What Is Wrong with Inflicting Shame Sanctions?

Abstract

We are all aware that there was a time in the western world when punishment frequently revolved around the public humiliation of the offender. Everyone likes to read about the picturesque barbarism of the old punishments: the pillory, the stocks, the ducking stool, branding, and so on.' Many of us are also dimly aware that such shame sanctions continue to be used in much of the nonwestern world. It is common knowledge, for example, that public humiliation of a dramatic sort was featured in the law of Maoist China; its rituals of self-criticism, public admonition, and public exposure of offenders are well known. 2 It is also widely known that such shame sanctions have continued to feature in the practice of the People's Republic,' where ,economic" criminals may still be trucked around town wearing signs describing their offenses. 4 Many countries other than China are known for . Ford Foundation Professor of Comparati'e and Foreign La%%. Yale Lav% School Earlier .ersions of this Essay were presented to faculty suorkshops at the Umni.erstit de Cerg)-Pontoise. the University of Pennsylvania Law School. and the Yale Lay, School MN thanks to the participants at all three gatherings for their comments. I also owe particular thanks to

Criminal law and regulation

“…We have already seen that the latter generates stigma which may be important in raising the costs above those arising from the formal penalty to a level necessary for deterrence purposes. While an administrative imposition will not by itself have this eff ect, a similar outcome can be achieved by the regulatory agency publicising the fact in some appropriate media (Whitman, 1998). Likewise, the confi scation or immobilisation of assets can facilitate deterrence where the limited wealth of off enders renders them insensitive to fi nancial penalties but where the costs arising from draconian penalties such as imprisonment are not justifi ed by the level of harm infl icted by the contravention .…”

Online Shaming and the Right to Privacy

“…For a history see Goldman [4]. 5 For further information see the series of scholarly articles from the 1990s, which debated the value of shaming, although the focus was on government-sponsored sanctions, such as such as the use of shaming by the judiciary as an alternative to imprisonment [9][10][11]. This is observed in the case of Shawn Gementera, who was sentenced to, among other things, carry a sign with the words "I stole mail; this is my punishment" outside a postal facility: [6] discussed by Goldman in ( [4], pp.…”

“…This paper does not seek to interrogate the meaning of shame or the general merit of shame sanctions [6][7][8][9][10][11][12][13][14]. 5 Rather, this paper uses the regulatory given of online shaming as a launching pad to analyze what this means for our understanding of the meaning of privacy.…”

“…It has an audience ( [1], pp. 9,[11][12]. This definitional focus on the normative role of shame is apposite given that internet law scholarship is rich with analysis of the role of norms in regulating the online environment [15][16][17][18][19][20].…”

“…It is a common strategy to address regulation of internet-based companies, such as the campaign against Facebook for its refusal to shut down a rape joke group [21,22], 9 or boycott of the internet registration authority GoDaddy for supporting the Stop Online Privacy Act (SOPA) and the PROTECT IP Act (PIPA) [23], 10 or creation of fake Facebook groups to publicly test the quality of Facebook's application of its community standards [24]. 11 At its worst, shaming is a brutal form of abuse, causing, among other things, social withdrawal, depression and anxiety ( [1], p. 10, chap. 6).…”