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Re-Shaming the Debate: Social Norms, Shame, and Regulation in an Internet Age

37 Pages Posted: 3 Aug 2015 Last revised: 18 May 2016

Kate Klonick

Yale University, Law School, Students

Date Written: August 1, 2015

Abstract

Advances in technology 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 and cyber-bullying and cyber-harassment with the larger legal discussion around 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 thus reframing the 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.

Keywords: shame, shaming, social norms, norms, norm enforcement, cyber-harassment, cyber-bullying, internet, online shaming, shame debate, shame sanctions

Suggested Citation

Klonick, Kate, Re-Shaming the Debate: Social Norms, Shame, and Regulation in an Internet Age (August 1, 2015). Maryland Law Review, Vol. 75, No. 4 (2016).. Available at SSRN: https://ssrn.com/abstract=2638693 or http://dx.doi.org/10.2139/ssrn.2638693

Kate Klonick (Contact Author)

Yale University, Law School, Students ( email )

127 Wall St
New Haven, CT 06511

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