Public shaming is an effective tool of social control, but vengeful mobs also highlight the reason we invented the institution of law. (More)

Public Shaming, Part III: Can We Tame Shame? (Non-Cynical Saturday)

This week Morning Feature considers public shaming as an extralegal tool of social control. Thursday we began with the response to recent Religious Freedom Restoration Acts and the closing of Memories Pizza in Indiana. Yesterday we saw the story of Adria Richards, whose tweet reporting off-color jokes at a tech conference got a man fired but left her homeless and unemployed. Today we conclude with whether invasion of privacy law can be applied to public shaming in our digital age.

“What, exactly, their notion of a fair punishment is”

In his article at The Atlantic about Memories Pizza and “a big, digital mob,” Conor Friedersdorf opens with the first of several factual errors:

What do white evangelicals, Muslims, Mormons, blacks, conservative Republicans, and immigrants from Africa, South America, and Central America all have in common? They’re less likely to support gay marriage than the average Californian.

In fact a 2014 Pew Research survey found whites are far more likely than blacks or Hispanics to say businesses should be allowed to refuse to provide services to LGBT weddings. Among religious groups, the survey found only white evangelical protestants demanded such ‘religious’ freedom in significant numbers (71%). White mainline protestants and white Catholics were evenly split, while substantial majorities of both black protestants (59%) and Hispanic Catholics (64%) said wedding businesses should be required to provide services to LGBTs.

Friedersdorf also repeats the right wing meme that Memories Pizza “discriminated against nobody,” on the theory that no LGBT couple had yet asked them to cater a wedding. But telling a reporter, on the record, that they would not cater LGBT weddings was no different than putting a sign to that effect in the pizzeria’s front window. Had the O’Connors put up such a sign, would the right still argue there was no discrimination … unless and until an LGBT couple came in and were turned away?

Still, Friedersdorf asks an important question near the end of his essay:

The question I’d ask those who want to use non-state means to punish mom-and-pop businesses that decline to cater gay weddings is what, exactly, their notion of a fair punishment is. Nearly every supporter of gay marriage is on board with efforts to publicly tell people that their position is wrongheaded–I’ve participated in efforts like that for years and insist that respectful critique and persuasion is more effective than shaming. What about other approaches? If their Yelp rating goes down by a star does the punishment fit the “crime”? Is there a financial loss at which social pressure goes from appropriate to too much? How about putting them out of business? Digital mobs insulting them and their children? Email and phone threats from anonymous Internet users? If you think that any of those go too far have you spoken up against the people using those tactics?

“You’re the No. 1 worldwide trend on Twitter right now”

Justine Sacco got that text from her best friend as her plane was taxiing to the gate in Cape Town, South Africa. Before her flight left London, she had tweeted an ill-considered joke to her 170 followers:

Going to Africa. Hope I don’t get AIDS. Just kidding. I’m white!

But Sam Biddle was tipped to the tweet and he posted it at Gawker’s ValleyWag tech blog. The story went viral and, while Sacco slept on the 11-hour flight, her life was torn apart:

The furor over Sacco’s tweet had become not just an ideological crusade against her perceived bigotry but also a form of idle entertainment. Her complete ignorance of her predicament for those 11 hours lent the episode both dramatic irony and a pleasing narrative arc. As Sacco’s flight traversed the length of Africa, a hashtag began to trend worldwide: #HasJustineLandedYet. “Seriously. I just want to go home to go to bed, but everyone at the bar is SO into #HasJustineLandedYet. Can’t look away. Can’t leave” and “Right, is there no one in Cape Town going to the airport to tweet her arrival? Come on, Twitter! I’d like pictures #HasJustineLandedYet.”

She was the Public Relations director of a major tech firm, and she’d sent the tweet publicly. But almost none of the millions of people who read and responded to her tweet knew anything about her:

“To me it was so insane of a comment for anyone to make,” she [told author Jon Ronson]. “I thought there was no way that anyone could possibly think it was literal.” (She would later write me an email to elaborate on this point. “Unfortunately, I am not a character on South Park or a comedian, so I had no business commenting on the epidemic in such a politically incorrect manner on a public platform,” she wrote. “To put it simply, I wasn’t trying to raise awareness of AIDS or piss off the world or ruin my life. Living in America puts us in a bit of a bubble when it comes to what is going on in the third world. I was making fun of that bubble.”)

Regardless, by the time she landed she had been fired and public shaming had claimed another scalp.

“I didn’t think much about Justine Sacco after that, either”

Having fired up that mob, Sam Biddle figured he was done with it:

It was a natural post. Twitter disasters are the quickest source of outrage, and outrage is traffic. I didn’t think about whether or not I might be ruining Sacco’s life. The tweet was a bad tweet, and seeing it would make people feel good and angry – a simple social and emotional transaction that had happened before and would happen again and again. The minimal post set off a 48-hour paroxysm of fury, an eruption of internet vindictiveness.

Sacco was in the air, unable to realize what she’d done or apologize it, and as the tweet garnered retweets and faves and the first drafts of think pieces, eager observers tracked her flight across the Atlantic. A hashtag trended: #HasJustineLandedYet. Several hours later she emerged into an unfathomable modern multimedia hell-nightmare and was quickly and summarily fired.

