Maryland Law Review
Advances in technological 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, cyber bullying, and cyber harassment with the larger legal discussion on 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 reframing this 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.