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Saturday, January 13, 2018

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?

Posted by Rick Hills on January 13, 2018 at 09:06 PM | Permalink


Okay, maybe I was too glib in response to your concerns about the state action doctrine as it applies to free speech. It isn't the most coherent thing in the world. But I still don't see what exactly you expect the First Amendment to do about the problems you are concerned about.

It isn't exactly as if Congress and/or state legislatures have been passing measure after measure intended to deal with doxxing or twitter mobs only to have them struck down by the Supreme Court on First Amendment grounds. And if we look abroad, the UK for one has no First Amendment, has no NY Times v. Sullivan, and was the land of the ASBO. Yet the UK has no less of a problem with doxxing and twitter mobs than the United States. See, e.g. Black Mirror: Hated in the Nation.

Finally, I don't think the risk of incitement to physical violence is especially high. In a country of 300+ million people over the last several years, there's was the pizzagate guy and ... what else? Which other online "mobs" lead to even attempted physical violence?

The real problem is the harassing messages themselves -- the emails, phone calls, DMs, comments in the comment sections, and so on. That problem is akin to the problem of spam and has a similar, technological, solution. Just as machine learning algorithms can be trained on "Horny Russian woman want to sleep with you" so too they can be trained on "I hope you get raped and murdered". Once these messages are relegated to electronic void where they belong 90% of the problem is fixed.

Doxxing in the narrow sense might still be a problem for some, there are probably out there that want to make antisemitic memes or advocate for furry acceptance without their friends, family, and coworkers knowing, but I don't think the law ever has, can, or should guarantee anonymity as against private people doing detective work. Plenty of people figured out Hamiltonian's various pseudonyms over the years.

Posted by: brad | Jan 15, 2018 11:24:42 AM

I didn't mean to suggest that I was endorsing your purpose-oriented approach to these matters. Rather, I wanted to suggest that trespass may not even be a content-neutral, non-discriminatory regulation of speech.

I do heartily agree that the only reason we have to think that the state of affairs you describe will reach the best end-state of speech are "empty slogans" about the marketplace of ideas, but I also don't think we legally can, or pragmatically should, soup up the First Amendment into an engine for reaching that optimal end-state. Cf. Citizens United.

Posted by: Asher Steinberg | Jan 15, 2018 2:07:50 AM


Yes, that's definitely a pattern and not an exception to the rule. Thank you for reminding us that conservatives and progressives are treated identically by the administration and IRS. As you say, the same number of progressive speakers were disinvited from campus last year as conservative speakers.

Posted by: Ben Sh | Jan 14, 2018 7:21:46 PM

Not only as a conservative, Milo. https://www.insidehighered.com/news/2017/10/11/drexel-places-controversial-professor-leave

Posted by: Rick Hills | Jan 14, 2018 4:47:03 PM

"People are driven from their homes and jobs by such on-line harassment, because of the high risk of incitement to physical violence."

Maybe the problem is our schools have failed to inculcate tolerance of intellectual diversity in our children. No one gets mobbed for being doxxed as a gay or a jew, only as a conservative.

Posted by: Milo | Jan 14, 2018 4:04:26 PM

Asher writes: ”Perhaps trespass law’s effects are ...incidental and randomly/incidentally dispersed....“

Yes, that is, I think, the most popular theory for distiguishing NY Times v. Sullivan/Shelley v. Kraemer from Bell v. Maryland/NLRB v Hudgens. Tribe suggested this theory back in the ‘80s, I believe. I myself am a fan of reducing the ”state action“ requirement to the requirement that plaintiffs prove a discriminatory governmental purpose (the later requirement described as being “content-based” in the Free Speech context). See my “Federalism, Democracy, and Deep Disagreement” at
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3017530 ).

But note that reducing “state action” to “discriminatory governmental purpose” cannot explain explain a swathe of First Amendment free speech doctrine, including the duty to protect marchers against a heckler‘s veto in Forsyth County v Nationalist Movement, https://supreme.justia.com/cases/federal/us/505/123/case.html and the ban on content-neutral laws that control membership of expressive associations in BSA v Dale and Hurley.

