Excerpted From: Lili Levi, Racialized, Judaized, Feminized: Identity-based Attacks on the Press, 20 First Amendment Law Review 147 (2022) (294 Footnotes) (Full Document)


LiliLeviInvocations of lynching, gas chambers and misogynistic torture have been widely deployed in attacks on American journalists at least since Donald Trump's presidential candidacy in 2016 and continue today. The logo “Rope. Tree. Journalist. Some assembly required.” on a MAGA supporter's t-shirt at a 2016 Trump rally--was not an accidental and idiosyncratic association destined to fade away with electoral change. In November 2020, an African American television anchor was threatened with lynching after the presidential election. Rioters at the January 6, 2021 attempted coup at the Capitol fashioned a noose out of a journalist's camera cord and hung it on a tree. The online world expands and amplifies such racialized attacks. Evidencing its focus on identity, online harassment also reveals chilling patterns of Judaized hate and violent misogyny. Jewish journalists receive messages with photoshopped images of their faces in Nazi gas chambers, while tweeters comment “Why do Jews get so triggered when we mention ovens?” Women journalists fear opening Twitter lest they face leering sexism, misogyny and promises to rape, dismember and kill them. These examples are far from exceptional. They reflect the traditional preoccupations and political agendas of white supremacist groups--hatred principally focused on African Americans, Jews, and assertive women expressed against the “enemy” of the American people. Online attacks today thus embrace identity-focused vitriol with two goals: to terrify and silence the targeted reporters(while sending a chilling message to journalists from other marginalized groups), and to undermine the press as a whole. Such racialized, Judaized and misogynistic online harassment has particularly harmful effects, not only for the targeted journalists but also for the press as an institution with a critical role in democracy. This issue deserves a central place in democratic discourse both because of its human toll and its socio-political consequences.

Unsurprisingly, identity-based attacks on the press are happening at the very moment when news organizations are beginning to focus on their own discriminatory pasts, attempting to diversify the newsroom, and responding to modern calls for increased self-consciousness about the racial impacts of the structures and processes of their profession. The goals of these techniques of press harassment are obviously to terrify and silence the reporters, influence the content of press coverage, deter diverse voices in journalism, chill newsgathering, and exacerbate doubts about the press in the public mind.

Online harassment has been weaponized by the ease of collective action online, Internet virality strategies, “humorous” presidential invitations to do violence to the media, the memetic turn that makes “ironic racism” hard to identify and news organizations' affirmative requirement of online engagement by reporters. But the threat of online harassment is also amplified by the worldwide increase in physical danger for reporters. Today, journalists must fear not only the onslaught of online attacks, but increased threats of physical violence--even by police charged with protecting them. Journalists identifying as racial or ethnic minorities and nonmale journalists in particular are faced daily with the recognition that they are neither psychologically nor physically safe.

Confronting the combination of online and physical violence has doubtless alarmed reporters, affected their personal and professional routines, hampered them in the practice of journalism, generated problems and division in the newsroom--and has even led to departure from the profession.

But the impact goes beyond individual self-censorship. Identity-based online harassment of reporters otherizes not only the individual recipients but is designed to sideline and undermine the entire press project. Inter alia, talent drain from the profession, a negative effect on news organizations' attempts to improve their own diversity, and self-censorship in coverage are all likely to increase existing public distrust in the press. The predictable self-censorship in response to harassment will influence, at least to some degree, what is covered, by whom, and how. To the extent that this self-censorship principally affects reporting seeking to diversify coverage and make up for news organization failures in the past, it portends a particularly regressive effect on the evolution of the press into the future.

The type of otherization based on entrenched biases may be particularly difficult to dislodge, both for its individual targets and for public perceptions of the press. This may be especially likely at times of political polarization. Identity-based harassment can end up normalizing abuse as it increases in scale. It can also invite new adherents to white supremacist ideas. When the terms of attack associate the press with otherwise socially embedded biases, they may be more subconsciously effective at least for some publics than merely abstract critiques of the “fake news” media. Therefore, the associations may be more difficult to counteract and uproot through traditional methods of building institutional trust.

This suggests that the rise of identity-focused attacks on journalists should also be assessed in its broader political context. The Trump administration and its allies sought to undermine the effectiveness, credibility and legitimacy of the press in a number of ways. First came presidential candidate Donald Trump's promises to reduce legal protections for journalistic activity. Then came former President Trump's attack on the “fake news” mainstream press during his term. Finally, the repeated characterization of the media as the “enemy” of the American public foreseeably invited targeted attacks on journalists engaging in newsgathering and reporting.

