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Friday, April 24, 2015

On Anonymous Speech

When I drive into the BC parking lot, I'm always wary of the dad drivers with out-of-state plates.  Not just because they're lost, texting their kid to find the right dorm, and pushing the family dog into the back seat with the other arm (although also that).  It's because they're way more aggressive.  And heck, if I'm honest, I am probably way more courteous -- stopping for pedestrians, waiving ahead left-turners -- in that parking lot than I am when I'm away from home.  They know me, and who wants to face someone in the hall after you've just been rude to them on the road?  

Anonymity, in short, is a shield for our worst impulses.  We have a trove of data on this now.  Probably I could just say, at this point, Cf. The Internet.  But we have scientific studies, too.  Putting your name on a blog post or a letter to the editor is like the hand-drawn eyes in the office kitchen (reported by Thaler & Sunstein in Nudge, if you don't remember): it's a prompt to imagine how other people would respond if they observed us acting unkindly or unethically.  

I don't want to live in a community where everyone behaves like total strangers to one another, where moral obligations, norms of kindness and generosity of spirit and respect for disagreement can be shucked off.  I don't want to blog in a place like that.  And I don't want to vote in a place like that.  For that reason, I've argued against the use of charitable organizations as shields for the anonymity of political contributors.  And I have been very aggressively removing anonymous, spiteful comments from my threads during my time at prawfs.

There's of course a strong historical tradition of anonymous pamphleteering in America.  My view is that too much is made of that history.  Yes, anonymity was a shelter for colonial resistance to the British authorities.  But the First Amendment does that now.  Anonymity, of course, also shelters speech from responses by private actors.  Maybe, as a con law tyro, I'm missing something.  But where is that in the First Amendment, exactly (aside from, perhaps, an obligation of the government to protect us from overwhelming efforts to interfere with fundamental participation rights)?  I thought that was how the marketplace of ideas was supposed to work.  We also have some good data that the sources of speech are really important to how citizens evaluate the truth of claims.  At best, anonymity protects speech by undermining its value.  

Is this all a bit rich, coming from someone who blogs under their initials?  Maybe.  I will say that my name is right there in the right-hand column, so it ain't exactly a Will Shortz puzzle to figure out who I am.   In the rare instances where I comment using my initials and someone doesn't seem to know who I am, generally I will e-mail them.  To me this is different than the "anon123" or "erstwhile T100" noms de guerre: most of the people whose opinions matter to me will know who I am.  My rationale is that I prefer not to have a thousand blog posts be the first search results for me, which would otherwise happen (especially at prawfs, which gets a good google score).  But maybe, if I'm honest, I also value the possibility of anonymity from the one-time commenters, those who (as in a now-deleted comment on my recent thread) confess to having mental health issues and say "my grievance is with you."   I hope that wearing that half-mask doesn't change the way I blog.  But maybe it does.  I have to think about it some more.  

Posted by BDG on April 24, 2015 at 11:39 AM | Permalink



Speaking of professional networks... If you're the Bradley Gottfriend at Southern Maryland, do you happen to know what your English Composition adjuncts are paid, and how many courses they are capped at per year?

CSM is a bit of a drive for me, but it'd be worth it if I could pick up a 2/2 teaching load (with classes on the same days) and not have to find a third school to teach at.

Posted by: Derek Tokaz | Apr 24, 2015 4:00:53 PM

In the context of blog comments, I'm not sure that real names of people outside your network matter much. If one of your fellow professors is unduly nasty in the comments, that could, though won't necessarily, have some social repercussions. You might well come face to face with him or her in the future, so there's the look you in the eye aspect.

You and I on the other hand have never met. We probably don't know anyone that the other knows. Given how social networks work it is likely there is a three or so length chain that would connect us, but frankly that's pretty tenuous. My real name is attached to this post, and it's not too terribly common a name, you'll could probably figure out which one of them I am, but so what? If I were to write a nasty comment would you track me down to tell me in person how rude you thought it was? In an extreme enough situation (death threats or similar) maybe there'd be employment consequences or the media would pick it up, but that's not the usual case.

