Baseline Hell, Mob Rule, and the First Amendment: Are Gossip, Doxxing, and Other Private Sanctions Exercises of, or Attacks on, Freedom of Speech?

As (both of) my readers know, I am an enthusiastic collector of constitutional disputes that end up in baseline hell. Baseline hell occurs wherever social norms about entitlement are so contested that any change in the status quo can be painted as either the exercise or invasion of private rights. One can discover zero-sum games in a variety of constitutional contexts -- for instance, in the doctrine of regulatory takings and zoning, in anti-commandeering/state autonomy doctrine, in the conflict between religious free exercise and anti-establishment rights, and in campaign finance law.

The various reactions to Moira Donegan's outing herself as the creator of the "Shitty Media Men" list suggest another addition to my diabolical collection. In the "Shitty Media Men" Saga, four sets of private speakers claim some sort of moral or legal right either to be free from, or to engage in, anonymous speech. First, as Andrew Sullivan notes, those allegedly shitty media men who allegedly sent "creepy" texts complain about anonymous accusations that do not let them confront their accuser, see the evidence against them, or proffer any rebuttal. Second, Harper's was threatened with Twitter mobs trying to scare the magazine away from publishing the identity of the person who accused these men. Third, as Sophie Gilbert and Robyn Pennacchia note, women cannot easily protect themselves from shitty conduct by media men except by anonymously pooling alleged information about the men's alleged shittiness, because public accusations expose the women to horrific alt-right harassment (to which Donegan is now exposed). Finally, judging by the First Amendment defense raised by Andrew Angelin, the neo-Nazi blogger who doxxed a woman for criticizing a fellow white supremacist thereby exposing her to hundreds of harassing messages, those alt-right harassers will certainly claim a freedom to harass anonymously. Everyone's right to anonymous communication, in sum, seems to threaten everyone else's right of anonymous communication: It is baseline hell with an infernal vengeance.

Does anyone have a persuasive way to negotiate these rival claims to engage in anonymous speech? I do not mean to ask whether you can produce a brief persuasive by the usual standards of the usual cases (Snyder, Gertz, etc.). Of course, you can, O Law Prawf (or even smart 3L). (For a good example of this sort of case-jockeying, see Eugene Volokh's amicus brief in Walker v. Maryland). Instead, I am asking whether anyone has created what existing doctrine patently has failed to provide -- a framework that genuinely protects freedom of speech not only from content-based "state action" but also from private mobs like those in "Gamergate".

My hypothesis: Since New York Times v. Sullivan, First Amendment doctrine has obsessed about content-based common law rules but ignored content-based mob rule, because First Amendment speech doctrine has no intelligible theory of state action. If internet Night Riders don their hoods and gallop off to lynch someone on Twitter, email, or voice mail, it is no concern of SCOTUS, because the vigilantes are not "state actors." The cure for doxxing is apparently more doxxing. Yet everyone knows that such "private" action chills speech as a practical matter: Just ask Donegan, the men she outed, or the magazine that attempted to out her.

Has SCOTUS, in short, relegated us all to a Hobbesian baseline hell in which, in the name of free speech and an utterly undefended theory of state action, everyone is terrified of speaking, because everyone is entitled to terrorize everyone else's speech with one or another sort of mob rule?