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87 Fordham L. Rev. 2317 (2018-2019)
When Law Frees Us to Speak

handle is hein.journals/flr87 and id is 2372 raw text is: WHEN LAW FREES US TO SPEAK Danielle Keats Citron* & Jonathon W. Penney** A central aim of online abuse is to silence victims. That effort is as regrettable as it is successful. In the face of cyberharassment and sexual- privacy invasions, women and marginalized groups retreat from online engagement. These documented chilling effects, however, are not inevitable. Beyond its deterrent function, the law has an equally important expressive role. In this Article, we highlight law's capacity to shape social norms and behavior through education. We focus on a neglected dimension of law's expressive role: its capacity to empower victims to express their truths and engage with others. Our argument is theoretical and empirical. We present new empirical research showing cyberharassment law's salutary effects on women's online expression. We then consider the implications of those findings for victims of sexual-privacy invasions. IN TR O D U C TIO N ................................................................................ 2 3 18 I. THEORY AND PRACTICE .............................................................. 2321 A. Situating Expressive Theory ........................................... 2321 B . In O p era tion ................................................................... 2323 C. Little-Noticed Expressive Effect: Victim Engagement .. 2326 II. LAW'S EMPOWERMENT OF SPEECH ........................................... 2327 A . Exp ressive Theory .......................................................... 2327 B . E mp irical Supp ort .......................................................... 2329 * Morton & Sophia Macht Professor of Law, University of Maryland Francis King Carey School of Law; Visiting Professor of Law, Fordham University School of Law (Fall 2018); Affiliate Fellow, Yale Information Society Project; and Affiliate Scholar, Stanford Center on Internet and Society. ** Research Fellow at the Citizen Lab, University of Toronto; Research Affiliate, Princeton Center for Information Technology Policy; and Research Associate, Civil Servant Project, MIT Media Lab. We are grateful to Jeanmarie Fenrich and Benjamin Zipursky who included us in the planning of the Gender Equality and the First Amendment Symposium in honor of 100 Years of Women at Fordham Law and to Lauren Gorab and the Fordham Law Review, who brilliantly put together the Symposium. We received helpful comments from Holly Jacobs, Mary Anne Franks, Michele Goodwin, Carrie Goldberg, Kate Klonick, Olivier Sylvain, Nabiha Syed, and other Symposium participants. Thanks to the Fordham Law community, Dean Linda Sugin, and Dean Matthew Diller for so kindly welcoming one of us (Citron) to visit for the fall 2018 semester, during the planning of this Symposium. The pioneering work of Holly Jacobs and Mary Anne Franks, evident at the Symposium, is an awe-inspiring illustration of the arguments in this piece. 2317