The overall strategy appeared designed to hobble journalism at critical inflection points in its entire lifecycle. Thus, the ceaseless refrain of “fake news” would undermine public faith in press output--what the press publishes. Critiques of libel law would seek to roll back press-protective judicial outcomes. And identity-based verbal violence would seek to intimidate press workers in order to undercut and paralyze the journalistic process (therefore also casting doubt on the credibility of media output.) From this vantage point, online harassment can be seen as the third leg of a three-pronged delegitimization program targeting different temporal moments in the journalistic process. Success in this tripartite strategy could undermine the press's constitutional function and further diminish the public's belief in the legitimacy of the mainstream institutional media.

When seen holistically--as a long-range strategy of undermining and decentering the press--there is reason to believe that the three-pronged approach has had some troubling success. Doctrinally, courts are beginning to question the stability of press-protective precedents. The ceaseless drumbeat of Trump's “fake news” claims appears to have reinforced previously-declining public faith in the press. And even though the election of President Biden put the brakes on official Executive branch press-bashing for purposes of delegitimization, it did not put a stop to the parallel (albeit sometimes more decentralized) strategies of journalist harassment. If the journalists gathering the news to tell the mainstream media's stories are threatened and silenced, or even if campaigns of harassment trigger responsive changes to the press' traditional routines and practices, the goal of hamstringing the press will have been significantly advanced.

Having identified harassment of journalists as a particularly disruptive strategy then raises the question of what should be done in response. This Article makes recommendations aimed at news organizations, journalism schools, reporters and journalist-representative organizations, scholars, and social media companies. It does so because each can play an important and interlocking positive role. It should become clear to all participants that campaigns of online intimidation and harassment against one reporter are actually campaigns against all reporters and require a united front in response.

The Article recognizes that at least five contextual complexities attend any attempts to craft corrective recommendations. Mindful of those concerns, the Article first argues that news organizations must have obligations to their employees to protect them both from physical violence and online abuse. Racial, ethnic, religious and misogynistic harassment online is violence of a different sort and calling for reportorial “grit” or a “thick skin” does not satisfy the news organizations' obligations-- which should be recognized, if not yet wholly and extensively in law, then in professional practice. There are existing legal protections against workplace harassment and discrimination, anti-cyberbullying statutes, privacy-protecting torts and good arguments for extending fiduciary duties to employees, but formal interpretations, limited footprints, and the possibility of contracting around certain obligations may make the existing legal tools insufficiently robust protections. While we await further reporter-protective developments in legal doctrine, professional norms and institutional self-interest can and should be read to impose such obligations.

Without presuming to be overly directive, the Article recommends well-designed protocols applicable across the board for surfacing and analyzing such expressive violence, appropriate abuse-report processes, changes made to the organizations' social media presence policies, attention paid to security training, resources devoted to mental health in the newsroom, and newsroom diversification and culture change. News organizations must also recognize, as they engage in their expressed goals of expanding diversity in their ranks, that merely hiring reporters who add to newsroom racial, ethnic or gender diversity is not enough. Resources must be spent on creating collaborative and inclusive newsrooms in which all reporters feel supported in responding in a variety of ways to the various forms of intimidation to which they are now subjected. And without giving white supremacists another platform, information about these campaigns of intimidation and harassment should be publicized, shared with scholars for study, brought to the attention of the social media platforms on which they occur (and the public), and serve as the subject of government lobbying.

As for journalism schools, the Article recommends that specific attention be paid to the phenomenon of online harassment of reporters as a distinct tool in the contemporary attacks on the legitimacy of the press globally. Reporters as well--and those who represent them, such as unions, press organizations, media lawyers and law school-based media law clinics--should create networks to share information about these attempts to intimidate, assess legal options, offer mentorship, and provide resources to freelancers and news organizations too financially challenged to respond adequately to the current landscape of threat. This is particularly important for freelance news workers who do not have other access to institutional resources.

Social media as well--over which much online harassment is generated and transmitted--must consider ameliorative suggestions as to tech tools, algorithmic and user-facing design, reporting processes, terms of service enforcement, and data transparency. In light of public disapproval and activist calls for regulation, effective attention by the platforms themselves is now a matter of self-preservation.

In addition, much empirical and analytic work by researchers still needs to be done to help direct reform efforts. The Article therefore offers a research agenda for scholars. For example, researchers should correct the paucity of empirical studies focusing on the experiences of African American journalists. They should also study further the impacts of public exposure to identity-based attacks on reporters. The Article also reinforces the need for independent researcher access to social media platform information to aid in advancing empirical study of online harassment.

