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In Defense of Anonymous Speech ~pj
Sunday, February 12 2012 @ 03:11 PM EST

Julie Zhuo, a product design manager at Facebook, wrote an opinion piece for the New York Times in November 2010, but it's the first I saw it, Where Anonymity Breeds Contempt, arguing that anonymous speech encourages trolling and so it should not be allowed in comments on the Internet:
Instead of waiting around for human nature to change, let’s start to rein in bad behavior by promoting accountability. Content providers, stop allowing anonymous comments. Moderate your comments and forums. Look into using comment services to improve the quality of engagement on your site. Ask your users to report trolls and call them out for polluting the conversation.
Anonymous comments will always be allowed on Groklaw, and I'd like to explain why. She argues that there are no free speech, privacy, or First Amendment issues with such a decision to cut off anonymous speech. But there are.

She writes:
Some may argue that denying Internet users the ability to post anonymously is a breach of their privacy and freedom of expression. But until the age of the Internet, anonymity was a rare thing. When someone spoke in public, his audience would naturally be able to see who was talking.
That's not true, unless you lived in a very small town where everyone knew everyone else. If you did, then you could spread leaflets or publish articles anonymously.

Think of the Federalist Papers, written anonymously to encourage ratification of the US Constitution. If anonymous speech is so toxic, how do you explain the Federalist Papers? A logical answer would have to be that anonymity may not be the actual cause of the problem. One of the authors, James Madison, later ended up president of the country, and it's believed that others included Alexander Hamilton and John Jay, so they were not trolls. At the time they wrote anonymously because they wanted folks to focus on the ideas, not where they came from, and because they were talking on a matter then quite controversial. You could speak anonymously back then in print, not just in person. That's a closer comparison to the Internet than standing up in a public place.

Even in person, if you went to a public square and started to speak, people could see you, but they didn't necessarily know who you were if you were in a city -- they didn't know your name, your phone, your home address, your place of employment, your family's makeup and names, where your kids went to school, and they couldn't track where you went day by day via GPS -- all of which can be done today on the Internet with just a name to start with. Nor were there widespread governmental cameras taking your picture, or even smartphones equipped with cameras. Nor were there databases retained for months, even years at a time. And the government wasn't tracking all that speech in such databases. Any policy regarding commenting on the Internet has to factor in that the world has changed to make anonymity very hard, and that once it's gone, there is a treasure trove of information about you available to whoever is interested in doing the research.

And then what might happen? Zhou argues that forcing identity to be revealed encourages accountability. Let's talk about accountability.

Accountability

Once your identity is known, it's known to everyone. Trolls are certainly annoying, but stalkers, crazed ex's on a rampage, corporations trying to bully folks into shutting up about them, and governments (think Syria or Iran or China or Malaysia) who might like to kill a speaker, torture him or her, or throw him or her in jail for life are worse. These are all real problems some experience. Here's just one case, Koch Industries v. John Does 1-25, where the court had to step in to protect anonymous free speech. Malaysia just deported a blogger back to Saudi Arabia, where it is feared he faces execution for his speech on the Internet. He is 23 years old. How can anyone responsibly plan any commenting system without thinking about these vulnerable people? -- without considering that forbidding anonymous speech means either endangering them or cutting them off from being able to speak at all? Trolls are a very small problem in comparison. Civil speech is nice, but civil behavior is more important. Saving lives trumps pleasant speech, don't you think?

EFF has a page on anonymity:

Many people don't want the things they say online to be connected with their offline identities. They may be concerned about political or economic retribution harassment or even threats to their lives. Whistleblowers report news that companies and governments would prefer to suppress; human rights workers struggle against repressive governments; parents try to create a safe way for children to explore; victims of domestic violence attempt to rebuild their lives where abusers cannot follow.

Instead of using their true names to communicate these people choose to speak using pseudonyms (assumed names) or anonymously (no name at all). For these individuals and the organizations that support them secure anonymity is critical. It may literally save lives.

