Likelihood of Success

Ron Coleman’s pretty good blog

Anonymity and cowardice

Posted by Ron Coleman on November 14, 2007

My friend Marc Randazza commented at my other blog regarding my comments on this topic as follows:

“most anonymous commentary is simply a matter of moral cowardice”? Ron, for the love of Thor. But for anonymous commentary, I doubt we would have broken free of the British Empire. We’d all… well, we’d all be speaking ENGLISH right now!

Anonymous speech is vital to a free society, and is often the lifeblood of core political speech. The First Amendment protects an individual’s right to speak anonymously. See McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 342 (1995) (“[A]n author’s decision to remain anonymous . . . is an aspect of the freedom of speech protected by the First Amendment.”).

Why do you think that is?

Consider the fact that without anonymous speech, there would likely be no United States of America. Neither Alexander Hamilton nor Benjamin Franklin affixed their names to their missives that fed the fires of the Revolution. If they had, they likely would have perished in the hangman’s noose, or in King George’s dungeons. The Federalists and Anti-Federalists alike were forthcoming in their political debates because they were shielded by their pseudonymity.

Today, political dissidents, corporate whistle-blowers, and other guardians of liberty are shielded by their anonymous nature. Without the ability to speak anonymously, the marketplace of ideas would feel a chilling wind blow through it, and more than a few members would close up shop.

Yes, sometimes bigots, defamers, and just plan jerks hide behind the shield of anonymity. But, I’m not going to throw the baby out with the bath water.

Unfortunately, you’re not the only one who is a little bit myopic when it comes to anonymous speech. See Calling for Harm to the First Amendment.

I’m not buying it, Marc. I think you have come with an excellent exemplar of “the exception that proves the rule.” Why, you’ve had to go back over two centuries, to a time of revolution!, to find a case of meritorious, substantial and truly brave anonymous speech. After all, I said “most anonymous commentary.”

Today there are so many systems in place for people with legitimateunknown-comic.jpg whistle-blowing information to take their whistles. Political “dissidence” is a joke; it holds no personal risks whatsoever in our place and time unless perhaps you work in academia; yet these self-styled “dissidents” — mainly scofflaws, punks and tinfoil-hatters — award themselves Purple Hearts every day. Luckily their speech usually harms no one meaningfully (I do not count the victims of bad policymaking by intimidated politicians, who bear their own guilt) and in any event I believe political speech is and should be completely privileged.

On the other hand, regarding personal and commercial defamation, I’d like to see the anonymity pendulum move a little toward the rational and fair — for there is nothing unfair about asking a man to stand up for what he believes if he insists on broadcasting it to 6 billion people. I am aware of the what the Supreme Court said in 1955. I am suggesting we reconsider the question — especially in light of what the Internet has done, is doing, and will do to our society. I am not saying to change course 180 degrees, but right now, it’s virtual open season on people with reputations by people with axes to grind.

I couldn’t care less if the vast majority of participants in the marketplace of expression (the marketplace of ideas actually still does have a price of entry, but most of us don’t even know where the front door is) “close up shop,” as you say. Perhaps a few other shops that ought not to close would also remain open.

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6 Responses to “Anonymity and cowardice”

  1. I think you make a very principled and good-hearted point, my friend. Nevertheless, I must maintain my position that it is a bit myopic. My personal sympathies lie with those who find themselves victimized by anonymous speech, but my legal sympathies do not.

    I did not need to go back to 1955, nor the revolution, to seek authority for my position. Although, I do revere the founders – and stick with them when I can.

    The question of anonymous speech has been reconsidered in light of what the internet has done, and is doing. Doe v. Cahill, a Delaware Supreme Court case from 2005, has been widely accepted as the blueprint for how to handle this issue. That case held that a plaintiff in a defamation action must provide evidence sufficient to overcome a motion for summary judgment before unmasking an anonymous speaker. That seems to adequately protect both anonymity and the reputations of those who are victimized by unfair attacks.

    I disagree that political dissent holds no personal risks. Well, let me agree with you first. Your example of academia is magnificent. Although I consider myself to be politically aligned with the Kucinich end of the political spectrum, I recognize that breaking with liberal orthodoxy in academia can be professionally fatal. Picture the hapless professor law professor (at most law schools) who might disagree with critical race theorists or the MacKinnon school. Their perspective belongs in the marketplace of ideas, but I could not criticize a law professor for wishing to take these positions on under the cover of pseudonymity.

    Now, to disagree with you: Think back no further than 2002, 2003, 2004, or even later. Speaking out against the war or “our president” had significant consequences until he dropped to a 30% approval rating. There are many people who consider gay rights to be human rights (and I am one of them), but being seen as supporting the rights of homosexuals will cost you dearly in some circles. How about those who may wish to argue for atheism? In today’s America, atheists suffer far more discrimination than any other religious group. (and don’t go to the “atheism is not a religious belief” pail, you know what I mean). Knowing that you can speak anonymously enriches the marketplace of ideas — even if there is a slight (but correctable) social cost.

    Should the klansman, the nazi, the maoist, be permitted to speak anonymously? What is the value in his anonymity? I reluctantly say “yes.” I believe that when repugnant ideas are brought forth, it gives the rest of us a chance to tear them down. If the “bad man” wishes to speak anonymously because he fears repercussions, I am willing to trade his anonymity for the “good man’s” anonymity.

    Those with axes to grind are annoying. I believe that the mechanisms are in place to unmask those who are truly doing wrong to others. Those who are merely espousing pernicious views do not threaten me — because I know that my ideas (and yours) can stand in opposition to theirs.

    -Marc

  2. Irina said

    I am not against anonymity per se (although I frequently find it annoying); however, when it comes to anonymous involvement in serious legal infringements, I don’t see why the court should not have any power to enforce revealing the anonymous user’s identity, just as I don’t see why the court should not be able to get journalists to reveal their sources when not revealing them could lead to serious repercussions for other parties/society, etc. I don’t think that should be done randomly and without a good cause, but I also think that we have to find a balance between encouraging intellectual diversity, and allowing criminals to abuse freedom of speech.

  3. The court does have that power. Read this case, and see if you like the standard it employs: Doe v. Cahill.

  4. 90% of everything is crap, so I don’t doubt that most anonymous commentary is as well. Of course, quite a bit of non-anonymous speech is crap to, that doesn’t seem to me to be a very good reason to ban that either.

    And if the standard of most is what matters, then since most anonymous commentary isn’t harmful, as you freely admit, then getting rid of it doesn’t seem justified either.

    Of course no one is oppossed to ‘rational’ and ‘fair’ standards. I happen to think that it is both rational and fair to allow people to speak without demanding proof of their identity first, but perhaps if you have different ideas of random and fair, you would care to share what those would be. I can’t imagine that actually expressing what you think should be done would make your case harder to make.

  5. Here is a hell of an example of what might have been considered to be high value speech squelched by nothing more than a threat of unmasking the speaker’s anonymity. here. Shows how petty and non-free-speech-friendly liberals get when you gore their ox.

  6. […] I’ve heard many other voices calling for an end to internet anonymity. Some come from the right wing — from the perspective that free speech is harmful to the current power structure. (And some from people I really like. See my debate with Ron Coleman on this issue here. […]

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