Internet shaming: The legal history of shame and its costs and benefits.

Are the Benefits of Our New Shaming Culture Worth the Costs?

Are the Benefits of Our New Shaming Culture Worth the Costs?

Eric Posner weighs in.
April 9 2015 11:14 AM

A Terrible Shame

Enforcing moral norms without the law is no way to create a virtuous society.

military officers standing and sitting in stocks.
Uncle Sam, John Bull, and a crowd of spectators watch French military officers in stocks. They are labeled with the names of officers responsible for the conviction and reconviction of Alfred Dreyfus for treason. (He was ultimately exonerated.)

Illustration by John S. Pughe/Library of Commons

Thanks to Jon Ronson’s new book, So You’ve Been Publicly Shamed, we can finally attach a label to the heretofore inchoate phenomenon of Internet shaming. The book focuses on the personal consequences for people who have been shamed on Twitter, Facebook, and other social media—some of whom have lost their jobs. Much of the reaction to it—like that of Slate’s Daniel Engber—considers whether the subjects of Ronson’s book deserved the shaming that they received. But this is a tiny issue next to the real question Ronson raises: Are the benefits of our new shaming culture worth the costs?

Shaming is a form of social control. It occurs when a person violates the norms of the community, and other people respond by publicly criticizing, avoiding, or ostracizing him. Shaming has always been extraordinarily important—often, even more important than the formal legal system. In the distant past, when legal systems were rudimentary, shaming was a major source of public order.

The law has always had an ambivalent relationship with shame. On the one hand, shaming is the very antithesis of the law. The basic principle of due process holds that a person has a right to contest charges or claims against him to an impartial tribunal before the government may inflict a sanction on him. By contrast, shaming occurs in the absence of due process. While it is triggered by a perceived act of wrongdoing, no one takes responsibility for establishing what happened. Instead, others react, often instinctively and harshly, and often to emphasize their own virtue through their condemnation of someone else’s vice. The upshot is a reaction that looks a lot like mob rule. That is why people can easily be shamed even though they did nothing wrong or not be shamed even though they did do something wrong. It also explains why, as Ronson documents, people are often punished in a way that does not reflect the severity of their conduct. Law displaced shaming because such a chaotic system can do as much harm as good.

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However, legal systems have also frequently tried to harness the power of shame. In the past, a common form of criminal punishment was restraint in the stocks, a highly public and shameful exposure. Even today, the perp walk, public trials, criminal records, and all the rest ensure that anyone who encounters the law will be publicly shamed. Legal authorities see shaming as a cheap and convenient way of augmenting criminal penalties. People who are tempted to commit a crime are deterred not only by the threat of fine and imprisonment but also—and perhaps more effectively—by the vision of the shame that they would bring down on themselves and their families if they are caught.

The rather disorganized way that the law uses shame to punish people and deter crime has, from time to time, led commentators to advocate a more systematic use of it. In the 1990s, Dan Kahan, a legal scholar who now teaches at Yale, argued that the government should use shaming sanctions in a more self-conscious way. He pointed approvingly to judges who ordered people to wear T-shirts or bracelets that say “I Write Bad Checks,” or to put bumper stickers on their cars that say “CONVICTED D.U.I.” One court ordered a slumlord to live in one of his own buildings. (His tenants posted a sign that read “Welcome, You Reptile!”) Kahan preferred shaming sanctions to imprisonment for minor crimes because they cost taxpayers less, impose less harm on offenders (or so he believed), and vividly expressed society’s moral disapproval of the offense. (He later recanted his views.)

Jennifer Jacquet, a professor of environmental studies at New York University, goes farther and argues that the public itself should shame people and corporations who violate moral norms. In her new book, Is Shame Necessary? New Uses for an Old Tool, she argues that public shaming can be harnessed for good, for example, to compel corporations to stop polluting. On her website, she cheerfully leads the charge with a media-savvy “shame gallery” that targets Japan (for harpooning whales), Bank of America (for financing strip mines), Fox News, the Koch brothers, and other familiar hobgoblins. Human rights groups have long “named and shamed” torturers and dictators—on the theory that by enlisting public opinion against wrongdoers, they could pressure states to punish them.

The attractions of a new shame culture, where denizens of Twitter and Facebook target people who harm society, are easy to see. Our plodding legal system often fails to do justice because of high standards of proof, the expense of lawyers, and the weakness of the laws—laws that are often so weak because rich corporations exert so much influence over legislatures. Indeed, shaming allows us to avoid the messy business of legislation in the first place; moral norms are enforced directly, so one doesn’t need to wait for the political system to lurch into motion. If there is no law against making racist arguments, we can nonetheless shame people who do. Shaming seems like a democratic, cost-effective, and fluid device for combating environmental degradation, racism, and homophobia—for creating a virtuous society.

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But the truth is nearly the opposite. If you try to think of which group has been the most consistent target of social media shaming, it is surely women who dare to express their opinions or to break up with boyfriends. The major effect of social media is that it enables people to broadcast an opinion—or, more accurately, a gut reaction—to the whole world, instantly, without pausing to give it any thought. This, combined with pervasive anonymity and traditional animosity to anyone who acts or thinks unconventionally, has awoken atavistic instincts that are multiplied a hundredfold through herd mentality. And then these ill-considered reactions are stored indefinitely, while being immediately accessible to anyone, thanks to the efficiency of search engines.

It is possible to argue that the Internet has re-created small-town society, where everyone knew everything about everyone, so everyone acted virtuously in order to avoid ostracism and other sanctions. But this argument rests on a romanticization of that era. Small-town societies bred small-mindedness and conformity, and if they were ever tolerable, it was only because one could leave. One can’t leave the Internet. Once shamed, always shamed.

Jacquet is aware of these problems, and so even as she advocates shaming, she tries to constrain how it is used. But once people get in the habit of shaming, there is no way to control them. Many of Jacquet’s prescriptions—like shame “where the possible benefits are greatest”—beg the question of what is “good.” Saving the environment or keeping women in the home? Protecting gays or advocating traditional marriage? Humiliating racists or tormenting immigrants? Disagreements that would normally be hashed out in a legislature or court now become a war of all against all in which personal vilification is the weapon of choice. The single most effective way of advancing an ideal is to humiliate someone who acts inconsistently with it.

Back in the 1990s, academics rediscovered the ancient ideals of deliberative and direct democracy. They argued that our democracy had become sclerotic because of the excessive role of parties and political institutions, which had usurped citizens’ democratic prerogatives and drained them of the desire to join in political debate. The solution was to be greater public deliberation.

The gods mischievously granted their wish by bestowing the Internet on us. And we do have more public deliberation than we did in the past. But the costs of our new shame culture are only now coming into view.