Here's a case, John Doe No. 1 v. Cahill, where someone didn't like what was written, claimed defamation and sought to obtain the identity of the online commenters. One of the John Does fought back. The appeals court wouldn't allow it, and here's why:
The defendant-appellant, John Doe No.1, anonymously posted allegedly defamatory statements about the plaintiff-appellee, Cahill, on an internet blog. Cahill brought a defamation action. Seeking to serve process on Doe, Cahill sought to compel the disclosure of his identity from a third party that had the information. A Superior Court judge applied a good faith standard to test the plaintiff’s complaint and ordered the third party to disclose Doe’s identity. Doe appeals from the Superior Court’s order. Because the trial judge applied a standard insufficiently protective of Doe’s First Amendment right to speak anonymously, we reverse that judgment.
Why would that be a bad thing? The court explained:
We are concerned that setting the standard too low will chill potential posters from exercising their First Amendment right to speak anonymously. ...The possibility of losing anonymity in a future lawsuit could intimidate anonymous posters into self-censoring their comments or simply not commenting at all.
Lawsuits are brought sometimes not for money or redress but as a weapon to suppress speech or to intimidate. I've experienced that personally, so trust me, it's so. The court took into consideration that the Internet changes everything, including who is able to express ideas to the world:
The advent of the internet dramatically changed the nature of public discourse by allowing more and diverse people to engage in public debate. Unlike thirty years ago, when “many citizens [were] barred from meaningful participation in public discourse by financial or status inequalities and a relatively small number of powerful speakers [could] dominate the marketplace of ideas” the internet now allows anyone with a phone line to “become a town crier with a voice that resonates farther than it could from any soapbox.” Through the internet, speakers can bypass mainstream media to speak directly to “an audience larger and more diverse than any the Framers could have imagined.” Moreover, speakers on internet chat rooms and blogs can speak directly to other people with similar interests. A person in Alaska can have a conversation with a person in Japan about beekeeping in Bangladesh, just as easily as several Smyrna residents can have a conversation about Smyrna politics.

Internet speech is often anonymous. “Many participants in cyberspace discussions employ pseudonymous identities, and, even when a speaker chooses to reveal her real name, she may still be anonymous for all practical purposes.” For better or worse, then, “the audience must evaluate [a] speaker’s ideas based on her words alone.” “This unique feature of [the internet] promises to make public debate in cyberspace less hierarchical and discriminatory” than in the real world because it disguises status indicators such as race, class, and age.

It is clear that speech over the internet is entitled to First Amendment protection. This protection extends to anonymous internet speech. Anonymous internet speech in blogs or chat rooms in some instances can become the modern equivalent of political pamphleteering. As the United States Supreme Court recently noted, “anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and dissent.”

How do you influence others if every time you open your mouth, you risk being jailed, executed, stalked, humiliated, tortured or even just sued? Careful silence is your only protection. As I wrote in the article about Cahill, and you can read the entire ruling as text at the link:
Ben Franklin wrote anonymously sometimes too. It's an American tradition.... The prudent founding fathers coped with difficult times and intolerance with practical methods designed to protect a man's ability to keep speaking safely. The whole point of the Federalist Papers was to get readers to support the Constitution, and it worked.

So, anonymous speech in the US holds an honored place.... The very First Amendment to the Constitution says that the government has no authority to establish what is "proper" speech or to make people say things they don't believe or want to say. It was a revolutionary idea at the time, breaking completely with the European tradition....

The First Amendment applies to the government, but one can broadly apply the principle. People talk about their rights to say whatever they wish, but the true right is the right to speak honestly without being viciously attacked for it. That is the historic American tradition of free speech, that you can express your true beliefs, and there is no penalty for doing so.

The Constitution stands between the unpopular idea and any governmental entity wishing to punish anyone espousing that unpopular idea. The idea the founding fathers had is this: in a democracy, everything depends on an educated population, on a dynamic marketplace of ideas, and so protecting free expression was considered so vital, it was made a foundation legal value. They were sick of persecution and pressure to think or say anything but what they really did think or really want to say.

Those naive and privileged kids at Facebook need to grow up and realize the real and present harm they are causing by their philosophies instead of glorifying it as a method to force civility on the Internet. What an insular world they live in, if they imagine trolls are the world's biggest problem. America is not the entire world. That's if this suggestion to cut off anonymous speech is a philosophy and not just an effort to force even more personal ad tracking for *Facebook's* financial benefit, not ours. Do they think anti-SLAPP laws were created because there is no need?

