Sunday, August 10, 2008

Anonymous Heinous Postings Directed at Two Female Yale Law School Students Lead to Revelation of Poster Identities : Free Speech Law in Need of Change

This posting follows on the heels of our previous posting about the closing of the Patry Copyright Blog.

One of our pet peeves on the Internet is anonymous posting. It is one of the main reasons that we do not allow comments to this blog - due to negative experience in doing so previously - because we do not have the time to filter out spam or comment garbage by anonymous posters.

Our experience is that anonymous posting is sadly often relied upon by a large number of cowardly people who would otherwise never post the same materials under their own identifiable name. Internet anonymity appears to give people a blank check to publish harmful materials of all kinds with impunity, especially comments about other people, but as we shall see in this case of two Yale Law students, anonymity is no guarantee against ultimate detection.

Our view is that an identifiable person's free speech should be protected (within the the normal Constitutional free speech limitations), but less so that of his or her alias. We see nothing in the US Constitution which protects free speech incognito or alter ego. The fact that (allegedly) Alexander Hamilton, James Madison, and John Jay wrote the Federalist Papers under the pseudonym Publius or that the Federalist Papers engendered anonymous comments from the Federal Farmer in rebuttal, does not mean that anonymity was thereby justified or sanctified as a core element of free speech in a democracy. Anonymous publishing yes, but vast free speech protection for that publishing, no.

Anonymous writing should of course be permitted in a free society, but the actual content which is expressed anonymously should be subject to greater judicial scrutiny and stricter legal standards because of its innate potential of inflicting harm, without the normal counterbalance of individual responsibility.

People post anonymously on the Internet because they think it gives them an advantage, otherwise they would post under their real names. By consequence, therefore, all those who are at the mercy of anonymous postings should not be left at a disadvantage in law or in fact, and must be granted countervailing power to protect THEIR rights as well.

To us, this means that anonymous postings which disparage another person or cultural group are to be treated as particularly heinous, because they are made in the expectation that legitimate rebuttal against an invisible opponent is much more difficult than an identified or identifiable foe. Indeed, the average citizen seldom has the means to track down invisible attackers who try to destroy another person's or group's reputation while at the same time not having to fear any negative consequences for themselves. This is the epitome of an unjust world.

Unfortunately, the US Supreme Court has thus far seen the anonymous free speech issue somewhat differently, focusing primarily on political speech, rather than on everyday speech, even though the latter is far more common and involves a different set of issues (see Anonymity at the EFF). As written in McIntyre v. Ohio Elections:

Protections for anonymous speech are vital to democratic discourse. Allowing dissenters to shield their identities frees them to express critical, minority views . . . Anonymity is a shield from the tyranny of the majority. . . . It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation . . . at the hand of an intolerant society.
Our first impression upon reading that opinion by Justice Stevens is intellectual astonishment, giving way to dismay. Is that why violent demonstrators mummify their heads entirely so as to avoid identification, as they engage in senseless destruction and violence? The Supreme Court in that quotation is long on theory and short on reality.

First of all, as to the need for anonymous political speech in the USA, if a man or a woman is unable in American society to express his or her political opinions openly, without the fear of tyranny of the majority, then there is in fact no free political speech in American society, and it is a fata morgana. Free speech means free speech WITHOUT anonymity, dear Justices.

Secondly, what the Supreme Court writes about political dissent has no application to the ruin of individual reputations on the Internet by anonymous posters. Indeed, the much acclaimed right of political dissent as a justification for anonymous free speech is not a specific mark of democracy by any means. It is, quite the contrary, the principle means available for dissent in TYRANNICAL countries, not in democracies. People resort to anonymity in political speech - in many countries outside the USA - as a NECESSITY, because they can not speak openly.

The US Constitution envisioned that a citizen SHOULD BE free to speak his mind and express himself openly about politics in the context of democratic society, without fear of retaliation, if that speech is lawful. The reality of life, however, is that - for most people - you better learn to keep your mouth shut if you want to get ahead in life and be an accepted member of society - or, the tyranny of the majority will indeed be brought to bear upon you, anonymity or no.

But "political speech" is an entirely different issue from "everyday speech".


Our view is that anonymous Internet postings involving everyday speech should be protected as free speech ONLY if there is a compelling and socially-supportable reason for anonymity in a particular case .

But such cases are in fact quite rare. Quite the contrary, the mass of anonymous posters uses anonymous aliases not to publish political dissent but rather as a coverup for their incognito and alter ego acts on the Internet. Indeed, they often publish that everyday speech in a manner that they would never dare to do under their own name. Here, in the case of everyday speech, the freedom of anonymity gives people the ability to act irresponsibly, without fear of detection and without being called to answer for their deeds. This is the opposite of democracy.

Everyday speech must thus be judged by different standards than political speech.

The running case of two libelled female Yale Law Students is a case in point, where heinous anonymous postings about them most certainly harmed them seriously during their period of law school education, and may also have harmed them in its aftermath. There is a curious posting at the Volokh Conspiracy about this case, which regrettably gets off on an obscure personal tangent, rather than concentrating on the important core issues.

As written cogently at Wired by Ryan Singel:

"Ann Bartow, an associate professor at the University of South Carolina School of Law ... believes the problem lies in technology outstripping the law and our cultural responses. George Washington University Law Professor Daniel Solove, who's been thinking about the issue long enough to have written a book called The Future of Reputation, agrees. He says the law needs to change.

"The internet isn't a radical-free zone where you can hurt people. But on the other hand, we can't have everyone rushing to the court, because the court is a blunt tool," Solove says. "We need something to help shape norms -- there needs to be some kind of push back against the notion that the internet is a place where you can say what you want and screw the consequences. That's not what free speech is about." [emphasis and links added by LawPundit]

Amen, Professor Solove, Amen.

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