The Article proceeds in five sections. Section I describes the current picture of identity-based online harassment against the press, focusing on African American journalists, women, and journalists perceived to be Jewish; sketches the memetic turn designed to avoid criticism; and explains both the institutional push to engage online and the institutional failures in addressing the harassing results. Section II explores the consequences of online attacks on journalists personally, on their professional routines, and on the journalistic function writ large. The Section argues that those expressive threats familiar to white supremacy have not only hurt and minimized non-white, non-male and non-Christian reporters but also have delegitimized the press and undermined journalism as a whole. Section II also situates the harassment dynamic in the context of news organizations' developing attempts to increase diversity in the newroom. Section III outlines the rise in physical violence and threats of violence against the press, especially by law enforcement during political protests and in politically-incited attacks by private parties. The Section argues that online threats must be seen as only one part of a mosaic of threats facing journalists in their work. Section IV situates the expressive and physical violence described in the previous Sections in what amounts to a broader, multifactorial approach to the delegitimization of the mainstream press. The Section contends that while this strategy was emblematic of the Trump administration, it has not disappeared with the election of President Biden. Finally, while recognizing the complexity of the issues and the response-related ambivalence of many reporters themselves, Section V considers ways forward, including recommendations for news organizations, journalism schools, scholars, press-representing organizations, reporters themselves and the social media platforms on which online harassment of journalists diffuses.

[. . .]

Increasingly, journalists who identify as Black, women, Jewish, Muslim, Latinx, Asian American, LGBTQ+ and/or whose identities are intersectional are arguing for an enhanced and visible presence and an increased role in the ways in which news media define and portray the world and their communities. They are charging that, historically, mainstream news organizations have reported principally from the vantage point of the white male gaze--and have therefore alienated and failed to speak to other communities. They are calling for more inclusive journalism, and news organizations are beginning to attend to the benefits of diversity in the newsroom.

At the same time, however, journalists are facing unprecedented attacks in performing their press functions. Social scientists and media scholars are documenting the endemic reality of identity-based online harassment experienced by the vast majority of journalists who identify as non-male or as members of racial, ethnic or religious minority groups. Analysts are showing also the degree to which such harassment is based on identity bias and often uses the most hateful white supremacist and misogynistic language and images to achieve its widespread intimidating effects. It is also important to see this psychic landscape in its broader context: one of increasing physical danger to journalists globally. Identity-based harassment of journalists is neither accidental nor limited to a few, isolated individuals. All too frequently, it is part of organized and strategic campaigns. Overall--whether individual and decentralized or systematic and collective--such harassment is an attempt by some publics to silence diverse voices and undermine the democratic role of the press.

This pattern of online harassment harms journalists themselves individually (at a minimum in job satisfaction and mental health), likely leads to responsive changes in their news practices and to self-censorship in their work, and threatens news organization attempts to enhance the diversity of the professional press. To the extent that it leads journalists who identify as non-white, non-male and non-Christian to leave the profession, it undermines recent attempts to make the press more inclusive, diverse, and responsive to the entirety of the public. These chilling effects thus harm not only the targeted individual journalists, but all journalists and the function, legitimacy and credibility of the press as a whole. Further, to the extent that the press is an agent of the public, then harms to the press' ability to perform its democratic role harm the overarching public interest.

Until now, journalists charge that most news organizations have treated reporter harassment as a personal issue for particular reporters, to be dealt with by the reporters themselves or, at best, by Human Resources departments or company Security staff. This Article has argued instead that harassment of reporters should be seen as a broad-based press problem and therefore a democracy problem.

When observed most broadly, online harassment takes its place as one of the three press-delegitimizing tactics weaponized during the Trump administration. These tactics consist of challenging settled press-protective legal doctrine, attacking the press's published output and its claims to institutional credibility, and undermining the reporting function by intimidating the reporters in their work. Despite electoral change, the echoes of these tactics remain and may even be increasing in their reverberations.

Finding realistic ways to restrict the flow and counteract the harms of online expressive attacks on reporters is an imperative next step if the press ise to perform its constitutionally recognized role under current conditions of existential threat. This Article has argued for a variety of ameliorative steps directed to news organizations, journalism schools, press-protective organizations, social media platforms, social science researchers and journalists themselves. News organizations and their allies should recognize that obligations to protect reporters against expressive violence are morally required, likely to be legally expected, and simply a matter of good business today. As a matter of self-preservation, social media platforms too must accept the part they play in the environment of online harassment. This involves attending to the design of their tech tools, complaint procedures, terms of service enforcement and needs for informational transparency. In turn, researchers should systematically provide the empirical data to guide these steps, including by remedying the insufficiency of current research into the experiences of African American journalists. All the recommendations in this Article are grounded in the realization that reporter harassment is best seen as a collective social problem undermining the democratic benefits of a robust, vibrant and inclusive press. Consequently, collective and coordinated solutions--rather than individual and isolated approaches--offer the most realistic hope of stemming this tide.

Professor of Law, University of Miami School of Law.