Unwilling Avatars: Idealism and Discrimination in Cyberspace

Abstract

I made image upon image for my use ... I made god upon god ... I made the gods less than men for I was a man and they my work. --H.D., Pygmalion ([dagger]) INTRODUCTION: GODS AND MONSTERS Few would deny that cyberspace has a dark side. The of such negative incidents and perhaps even more widely as to the appropriate response to these incidents. (1) On one side are voices calling for increased regulation of the Internet: user codes of conduct, (2) the reform of Section 230 of the 1996 Communications Decency Act (CDA [section] 230), (3) and stricter laws regarding online defamation, threats, and invasions of privacy. (4) On the other side are those who argue that the benefits offered by the free and unregulated exchange of ideas that characterizes the medium of cyberspace far outweigh the harms facilitated by the Internet. (5) The latter view is based on what this Article calls cyberspace idealism-- the view of cyberspace as a Utopian realm of the mind where all can participate equally, free from social, historical, and physical restraints. Though the high-flown rhetoric of early cyberspace idealists (6) may now seem somewhat dated, the liberationist vision at its core maintains its hold on our (increasingly online) collective imagination. This vision is a quasi-Cartesian one: a vision of human identity as fundamentally divided between mind and matter, where matter is limiting and temporal and, as such, in many ways inferior to the mind. For those who hold this vision, cyberspace presents the opportunity to escape physical limitations, both geographic and bodily. The concept of the avatar, broadly conceived, is central to cyberspace idealism. The term is generally used to refer to users' virtual self-representation--from sophisticated graphics to simple pseudonyms--in computer games, virtual reality systems and chat rooms. As used in this Article, an also stands more generally for the unique mode of being that cyberspace allows. The very structure of cyberspace facilitates a wall between a person's identity and their virtual one. The term avatar is Sanskrit for incarnation, and the religious resonance is telling. Cyberspace provides, according to this view, a powerful counter to the world. In life, individuals are constrained by physical limitations, with all the prejudice and division this engenders. In cyberspace, the only limitation is an individual's imagination and creativity. Cyberspace idealism often produces conflicting accounts of the realness of cyberspace. On the one hand, cyberspace is often regarded as more than life--that is, the ability to control the terms of representation makes cyberspace existence more genuine. On the other hand, harms committed in cyberspace are often dismissed as real, as they are by their nature not physical, bodily harms. The way this tension plays out in terms of the law's recommended role in cyberspace can yield schizophrenic results: freedom of speech, for example, in cyberspace is really real and must be vigorously protected; harassment in cyberspace is not really real and thus should not be taken very seriously. This is not to say that cyberspace idealists do not find any cyberspace practices harmful. Many idealists do not object to tort and criminal remedies for defamation or stalking that occurs in cyberspace. The idealist position does, however, treat such harms as aberrations, as occasional malfunctions in an otherwise smoothly operating system. This Article argues that the idealist view sets up a false picture of cyberspace that preempts the proper evaluation of the harms of cyberspace harassment. Specifically, the idealist view fails to recognize--or at least to take seriously--how the same features of cyberspace that amplify the possibilities of individual liberty also amplify the potential for discrimination. Cyberspace idealism drastically downplays the Internet's power to activate discriminatory stereotypes and social scripts. …