So sure, maybe there's a little bit of restraint attached to having my real name attached to a post, but if you read the comments section for a while in various places around the web and come across the persistent trolls all to happy to say who there are, I don't know how strong it really is.

It seems like real restraint comes from both a lack of anonymity and some sort of shared community. Second best is some persistent identity, whether a real name or a pseudo-anonymous one. In that sense, I think you should be just as happy (or unhappy) with "Shag from Brookline" as you are with "Bart DePalma".

Posted by: Bradley Gottfried | Apr 24, 2015 3:23:42 PM


I suggest you go to career services at your university and ask them what they tell students to do in regards to their social media lives (such as Facebook privacy settings).

That will give you a pretty good idea of the value of anonymity. Do you want to live in a world where the only people who can participate in public fora are those with robust job security?

Posted by: Derek Tokaz | Apr 24, 2015 3:20:56 PM

Thanks, Paul. By "that" in "where is that" I meant the right to be free of private responses to one's speech acts. This isn't to say that all the relevant rights have to be in the First Amendment; for example, we might think there is a 14th Am. right to government protection against some forms of violent intimidation. But given that in most settings there are more generally-applicable protections that could be invoked there (and that civil-rights era "private" efforts to categorically suppress some viewpoints actually involved a lot of state action), my point is really that the cloak of anonymity doesn't seem like it's adding much. Once these other protections are taken into account, the only marginal contribution is to shield the speaker from embarrassment, ridicule, and perhaps professional consequences. The first two of these are what I have in mind when I say that is how the marketplace of ideas works; you say something ridiculously dumb, Jon Stewart mocks you, and then you crawl off back under a rock. Maybe this "counterspeech response" is still possible as against the nameless, but I doubt it. Would it be as easy to mock John Bolton's calls for bombing, you know, everyone, if he weren't John Bolton?

Professional consequences is harder. I suppose what I would say is that if there is constitutional value in protecting people from third-party reactions to their speech, it makes more sense to me to protect that directly, rather than using the anonymity bank shot. This is especially true given all the social science we now have on the effects of anonymity on civil society.

Hey, this is a blog post, so no doubt I have overlooked many good counter-points. I would be interested in some suggested reading on the "sound arguments for anonymous speech."

Posted by: BDG | Apr 24, 2015 1:51:57 PM

In my experience litigating the Communications Decency Act (which is meant to protect Internet service providers from 3rd party material posted on their websites), when attacks are made on anonymous speech it is all to easy to point to pamphleteering. This is because Alexander Hamilton championed anonymous speech. And, as we all know, many lawyers and professors champion Hamilton and the Federalists.

Federalist Society about us page (http://www.fed-soc.org/aboutus/):
Law schools and the legal profession are currently strongly dominated by a form of orthodox liberal ideology which advocates a centralized and uniform society. While some members of the academic community have dissented from these views, by and large they are taught simultaneously with (and indeed as if they were) the law.

Posted by: Carlos Rosario | Apr 24, 2015 1:45:46 PM

Not sure I quite got the second paragraph, Brian. (If that is your real name!) When you say "[w]here is that in the First Amendment," do you mean where is the right of anonymity, or something else? I was also unclear what you meant when you said anonymity "shelters speech from responses by private actors." I'm not sure how it does that, as a general matter as opposed to in specific instances (ie., it's much harder to publicly shame someone who says something shameful if that person is speaking anonymously). It seems to me in any event that, even leaving aside fairly robust decisions of the US Supreme Court protecting anonymity in specific contexts, it is not at all hard to make sound arguments for a First Amendment right to speak anonymously, or similarly to argue that a multitude of counterspeech responses to anonymous speakers are possible. Of course, none of this has much to do with anonymity here on our blog, which is not a state actor. Nor will I make any statement here about the merits or demerits of anonymous speech; I've said my piece on that one and will stay out of it. I'm just interested in the First Amendment issues you raised. Best wishes, Paul

Posted by: Paul Horwitz | Apr 24, 2015 12:27:11 PM

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