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Andrew Gilden, Cyberbullying and the Innocence Narrative, 48 Harv. Civ. R.-Civ. L L. Rev. 357 (2013).

As Andrew Gilden reports in this revealing article, bullying and especially cyberbullying reforms are becoming institutionalized. Prosecutors respond to media coverage of teens bullied into suicide with creative prosecutions. State and federal law require secondary and primary schools to single out bullying for swift and severe punishment and have set up special bureaucratic processes to surveille bullying, report it up the chain of command, and publicly rank schools by the numbers they generate in the process. Schools are also required to teach kids the evils of bullying. Because internet use is often blamed as a medium for “cyberbullying,” a big segment of the antibullying campaign is focused on controlling teens’ access to sexual content on line. This includes Congressional efforts to immunize ISPs for restricting access to obscene material on-line and to enhance parents’ ability to filter their children’s access to that material. Cyberbullying overlaps in many policy efforts with sexual predator scares to promote the closure and blockage of sexually-oriented chat rooms and other fora in which teens could get in over their heads.

Preventing and punishing bullying has become an important LGBT priority. From the media storm over the suicide of Tyler Clementi to President Obama and Kim Kardashian reaching out to gay kids on Dan Savage’s “It Gets Better” website, pro-gay advocacy has played a key role in generating social and political support for anti-bullying reforms. The logic of their efforts seem obvious: gays are victims of bullying precisely for their sexuality, so controlling this phenomenon will be good for them.

Gilden bravely calls our attention to the downsides of these reforms. He writes as an advocate of “gay teens” and argues that social-control efforts targeting teenage bullying have costs, not just benefits, for LGBT youth. His basic argument is that securing and enforcing these reforms depend on an “innocence narrative” in which bullying victims are social and especially sexual innocents whose salvation lies in the hands of adult protectors – and that this narrative leaves out too much. It omits the active sexuality of LGBT youth and their need to find ways to express it as they mature; it leaves out the healthy and life-affirming nonvirtual and internet venues where they join in what Gilden calls “sexual communities” – groups formed specifically to explore sexual identity and make nonnormative lives livable – and it leaves out the possibility that some “bullies” are less destructive than the victim/savior pattern requires and may even be LGBT youth themselves. To give you a taste, here is Gilden’s take on Savage’s almost universally acclaimed “It Gets Better” message: gay teens should “sit on their hands and wait for adolescence to run its course[.]” What if, as well or instead, we tried to “appreciate their desires and capacities to make things better now”? (394).

Gilden’s introit to his topic is the Tyler Clementi case. Clementi was a brand-new freshman at Rutgers University when his roommate Dahrun Ravi set up a webcam in their shared room and broadcast video of Clementi having sex with another young man. Clementi committed suicide within days of these episodes. The standard understanding of this story, Gilden argues, exemplifies the innocence narrative. He collects media and blog posts to show how, almost instantly, Clementi was portrayed as an inoffensive and closeted sexual neophyte thrown against his will into a maelstrom of public shame about his sexuality by a relentless and inhuman attacker. LGBT advocates promptly attributed his suicide to bullying, which they linked to the disproportionately high rate of suicide among LGBT youth. The legal response was highly punitive. Ravi was convicted of invasion of privacy and other crimes (although not, as some gay advocates urged, murder), in a trial which Gilden analyzes closely to show us, yet again, the centrality of the innocence narrative to the crime-and-punishment understanding of anti-gay bullying. And he shows how the Clementi case prompted the New Jersey legislature to require schools to treat student/student bullying as a serious offense.

From careful culling of trial testimony and press accounts, Gilden shows how this version omitted some elements that disrupt the innocence narrative. Clementi was not closeted; he was out to his family and many others. Nor was he a sexual neophyte. His sexual partner in the video was a 30-year-old man he found on a gay male hookup site and had sex with in three encounters over one week. It was also not clear that Clementi experienced himself as a sexual innocent destroyed by an on-line outing, or that he thought that the internet is a site of sheer danger for gay teens like himself. Before the notorious Ravi webcam episode, Clementi had posted sexually explicit videos of himself on an adult website, and after learning about Ravi’s videos Clementi discussed them ruefully and sometimes even humorously on line among a web community of young gay men to which he was a regular contributor. Moreover, Clementi he had been diagnosed with depression and had made harddrive files with anguished filenames well before the webcam episode, suggesting a more complex psychological history than the innocence narrative can accommodate. Gilden portrays Clementi as a young man struggling to come to terms with sexuality and life.

To be sure, Gilden downplays some of the signals that Clementi thought he had been victimized and sought both relief and redress. He did ask his RA to arrange a room-assignment change and to ensure Ravi’s punishment. Clementi’s family has a suicide note that never had to be disclosed because the prosecution’s case did not turn on the cause of his death, so we may never know what it would tell us. But Gilden does not claim that bullying doesn’t happen, that predators don’t scan the cyberhorizon for young victims, or that Ravi’s videotapes were not, as Clementi described them to his RA, “wildly inappropriate.” Instead, he argues that the innocence narrative was projected onto Clementi, producing distortions that have policy implications.

First, the internet was not all bad for Clementi: he used it to explore his sexuality and to find a sexual community where he could seek moral support and ponder what to do about Ravi’s broadcasts. Second, Clementi was a sexual agent, not purely a passive victim, and that agency meant that he was engaged with both the pleasure and the danger of active sexual life. And third, Clementi’s careful management of his outness and his privacy was an elaborate process of “boundary management”: it was not closetedness and virginal timidity but this exploration that Ravi’s violated with his broadcasts. On each of these points, Gilden brings ethnographic and other sources to help show that Clementi was by no means unique in any of these ways — that many gay teens are a lot like him.

Would our new anti-bullying establishment look different if gay teens’ sexual agency had mattered, along with their victimization, in its construction? Though he does not try to answer that question, Gilden deserves credit for putting it squarely on the table.

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Cite as: Janet Halley, A Pro-Gay-Teen Argument for Pushing the Pause Button on Anti-bullying, JOTWELL (September 5, 2014) (reviewing Andrew Gilden, Cyberbullying and the Innocence Narrative, 48 Harv. Civ. R.-Civ. L L. Rev. 357 (2013)),