Aside from the difficulty of any such unified field theory of discriminatory purpose/state action in First Amendment free speech doctrine, there is a different policy problem. Our constitutional doctrine places substantial constitutional limits on tort laws without saying much about how the private action liberated from such tort laws deters speech. This seems to me like a blind spot in the doctrine. Today, expression on the internet is substantially chilled by private mobbing, harassment, doxxing, etc. People are driven from their homes and jobs by such on-line harassment, because of the high risk of incitement to physical violence. Maybe that‘s fine, on the theory that, so long as the state creates a content-neutral framework of entitlements, private persons’ use of social sanctions against each other will reach a speech-optimizing equlibrium by some invisible hand of internet social norms. All of those private speech-deterring activities — e..g, Donegan‘s anonymously publishing lists of names of malefactors, alt-right and others‘ organizing harassment campaigns against people like Donegan, inciting Twitter mobs to pressure magazines against running stories — will work out to deter just the right sort and amount of speech. Anarchy will be the best process for reaching the best end-state of speech.

Maybe. But why, aside from empty slogans unsupported by data or theory, would anyone believe that this is so?

Posted by: Rick Hills | Jan 14, 2018 3:25:21 PM

The government is allowed to collect statistics--words said on the internet, abortions performed, guns sold. The right of anonymity means our names cannot be connected to those words, or to the abortions, or to the guns. That is, no internet-commentator registrations, no abortion registrations, no gun registrations. We have a right to live our life without the government knowing "intimate" details about us--what we say, what medical procedures we've had, what guns we own--or anything else protected by the bill of rights.

Posted by: Registration leads to genocide | Jan 14, 2018 1:18:36 PM

We all agree that doctors can be required to report the number of abortions they perform, right? Just as a firearms dealer can be required to report the number of firearms they sell.

The right of anonymity means that the doctors can't say who they performed abortions on, just as the firearms dealer can't say who bought the firearms. Or, the right of anonymity means that women can't be required to tell the government they've had an abortion (what medical procedures they've had), just as a gun-owner can't be required to tell the government they've bought a gun (what guns they own).

Posted by: RickRoll | Jan 14, 2018 1:12:19 PM

Perhaps trespass law's effects on speech are so incidental and randomly/neutrally dispersed, like the hypothetical law against speeding that stops a reporter from reporting the news in O'Connor's opinion in Arcara, that the Court couldn't see any First Amendment issue at all and mislabeled the absence of one as a state-action holding. Defamation's quite different in that way. Alternatively, I guess you could say that defamation law itself regulates speech, but in trespass, the only regulation of speech is made by the property owner who selectively employs his rights against trespassers to exclude people speaking in ways he doesn't like. I don't know that that works and it may just be a way of saying that defamation isn't content-neutral and trespass is, but I could see an argument that trespass, like speeding laws perhaps, isn't even a content-neutral regulation of speech.

Posted by: Asher Steinberg | Jan 14, 2018 1:03:13 PM

"lynch someone"

A particularly harsh term to use.

The first definition that popped up for "doxxing," e.g., is "search for and publish private or identifying information about (a particular individual) on the Internet, typically with malicious intent."

That can cover a lot of ground. The term "lynch" to me sounds like harassment. Harassment is addressed by certain laws. If we are talking about release of "identifying information," yes, that often is generally protected. My name, address and phone number, e.g., can be posted on the Internet. Something like medical information would be more private, I gather, and potentially subject to tort action at least. One way to reduce doxxing is for online platforms to themselves not allow it.

As to state action, unclear how much protection people have from identifying information being released, even wrongful information, given cases like Paul v. Davis.

Posted by: Joe | Jan 14, 2018 11:16:07 AM

Brad writes: “It seems odd and inaccurate to say that they have no intelligible theory of state action when they have a very reasonable theory of state action—one that requires state action.”

My students would be grateful to you, Brad, if you could succinctly lay out that “very reasonable theory” of “state action” that (for instance) explains why there is no state action in cases of trespass (Bell v. Maryland, https://supreme.justia.com/cases/federal/us/378/226/case.html, NLRB v Hudgens, https://www.law.cornell.edu/supremecourt/text/424/507 ) but there is state action when courts enforce the tort of defamation (NY Times v. Sullivan). For an interesting discussion of “state action” in NYT v Sullivan that goes beyond tautology, see Cristina Carmody Tilley’s “Tort, Speech, and the Dubious Alchemy of State Action,” http://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=1557&context=jcl

Posted by: Rick Hills | Jan 14, 2018 8:55:20 AM

BTW I’d love to see a concrete definition of dox. It practice it seems to mean ‘violates the vague and ever shifting norms of the internet”.

