Likelihood of Success

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 legitimate 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.