Audience-Oriented Wrongs

As I mentioned in my last post, one of the things that I've been thinking about lately is how law and scholarship are beginning to pay more attention to the importance of audience in various contexts.  One interesting student note I encountered while researching this article identifies a category of "audience-oriented crimes," in which the presence of the audience profoundly affects the wrong, and thus participation through spectating may attract criminal liability or other penalties.  For these audience-oriented wrongs, the "presence and reaction of the spectators" is a "motivating factor" that encourages the underlying activity.   The author argues that drag racing and dog-fighting already fall into this category, and that gang rape or group sexual assaults should be included as well.

Cyberbullying arguably also belongs in this category of audience-oriented wrongs, and at least one Canadian jurisdiction appears poised to address it as such.  In the province of Alberta, new legislation dictates that students must "refrain from, report, and not tolerate bullying or bullying behavior directed towards others in the school, whether or not it occurs within the school building, during the school day or by electronic means."  Failure to perform these obligations may result in penalities like suspension or expulsion.

Currently, the "duty to report" piece of this legislation has received much critical attention, as has the fact that the legislation clearly extends to things that happen off school grounds and outside of school hours.  But the duty to "not tolerate bullying" is pretty remarkable, too.  Arguably, spectating is a form of tolerating, meaning that in addition to a duty to report, the legislation may also target the wrong of watching the bullying.  The Note explains that although spectating and not reporting are related, they are also distinct: "[t]hough it is wrong to fail to [report], the greater wrong is the decision to watch, and through that approving presence, encourage."

Two aspects of the encouraging presence of spectators in the cyberbullying context are worth mentioning here.  First,  in drag racing, dog fighting, and gang rape, the audience is a physically present group.  Theoretically, this makes enforcement of anti-spectating laws fairly simple.  In the cyberbullying context, however, the audience is most likely going to be a series of different individuals in cyberspace, viewing at different times and from different places.  This makes enforcement a more challenging proposition;  cyberbullying is difficult to envision as an "event," which law enforcement can ruin by attending and breaking-up in the way it can a drag race or a dog fight. Second, the size of the online audience as not limited to just the particular people present at a particular place and particular point in time, but instead extending to encompass anyone on the internet during the length of time something is easily accessible, is both part of what makes the harm of cyberbullying so egregious, and part of what makes the responsibility for it seem more diffuse and harder to police.

It's not clear yet how the Alberta legislation will play out, but given that the law in many jurisdictions is in a constant state of flux over how best to address cyberbullying, we may see similar measures crop up in other jurisdictions.  I suspect given the differences between the audience in this context and other audience-oriented wrongs, this kind of legislation will have little real-world affect on the relational and cultural dynamics that contribute to cyberbullying among youths, but recognize that it has expressive value nevertheless.

Comments

[Alfred Brophy]

Really interesting work, Sarah. I haven't thought much about this, at all. But I can think of two examples of audience-oriented crime that might be related to this. The first are the tar and feather mobs of the Revolutionary era (I guess I'm thinking about this because I pulled Pauline Maier's From Resistance to Revolution off the shelf to spend a little time thinking about how when I heard she'd passed away a few weeks back.) I guess the mob mentality amplified the desire to tar and feather. But I'm not sure whether there was ever criminal liability for the audience. I'd be curious to know that. Seems like there would have been a good incentive to punish those who witnessed as well as those who participated actively in the crime as a deterrent. (And now that I'm thinking about this, I think these kinds of questions came up in New York's anti-rent movement in the 1830s/1840s. Need to pull Chuck McCury's outstanding book off the shelf to check how/if that was handled.)

As to the presence of witnesses who maybe could have intervened but didn't, in the twentieth century some states had anti-lynching legislation that made municipalities/counties liable for lynchings in their jurisdiction. The idea was to impose liability without fault to encourage local officials to do what they could to prevent lynchings. I'm thinking that's a somewhat stronger version of the spectator liability that you refer to. That is, even if local officials weren't spectators, the local government had civil liability.

[Howard Wasserman]

A rejected provision of what became the Ku Klux Klan Act of 1871 (of which § 1983 was a part) would have imposed similar obligations on local officials.

In the U.S., much of what is often tagged as "bullying" is (at least arguably) protected by the First Amendment, outside the school context. So there would be a nice question whether you could punish someone for hearing and failing to report speech where the speech itself is not punishable.

[Sarah Swan]

Al, Howard - thanks for your comments! I hadn't thought about those examples in this context...intriguing!

[Michelle Meyer]

Hi Sarah -- Of possible interest: "special duty" to drivers on the road of A who texts B when A knows or "has special reason to know" that B will view that text while driving.

http://www.nj.com/essex/index.ssf/2013/08/state_appeals_court_says_texters_can_be_liable_for_distracting_drivers_but_tosses_out_claim_againt_r.html

[Sarah Swan]

Michelle - Thanks for sending this along! Remarkable on so many levels...