Once upon a time newspapers did investigative reporting that included bringing attention to until-that-point obscure people and/or actions. No one called it doxxing.

Posted by: Brad | Jan 14, 2018 8:10:12 AM

It seems odd and inaccurate to say that they have no intelligible theory of state action when they have a very reasonable theory of state action—one that requires state action. It isn’t SCOTUS’, the Constitution’s, or even the law in general’s job to bring about the perfect society.

The free speech doctrine is designed to deal with one very specific and important program, viz. preventing governments with their monopolies on the legitimate use of force, abusing that monopoly to control what people can and can’t say.

To they extent there are other problems, like twitter “mobs” doing whatever it is virtual mobs do (virtual tar and feathering?), complaining that our free speech doctrine and rules don’t help with it is like complaining that a hammer is useless for tightening a nut. It isn’t supposed to.

Posted by: Brad | Jan 14, 2018 8:05:28 AM

Thanks for that post , the respectable author of the post , is sure , that anonymity implies in fact , that there is nothing behind it or behind the commenter . That is not so correct !! This is because , one must draw distinction , between the anonymous name presented in the message , and the consistent and coherent virtual figure , emerging out of it . That is to say , that if a person , and always the same person ( real figure , flesh and blood ) is adopting the same concrete identifiable name ( for example : " Max the warier " ) we can clearly then , identify : coherent , consistent features ( in ideological terms , and mental terms ) . So , once , that is what encouraged as a norm ( by bloggers for example ) it is finally , obliging the virtual figure to certain set of consistent and coherent and fair behavior ( he can't wildly hide behind the curtain of anonymity ) on the other hand :

He becomes , in conceptual terms : more visible , more transparent , more concrete or subject for counterattacks ( or compliments on the other hand ) . It has more than certain influence and effectiveness . Good start , for more " regulated market " ( of ideas ) and less vicious and cruel and senseless attacks .


Posted by: El roam | Jan 14, 2018 7:38:23 AM

Sometimes when there's no legal remedy, people's private actions are better than the legal penalty anyway. Nothing Hillary did was illegal, so Wikileaks released her e-mails causing her to lose the election. If she had broken the law she probably would've just got a slap on the wrist and won the election, but instead wikileaks had to show her themselves that there were consequences for her actions. Wikileaks actions were far better than any legal remedy could've been under the then-current DOJ.

Posted by: Julian A. | Jan 13, 2018 11:42:59 PM

If doxxing is a form of news reporting protected under freedom-of-the-press, wouldn't punishing someone for it be censorship? And isn't censorship a form of (psychological) slavery?

Posted by: Evening Post | Jan 13, 2018 11:10:42 PM

If someone reveals someoneelse's vote, that's a violation of their right to anonymity, right? So why isn't any other first amendment expressive activity protected?

If doxing was illegal, could someone sue someone for knocking their halloween costume off or revealing their secret santa?

Posted by: Galadrial | Jan 13, 2018 10:53:47 PM

Let's imagine another right exercised anonymously. Let's say I'm carrying a gun concealed (anonymously), and someone comes along and flips up my coat and shows everyone that i'm carrying a gun. They've doxxed me. Have they violated my right of anonymity/privacy and do I deserve compensation?

What if I go get an abortion and someone puts my medical records online? They've doxxed me. Has my right of anonymity/privacy been violated?

Posted by: Dutiful | Jan 13, 2018 9:53:36 PM

You are free to exercise your free speech anonymously, but you do not have a right to remain anonymous that requires a (financial) remedy if you are doxxed. Just like you are free to get an abortion (or any other medical procedure), but you can't force someone to perform an abortion on you. No one has a duty to keep anonymous people anonymous just as no one has a duty to perform abortions.

Posted by: Dutiful | Jan 13, 2018 9:50:03 PM

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