scripts.
This Article focuses on the particular discriminatory phenomenon of the unwilling avatar. In stark contrast to the way users exert control over their online identities, the creation of unwilling avatars involves invoking individuals' real bodies for the purposes of threatening, defaming, or sexualizing them without consent. Sometimes the creation of unwilling avatars takes a very literal form: for example, hacking into the account of a gamer and using her avatar as though it were your own, or creating a false profile of a real person on a social networking site. Other examples of unwilling avatars are more figurative. For example, women have been targeted for "revenge porn," a practice where ex-boyfriends and husbands post to the web sexually explicit photographs and videos of them without their consent. Another example is the case of Kathy Sierra, who was attacked by anonymous bloggers and posters with manipulated photographs and threats of death and sexual violence. Female law school students also become unwilling avatars when they are targeted by graphic and violent sexual threads at message boards such as AutoAdmit.com. (7) In most cases of cyberspace harassment, the perpetrators use pseudonyms (8) while identifying their targets not only by name but often also with private information such as home addresses and social security numbers. This informational asymmetry further aggravates the inequality resulting from cyberspace harassment.
The unwilling avatars phenomenon affects the way that many different groups interact with cyberspace, among them racial and sexual minorities. This Article focuses specifically on the way this phenomenon affects women, not because the impact on other affected groups is less important or interesting, but because the gendered dimension of harassment and abusive behavior online is worthy of independent study. (9) Cyber harassment affects women disproportionately, both in terms of frequency and in terms of impact. Moreover, there is a particularly poignant irony in the nonconsensual sexualized embodiment of women in cyberspace. As will be discussed in more detail below, cyberspace can present particularly compelling opportunities for women because they feel the constraints of physical vulnerability, especially sexual vulnerability, more acutely than men. In that case, the extent to which this physical vulnerability is re-imposed upon them--principally by men--in cyberspace is truly disheartening. If cyberspace harassment makes many women feel less safe online than they do in real life, and more exposed and vulnerable to sexual aggression both on and offline, this undermines the idealistic promise of cyberspace in a significant way. The volume and viciousness of cyber-attacks--especially sexualized attacks--on women by men suggests that cyberspace cannot be thought of as a place where, on balance, women and men can participate equally. Rather, it is a place where existing gender inequalities are amplified and entrenched.
This Article is concerned with gender discrimination as an interference with liberty and equality. It advocates for an expansive notion of liberty, one that includes the freedom to think and act and develop one's life as one wishes, without political or social restraints, except where that liberty would harm others. (10) Though John Stuart Mill is invoked frequently in debates concerning the relationship between law and liberty, his insight that social restraints on liberty are often more pernicious and difficult to challenge than political ones is often forgotten. This insight is key to any complete analysis of discrimination's effects on liberty. Restraints on liberty can manifest in the form of formal legal restrictions, as they did in laws permitting slavery, but they can also manifest as social restrictions, as they do in cross-burnings and racist propaganda. An African-American man who could not enter a restaurant that had a "whites only" sign in the window experienced a once-legally permissible infringement on his liberty; an African-American man who avoids the same restaurant because of the racist jeers and taunts of other customers experiences a social infringement on his liberty. This is not to collapse the two experiences into one--for there are important differences between them--but merely to underscore the point that infringements on liberty can occur both through legal-political means and social means.
A world in which members of certain groups avoid places, professions, opportunities, and experiences because they fear de facto, rather than de jure, discrimination--based not on their ideas but on their bodies (e.g. because they are women, or gay, or black)--is not a world that maximizes liberty. (11) The virtual world has not only reproduced the various forms of discrimination that exist in the physical world, but has allowed them to flourish in ways that would not be possible in the physical world. Again, one could use any number of examples, racism (12) and homophobia among them, to illustrate this principle, but this Article deals specifically with sexism in cyberspace. Women shut down their blogs, avoid websites they formerly frequented, take down social networking profiles, refrain from engaging in online political commentary, and choose not to maintain potentially lucrative or personally rewarding online presences due to cyberspace harassment. (13) The harms they experience also spill over into their offline lives: women have dropped out of school, changed jobs, moved cities, gone into hiding, experienced mental breakdowns, and, in extreme cases, committed suicide due to cyberspace harassment. (14) The harassment that they experience is promulgated by users who overwhelmingly self-identify as male, though most remain anonymous beyond that, and is overwhelmingly characterized by obscene, sexually violent, sexist language and behavior.
When cyberspace idealists argue against increased legal...