Oct
03

To Live And Die, On-Line Edition

Tyler Clementi's death has provoked a predictable storm of controversy about on-line rules, civility and standards. I suppose the discussion is inevitable, but it worries me. Moral panic generally yields bad law. The desire to act in response to great grief and sorrow often produces an over-reaction with crippling consequences. Let's not forget that the Internet did not push Tyler Clementi off the George Washington Bridge. Mr. Clementi jumped.

I am not attempting to minimize the role that the tortious, or twisted, behavior of others played in driving Mr. Clementi to suicide's door. It was wrong for his roommate at Rutger's University to secretly video Mr. Clementi's intimate moments with another male and then to post them online for the world to see. First-year law students recognize this conduct for what it is: a breach of privacy by publicizing private facts. It was a particularly ugly form of outing Mr. Clementi. New Jersey has already criminalized this tort, apparently. Beware the webcam.

Cyberullying and the use of the Internet to ridicule and to shame is but the latest, and perhaps, most effective tool at the disposal of those who thrive on causing pain to others. Hazing, bullying, intolerance for the outsider are not new social phenomenon: It is simply that the Internet makes thuggery so much easier now than it ever was. A reputation can be sullied at the touch of a key stroke: harmful words and images can flash worldwide. The Internet, for all its use as a means of sharing useful information, also thrives on snark and hate. Is there a way to separate the wheat from the chaffe?

More rules, user agreements, filters, the creation of an administrative regime with broad regulatory power is one answer. Given the imperatives of the herd, I suspect it is the inevitable answer. But before we succumb to the instinct to impose conformity, a word of caution.

Every community develops norms and rules of conduct. These rules can take the form of written laws, or they can remain informal, but no less real. A rule-breaker can be arrested or shunned: both are sanctions imposed on the heterodox by those with the power to set norms for others. How these rules come to be and how they change are some of the grandest themes of our intellectual history. But this history teaches an important lesson: beware orthodoxy.

Although there may never have existed a state of nature, the notion is a useful device for understanding the mysterious character of social cooperation. How is it that strangers come to tolerate being in one another's presence? What makes society possible?

The social contract tradition posits that individuals consent to leave the state of nature, where they are all more or less free to do as they please, to form societies and then states for the sake of security. In other words, folks trade freedom for security. Strangers become friends to one another based on consent in the contract tradition. To be a member of society is to be a person bound by group norms; outsides are free to disregard those norms, but they also have no claim to the benefits of group membership.

In groups less august that those of citizens of a state, there are still subtle forces at work policing the boundaries between those "in" the group and those "out" of the group. Class and status become means of policing the boundaries of a group. The pressue to conform, to toe the right line or lines, to be orthodox is another means of policing group membership. The force of ridicule, shaming, shunning, bullying, even cyberbullying, becomes means to cementing group ties. Every group requires both members and non-members to cohere. Hence, the inevitable character of the tension between the orthodox and heterodox.

The Internet is but the latest battle ground for the struggle between insiders and outsiders: It both creates its own peculiar forms of conformity, and it serves as a tool in the more traditional status conflicts that existed in the pre-digital era. What puzzles me is the power the Internet has acquired. As Malcolm Gladwell pointed out in a recent piece in The New Yorker, the Internet thrives of weak ties. Most of us never meet our on-line friends and followers: the sort of real and sustaining relationships that make social change possible, Gladwell argues, requires more than Tweeter, Facebook and the social network media. Put prosaically, real friends don't byte.

Mr. Clementi's suicide is a sobering reminder of how fragile the psyche of a young person can be. Wanton publication of private facts can devastate a person still trying to decide what face to show to the world. It takes a long time to create a mature adult capable of standing on his or her own two feet and willing to face down a critic with a shrug. The siren song of belonging plays powerfully on the Internet.

I keep wanting to remind people that this is just the Internet. There will always be cliques. You can never be all things to all people. One of the most liberating decisions a person can make is deciding what groups to avoid. The Internet, like any other random collection of people, consists of persons striving for power, recognition and control. Yet it is always possible to walk away from another person's drama, to refuse to be a prop in another's power play. The benefit of the Internet and the weak ties it fosters is that walking away is easy. Some of the best decisions I have ever made online are decisions to stop reading what I will refer to as the clamoring class, the trend-setting policemen of Internet atwitter and abuzz to tell the rest of how we should behave, how we should write, how we should approach the task of communicating online and elsewere. 

I wish that Mr. Clementi had simply walked away from the clamoring nitwits who sought tp humiliate him. Mr. Clementi traded his power for the regard of a herd that feeds on the weakness of others. Perhaps that is the way it will always be. Whenever ten people get together and agree on standards, they are sure to find and punish the eleventh man who refuses to bend a knee. We will not honor the loss of Mr. Clementi's life by insisting that the Internet be made safe for all. We'll simply create a new form of orthodoxy, and find yet another way to punish those who refuse to color with the lines.

I am sorry Mr. Clementi ended his life. I am sorrier still that he let others so far into his head that he regarded his opinion of him more than his own life and his great and creative talent.

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About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

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I believe that the state is a necessary fiction and that failing to combat it is the first step toward tyranny.
– Norm Pattis

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Nothing in this blog should be considered legal advice about your case. You need a lawyer who understands the context of your life and situation. What are offered here are merely suggested lines of inquiry you may explore with your lawyer.

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