Speaking of civility, the First Amendment isn't about enforcing civility. Quite the contrary. It's designed to allow the most despicable speech, from the standpoint of the majority, from the least favored, least powerful persons in society. The founding fathers came from Europe, for the most part, where they had experienced or witnessed governmental oppression against whatever group was not in favor, and they designed the Constitution in such a way as to prevent it from happening in America. America was constructed to protect individuals from the overwhelming force of government or the meanness of the majority or just the powerful.

What About The Law?

Here's an article by EPIC, the Electronic Privacy Information Center, about what anonymity is for, and it begins with a quotation from a famous case, McIntyre v. Ohio Elections Commission:

"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--and their ideas from suppression--at the hand of an intolerant society."

In three cases, spanning from 1960 to 1999, the Supreme Court has reaffirmed the principle that sacrificing anonymity "might deter perfectly peaceful discussions of public matters of importance."

Anonymity--the ability to conceal one's identity while communicating--enables the expression of political ideas, participation in the government process, membership in political associations, and the practice of religious belief without fear of government intimidation or public retaliation.

Disclosure laws have been upheld only where there is a compelling government interest at stake, such as assuring the integrity of the election process by requiring campaign contribution disclosures.

Here's that case if you'd like to read more, McIntyre v. Ohio Elections Comm'n, with the full quotation:
"Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind." Talley v. California, 362 U.S. 60, 64 (1960). Great works of literature have frequently been produced by authors writing under assumed names. Despite readers' curiosity and the public's interest in identifying the creator of a work of art, an author generally is free to decide whether or not to disclose her true identity. The decision in favor of anonymity may be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one's privacy as possible. Whatever the motivation may be, at least in the field of literary endeavor, the interest in having anonymous works enter the marketplace of ideas unquestionably outweighs any public interest in requiring disclosure as a condition of entry. Accordingly, an author's decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment....

Under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent. 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 - and their ideas from suppression - at the hand of an intolerant society."

Here's another case, ACLU v. Reno:
Cutting through the acronyms and argot that littered the hearing testimony, the Internet may fairly be regarded as a never-ending worldwide conversation. The Government may not, through the CDA, interrupt that conversation. As the most participatory form of mass speech yet developed, the Internet deserves the highest protection from governmental intrusion.

True it is that many find some of the speech on the Internet to be offensive, and amid the din of cyberspace many hear discordant voices that they regard as indecent. The absence of governmental regulation of Internet content has unquestionably produced a kind of chaos, but as one of plaintiffs' experts put it with such resonance at the hearing:

What achieved success was the very chaos that the Internet is. The strength of the Internet is that chaos.
Just as the strength of the Internet is chaos, so the strength of our liberty depends upon the chaos and cacophony of the unfettered speech the First Amendment protects.
That is the answer to what Ms. Zhou wrote.

If you loved SOPA, you'll love Facebook's vision of limiting speech on the Internet so that only those who are "civil" (and who gets to decide what that is?) can speak without fear of reprisal. It seems everyone suddenly wants to limit what can be said on the Internet, from Iran to Facebook.

Now, Facebook is not the government, so it can do what it pleases, and our remedy if we don't like it is to avoid Facebook. That's what I do. But to argue that anonymity is toxic, that it encourages speech that they don't enjoy, at the same time claiming that there is no danger to free speech or the First Amendment is childishly naive and legally incorrect.

They should probably read the Constitution at Facebook. Until they do, you'll never, ever find me on Facebook. And Groklaw will always allow anonymous commenting, even though it requires a lot of our time to deal with trolls, who are indeed annoying, but at the same time, I must say some of our most important contributions to our work at Groklaw have come from anonymous contributors, who may have any number of reasons to speak that way, including worries about retaliation.

I know I said I'd publish the text of Microsoft's Memorandum in Support of its Renewed Motion for Judgment as a Matter of Law next. But it's 137 pages long, and I'm still working on it. And the First Amendment is more important than Microsoft, so when I saw the Times piece when a reader sent it to me, my heart impelled me to speak.


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