Nearly as quickly, the righteous Twitter mob moved on.[…]

Sacco-related hashtags went dark; blog posts were pushed down the page. The “Justine Sacco” of headlines and links faded into a blur with those racist 12 Years a Slave posters. Remember those? Of course not – and I didn’t think much about Justine Sacco after that, either.

But six months later he got an email, with the subject line “Justine Sacco here.” Biddle had no idea what she wanted, but he cautiously agreed to meet for drinks:

Not long after, the two of us shared dinner and margaritas, and I looked up at a face I’d only ever seen on a screen, tweeted and repeated by people who hated that face. I’ve never been star-struck, but my stomach knotted. Justine Sacco had a face that wasn’t made up of pixels.

And, as it turned out, Justine Sacco is not a racist monster. She is a kind and canny woman who threw back cocktails, ate delicately, and spoke expertly about software. She was friendly, very funny, instantly relatable, and very plainly not a cruel sicko. We talked about college, jobs, home, family, and work—she’d recently landed on her feet as the communications boss for a small New York startup, and seemed to be happily rebuilding her career.
[…]
Maybe it was the third drink, or months of piling, compressed guilt, but midway through our meal I had to say sorry. An apology to Justine Sacco had been itching at my throat from the moment I saw her. I was afraid to say it – because who knows what else I should be sorry for? – but the itching was worse.

So I did it: I said I was sorry posting her tweet had teleported her into a world of media scrutiny and misery. I’d tried not admitting even to myself that I was sorry, toying with various exculpatory principles like a child’s wooden blocks: posting her tweet had been media criticism, industry watchdoggery, social justice, karma.

I’d managed to half-convince myself what I’d done was right, but then I saw her face. How often do you get to say you’re sorry to someone you ruined on the internet? I was in a daze.
[…]
Sacco was not depressed, or even slightly bitter, and said she bore no resentment towards me at all. She’d only wanted to meet up, she explained, because I owed it to her. I should get to know her before ever writing about her again. There was no catch, no setup, no tricks – she just wanted me to consider her a person, and not a meme.

How could someone who tweeted something so stupid be so emotionally perfected? How could she not hate me? She was serene, decent, and despite the continued existence of Twitter, hopeful: “Someday you’ll Google me and my LinkedIn will be the first thing that pops up.” That part was heartbreaking.

“A reasonable expectation of privacy”

Did Sacco deserve to be fired and humiliated for a misunderstood joke? What about the threats of violence that she received, a seemingly inevitable part of internet shaming? As Friedersdorf asked: what, exactly, is a fair punishment?

Public shaming has other problems as well. The internet got Sacco’s scalp, and NBC Nightly News anchor Brian Williams’. But Bill O’Reilly has made comments far more provocative than Sacco’s tweet and misstated facts at least as egregiously as Williams, and Fox News stands buy him. Public shaming punishes only those who can feel ashamed.

And it doesn’t punish them equally. Recall that ‘Hank,’ the man who joked about “forking” and “big dongles,” quickly found another job. But Adria Richards, who tweeted her complaint about the jokes, was also targeted by a vengeful mob and might never work in the tech field again. Public shaming punishes most severely those who lack the status and resources to weather the storm.

Finally, the target of a online vendetta gets no due process. Guilt is decided and the sentence begun, often before the accused has any chance to respond. The police might step in against the worst offenders, as they have with the threats against the owners of Memories Pizza. But there was no action against those who threatened Justine Sacco, or Adria Richards, or countless others, and the U.S. Supreme Court will soon decide when an online rant becomes a criminal threat.

The irony is that while conservatives this week complained about the public shaming of Memories Pizza, and some of the responses were abusive, those very complaints highlight the reason societies create laws. However obscure and confusing our laws (and they sometimes are), however cumbersome and exhausting the process (and it can be), however uneven the enforcement (and it sometimes is) … the law is clearer, fairer, and less arbitrary than public outrage.

The law is also more diligent. Soon another florist, baker, or restauranteur will refuse to serve LGBT weddings, or perhaps refuse serve or hire LGBTs at all. And unless that happens in a municipality or state that protects LGBTs from discrimination, there will be no legal remedy. But how many times will thousands of voices rise up, as they did against Memories Pizza, before people lose interest and move on to the next trending outrage?

Just as we prefer criminal courts to blood feuds, shouldn’t we prefer civil sanctions against discrimination to the haphazard and often abusive responses that happen when we “let the market sort it out?”

And shouldn’t we apply invasion of privacy law to those responses? Justine Sacco sent her tweet with her 170 Twitter followers in mind, people she believed would understand her meaning. Republishing her tweet to a mass audience – without even a pretense of actual reporting – portrayed her in a false light.

Publishing Adria Richards’ home address and contact information – an all-too-common form of internet vengeance known as doxing – clearly meets the legal standards for intrusion on a “reasonable expectation of privacy.”

Conservatives and libertarians complain about Big Government, but the alternative is even more dangerous: lives torn apart in a click-and-burn declaration of self-righteous indignation – and for the entertainment value of the public spectacle – rather than in any real search for justice.

We can do better, and doing better is the defining element of civil society.

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Happy Saturday!