Anonymity, and Free Speech, and the American Tradition

Professor Newquist's recent reply to me presents a strong case, but my Keloland colleague seems to see only one side of the question. We agree that people have a right to be protected against defamation and that this right requires that violators be held responsible for abuses of freedom of speech. Whether this is among the unalienable rights that the Founders recognized is more problematic.

But sometimes the protection of one right is limited by another, or by legal procedure, as when a murderer goes free (perhaps to kill again) because he cannot be subject to double jeopardy, or because the evidence needed to convict him was excluded from court.

The question here is whether protecting people from defamation is worth requiring the abolition of anonymity in speech and writing.

Professor Newquist says this, in reply to my post:

The idea that holding people accountable for their words chills open discussion is nonsense. It destroys open discussion. The First Amendment was not conceived as a protection of cowardice and insidiousness. Those speakers who fear responses to their words and wish to throw missiles and cower behind a mangled First Amendment, we cite another cliche: if you can't stand the heat, stay out of the kitchen. Or in the language of the blogosphere, if you can't accept responsibility for your words, just STFU. Communication involves a message from a sender to a receiver and back again. An interpretation of the First Amendment that protects anonymous speech is an interpretation that subverts the whole idea of robust dialogue.

This flies in the face of much recent liberal thinking on freedom of the press, for example. Many reporters have gone to jail rather than reveal anonymous sources. I am not convinced that such sources are protected by the Constitution, but it is hardly nonsense to think protecting such anonymity makes it easier for reporters to get sources to talk. There is a good case to be made for shield laws that protect journalists and their anonymous sources.

Likewise, I do not think that the right to post anonymously or to allow anonymous posts is protected by the Constitution, though I am not at all sure how the Supreme Court would come down on that. But I am quite sure that internet anonymity does encourage robust dialogue. Consider the case of someone who wishes to weigh in on the subject of gay marriage on my blog, but doesn't want his neighbors to know who he is lest they begin wondering about why he remains so long a bachelor. I think protecting his anonymity is a reasonable price to pay for encouraging him to join in the conversation. Professor Newquist's response to him is to shut the f**k up.

Professor Newquist links to a case which is very interesting. From the New York Times:

It occurred to Anne Mitchell as she was writing the letter that she might lose her job, which is why she chose not to sign it. But it was beyond her conception that she would be indicted and threatened with 10 years in prison for doing what she knew a nurse must: inform state regulators that a doctor at her rural hospital was practicing bad medicine.

Judging from the reporting at the Times and on NPR, it looks like Nurse Mitchell was doing the right thing and acting in the best interests of this doctor's patients when she set out to alert authorities about the doctor's questionable practices. But he had the ear of a powerful local sheriff, and now she is being prosecuted under a law prohibiting "the misuse of official information."

However this comes out, it is clear that laws holding people to account for what they say and right can be used by the powerful to stifle dissenting voices. As I pointed out, internet anonymity is vital to the dissident movements in Iran and China. Why else did the Chinese Government and Google come into conflict? People have less to fear in these United States, but as Ms. Mitchell's case show, that doesn't mean they have nothing to fear.

I am not saying that there should be no protections against defamation or that no person should be held to account for his speech and writing. But I do think internet anonymity is a valuable protection for dissenters here as in more repressive regimes. When someone writes publically, as David and I do, in our own names, we take responsibility for what we say and for that reason what we say can be taken more seriously than anonymous voices. David, however, refuses to acknowledge that there can be legitimate motives for remaining anonymous, and this does a disservice to a lot of internet heroes around the world.

It also does a disservice to those champions of unalienable rights, the American Founders. A lot of the finest American rhetoric was published under pseudonyms. What was a necessity during the revolution became a standard practice in the early years of the Republic. Over forty of those who wrote during the debates over the Constitution wrote under pseudonyms like "An American Farmer," or "Cato" or "an Officer of the Late Continental Army." The greatest commentary on the Constitution was written by three men (Alexander Hamilton, James Madison, and John Jay) who published under the name of Publius.

Contrary to what my colleague seems to think, anonymous political speech as been part of the American political tradition from the beginning. I stand with the Founders.

Comments

[a neighbor from Iowa]

On your point about whether anonymous speech is protected by the First Amendment -- it is. The US Supreme Court has affirmed this in a few cases (Buckley, McIntyre, NAACP v. Alabama) and has indicated that these protections extend to the Internet (Reno). In supporting this interpretation, the Court relied heavily on the same point you raised: the Founders themselves used pseudonyms as they expressed novel or opposing views, and they recognized the critical importance of their ability to do so.

The Supreme Court has also made clear that the right to anonymity is not absolute. Thus, even with this constitutionally-based right, you end up back where you started, that is, back with the question of how this right should be balanced against other conflicting rights? Courts have been struggling with this analysis in the online world for about a decade now. (See, e.g., page 5+ of this article: http://www.lskslaw.com/documents/CL_26-3_JULY2009_KISSINGER-LARSEN2.PDF.)

[KB]

Thanks for the tip, neighbor. I expect that the Court will see fit to provide some protection for anonymity.

[Springy]

Perhaps those individuals whose opinions are similar to Newquist would do a service to themselves to review the Federalist Papers. And answer why even those intelligent and intrepid people chose anonymity to express their support for our Constitution. Would Newquist tell Madison and Hamilton to STFO.

[P. Chirry]

"I am not saying that there should be no protections against defamation or that no person should be held to account for his speech and writing."

Why not?

Why is 'defamation' something we need to be protected against by the government? Clearly it is not a violation of our right to life or liberty. As for the right to property, is a man's reputation truly his 'property'? Surely no man can claim to own the thoughts and opinions of other men.

It is true that a man may suffer when his reputation becomes unduly tarnished, but is this justification enough to criminalize speech which 'defames' him? A businessman also suffers when he is forced out of business by a more efficient competitor. Surely the government should not criminalize competition merely because it may cause a man to suffer. Why should it criminalize "defaming" speech?

Now I agree that a person "should be held to account for his speech and writing" but this can happen in other ways than to criminalize speech. Website owners are perfectly capable of censoring or condemning defamative content themselves. Website owners who refuse to can be condemned for this by other website owners. If you ask me, right now people have become all too accustomed to believing whatever they read because they assume that if it wasn't, the author would be sued for libel. If defamation were legalized, people might be more thoughtful in their reading.

Besides, the court system would be clogged enough even without these pesky, subjective libel and slander suits, don't you think?

[P. Chirry]

Yipes, that last comment was quite overdue. I clicked to this post from your more recent one and commented thinking that this one was the newer one.