One problem with the criminal justice system is that too many things are crimes. Another problem is that people who commit crimes are often punished in ways that are disproportionate to the wrongfulness of the crime.
I discuss these problems elsewhere. TLDR, I think people only forfeit their entitlements to a certain kind of treatment (non-interference, assistance) insofar as they failed to treat others in that way. And people only forfeit their rights against interference (liability) in proportion to the extent that they failed to treat others in this way. On this view, liability is set at the price of the violation and in the coin of the violation. So too many things are crimes because the law punishes people who aren’t liable to be interfered with (e.g. drug users) and even when people are liable to be interfered with, the criminal sanctions are often disproportionate to the crime.
Beyond the criminal justice system though, this framework for understanding liability can also apply to informal sanctions and criticism, such as social exclusion or public shaming on social media. These practices are within the realm of social norms. No one is getting arrested or going to jail for bad tweets. But practices of exclusion and shaming still raise questions about the ethics of enforcement, just not legal enforcement.
Way back in 2017, Conor Friedersdorf drew an analogy between Parfit’s case of the harmless torturer and social media call outs. In the harmless torturer case, one thousand torturers each press a button that causes an imperceptible amount of pain, but cumulatively the button pressing amounts to torturing their victim. Friedersdorf wrote,
An analogous phenomena plagues efforts to enforce social norms via social media. Each critic scolds a transgressor in ways that seem proportionate and reasonable, as if turning to a stranger at a supermarket and saying, “Excuse me, I heard what you just said, and I really think you got it wrong.” What few critics fully realize is that thousands of others are doing the same and much worse—that the cumulative effect is a digital equivalent of thousands of people gathering around a transgressor at the supermarket and angrily shouting insults for three hours. If that happened in offline space the mismatch of proportion would seem monstrous; when it occurs in the online space only the target typically notices.
Here, Friedersdorf is making a similar point about proportionate liability, even if someone acted wrongly, the online response to wrongdoing is often disproportionate.
Say someone says something mean, thoughtless, or offensive online. How are they liable to be treated? Before asking this, we first we should ask, should people consider mean, thoughtless, or offensive online speech a kind of moral violation? I think too often, good faith speech is considered a moral violation when it shouldn’t be. But in some cases, yeah, a person may say something that is morally bad. In these cases, setting liability (roughly) at the price of the violation and in the coin of the violation would mean that the person who said the bad thing lacked the standing to complain about social sanctioning, which would consist in other people saying mean, thoughtless, or offensive things to him.
And there’s also a proportionality constraint. If the person had a big following, they may be liable to experience more social sanctioning than someone who had a small following. This is because people with bigger followings are likely to have done more harm in saying whatever mean, thoughtless, or offensive thing they said. Twitter screws this up though because sometimes people with a small platform are amplified onto a big platform. So for example, when Justine Sacco made a bad joke on twitter, her joke was amplified, and then she was exposed to the big-following norms of social sanctioning even though she committed a small-following violation. It was the people who amplified their voice that amplified the harm, but they were not subject to any social sanctioning.
Anarchists often argue that the same moral reasons that govern our personal relationships (e.g reasons for non-violence) should also apply to political relationships. But by the same token, the same moral reasons that pertain to political relationships also apply to our personal relationships. Those who are critical of inappropriate and disproportionate forms of sanctioning by political actors should also be critical of these practices within social life.
I’m not claiming that people shouldn’t identify, criticize, and resist injustice when they see it. I’m claiming that moral reasons related to liability should inform how people identify, criticize, and resist injustice. And if you think it’s wrong for agents of the state to engage in excessive policing and punishment, then you should also question practices of policing the boundaries of social groups and publicly sanctioning people online.