First, a thank you to John Ziegler who’s piece on the CNN blackmail scandal sparked me back to my neglected blog; unfortunately that’s due to a strong belief that he is dangerously wrong on this issue. CNN’s behavior should shock and outrage everyone of any political stripe. While there may or may not be a legal case to be made against CNN, an argument can certainly be made that they violated the civil rights of the anonymous forum poster.
It shouldn’t be required, but I feel it necessary to begin with a discussion on freedom of speech and the internet. The idea that “the best thing about the internet is anyone can say anything; the worst thing about the internet is anyone can say anything” was once ubiquitous but now seems to have become taboo. Yet simply because some people are saying things many may not like, or because an election went a way some may not have preferred, is no reason to suddenly begin curtailing free speech. And your right is certainly no less present simply because the technology changed from a pamphlet to a smart phone. Even more so when it comes to political speech. While the method, content, or, some might argue, the intellect of the speech may be vastly different, in principle there is no difference between an internet forum and Paine’s pamphlets or The Federalist Papers:
“An attempt to connect the societal and cultural value of the Federalist Papers with much of what we read online these days may strike some as outrageous. It is not. After all, the marketplace of ideas paradigm upon which the First Amendment is based places decisions about which messages have value on individuals, rather than on the state. The Constitution protects anonymous speech, posted online or otherwise, regardless of whether the speech is culturally cherished or commonly despised. As one scholar stated, ‘For better or worse, courts have compared the smearing Internet troll to the founding era’s pseudonymous pamphleteer and found them to share much in common.'”
Or, put another way, if the KKK have a Constitutional Right to march in Skokie, if even the inflammatory rhetoric of a Klan leader is protected speech, then so are gatherings of trolls in forums and postings of frog memes and video clips. For the Right to be consistent on this then we must be free speech absolutists; we cannot begin to slide down the slope as the Left has to arrive at a place wherein the speaker is free only they do not offend the hearer. You cannot have a little bit of a Right to freedom of speech. You either have it, or you have tribunals fining comedians and convicting politicians for insulting people. (And before you begin shouting fire in a crowded theater, may I suggest a little light reading.)
Which is why it is disturbing when Professor Park notes, on the issue of anonymity:
“Most of the legal literature on anonymous speech shares one common assumption – the advent of the Internet has increased the complexity of these cases. The world today is vastly different from that in which Hamilton and Madison distributed their anonymous pamphlets. In fact, many scholars believe that the issues raised by online speech can no longer be justified by traditional justifications that protect anonymity.”
In Tally v California, the Court held anonymity was a key and protected component of the Right to freedom of expression and Justice Black cited the stark historical reasons which lent creedence this decision:
“There can be no doubt that such an identification requirement would tend to restrict freedom to distribute information, and thereby freedom of expression.
“Liberty of circulating is as essential to that freedom as liberty of publishing; indeed, without the circulation, the publication would be of little value.” Lovell v. Griffin, 303 U.S. at 303 U. S. 452.
Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind. Persecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all. The obnoxious press licensing law of England, which was also enforced on the Colonies, was due in part to the knowledge that exposure of the names of printers, writers and distributors would lessen the circulation of literature critical of the government. The old seditious libel cases in England show the lengths to which government had to go to find out who was responsible for books that were obnoxious to the rulers. John Lilburne was whipped, pilloried, and fined for refusing to answer questions designed to get evidence to convict him or someone else for the secret distribution of books in England. Two Puritan Ministers, John Penry and John Udal, were sentenced to death on charges that they were responsible for writing, printing or publishing books. Before the Revolutionary War colonial patriots frequently had to conceal their authorship or distribution of literature that easily could have brought down on them prosecutions by English-controlled courts. Along about that time, the Letters of Junius were written, and the identity of their author is unknown to this day. Even the Federalist Papers, written in favor of the adoption of our Constitution, were published under fictitious names. It is plain that anonymity has sometimes been assumed for the most constructive purposes.”
It defies logic to think the method of transmission somehow negates these protections. Moreover, one would be hard pressed to assert the need for these protections are somehow no longer valid. While, in the West at least, a dissenter no longer worries about literal pillories and whippings, the virtual sort are alive and well. Real world consequences to unpopular speech abound. Jon Ronson wrote an entire book on the subject and the title, So You’ve Been Publicly Shamed, is rather misleading since many of the examples weren’t shamed but completely destroyed:
“She tweeted the picture to her 9,209 followers with the caption: “Not cool. Jokes about . . . ‘big’ dongles right behind me.” Ten minutes later, he and his friend were taken into a quiet room at the conference and asked to explain themselves. A day later, his boss called him into his office, and he was fired.
“I packed up all my stuff in a box,” he told me. (Like Stone and Sacco, he had never before talked on the record about what happened to him. He spoke on the condition of anonymity to avoid further damaging his career.) “I went outside to call my wife. I’m not one to shed tears, but” — he paused — “when I got in the car with my wife I just. . . . I’ve got three kids. Getting fired was terrifying.”
The woman who took the photograph, Adria Richards, soon felt the wrath of the crowd herself. The man responsible for the dongle joke had posted about losing his job on Hacker News, an online forum popular with developers. This led to a backlash from the other end of the political spectrum. So-called men’s rights activists and anonymous trolls bombarded Richards with death threats on Twitter and Facebook. Someone tweeted Richards’s home address along with a photograph of a beheaded woman with duct tape over her mouth. Fearing for her life, she left her home, sleeping on friends’ couches for the remainder of the year.
Next, her employer’s website went down. Someone had launched a DDoS attack, which overwhelms a site’s servers with repeated requests. SendGrid, her employer, was told the attacks would stop if Richards was fired. That same day she was publicly let go.
“I cried a lot during this time, journaled and escaped by watching movies,” she later said to me in an email. “SendGrid threw me under the bus. I felt betrayed. I felt abandoned. I felt ashamed. I felt rejected. I felt alone.”
So for John Ziegler to so flippantly dismiss the outrage over CNN’s behavior is sad, to put it mildly. We can’t all be successful media pundits with large followings and brand name platforms. But many still earn for a voice and feel they have something to say; whether you think what they have to say is worthwhile or approve of how they say it is wholly irrelevant. And because not everyone has the resources to stand publicly, the anonymity of internet discourse is essential. Ziegler’s piece is a thought experiment ignoring the real world. Ziegler is touting the Marquis of Queensbury rules if we dare to step into the Arena of Ideas; meanwhile our opponent is sliding into the ring wielding a chair. The overwhelming majority of us may be Nobodies, but that doesn’t mean we should have to live in fear of having our lives ruined if we deign to speak up in public.