On 12/4/10, Steve Hoersting <hoersting@gmail.com> wrote:
Paul Lehto pens a thoughtful post—too thoughtful, perhaps, for the casual
skimmer to get his head around. I commend him.
In his discussion, however, on the costs of anonymity, which Paul writes are
increases in “anti-social” behavior, he fails to address one key
consideration. What about the "cost" in a minority being deterred or
damaged by the retribution that can flow from compelled disclosure? How
much should this cost weigh?
Thank you for the thoughtful response. To your first question, I'd
say that how much "retribution" should weigh is utterly dependent on
individual facts and circumstances. We ALL - each and every one of us
- take risks ranging from murder to defamation to nearly any other bad
thing one can imagine, and all we have are ex post remedies under law
to sue under, if we have a claim at all. In an appropriate
"retribution" case a restraining order can be obtained or other
injunctive relief. But the argument for anonymity in the usual form
it takes constitutes a prior restraint in favor of
secrecy/anonymity/un-accountability. As such, it is extraordinary,
particularly in the First Amendment context. So my answer is that
there are adequate remedies at law such that a law (amounting in
effect to a global prior restraint injunction against contact or any
possible illegal retribution via anonymity laws) is quite improper.
And by "adequate" I mean that if it is good enough for murder and
everything else in that we wait for the crime or wrong to occur and
THEN sue or respond, then it is certainly good enough for
"retribution."
But, even if it is not deemed good enough and this hyped fear of
retribution is given special treatment and special seriousness, then
in that case the public interest in ethical accountability of speech
and promotion of civil discourse would still outweigh, in my opinion,
the retribution interest. It amounts to democracy vs. a few
individuals who have the remedy of restraining orders, the civil and
criminal laws, and so forth.
If we take seriously, as I think any person favoring a democracy or
republic must, that the people are the sovereign but only in the
exercise of the franchise when they delegate their power, it is absurd
to suggest that any one can lobby or speak the sovereign (the people
as voters) and disguise or conceal their identity, just as it is
absurd to think any one could do the same if the sovereign were a king
or queen. Given this consideration of elections as sui generis
exercise of sovereign power, the tale of the Ring of Gyges is
particularly trenchant, for not only does Plato say the invisible
person (whether just or unjust) would kill the king and usurp the
throne but that both would be FOOLS NOT TO.
Of course, someone may argue against Plato in this regard, but on the
strength of Plato's argument we can certainly expect it will operate
to reinforce the "rightness" of unethical behavior among those allowed
to be "invisible" in Plato's terms, or anonymous in our contemporary
debate.
It wasn’t until I got around to reading his sources that I understood why
Paul might downplay the concern I would make central. Paul appears to be a
communitarian. I am classical liberal.
I deliberately selected sources all over the map. Plato is not
friendly to democracy nor communitarianism. I can provide dozens more
sources from very disparate thinkers on the damaging and destroying
properties of secrecy in government in any but the most necessary and
restricted forms (e.g. national security at its core).
My "client" or my "agenda" or my "bias" if you must is simply this:
Democracy. Self-government must include the right of the people to
elect or enact very stupid people or things, because without the
freedom to make mistakes one is not free at all, one is being managed.
So, my point of view I defend here is not one bit hostile to
communitarianism, nor is it hostile to individualistic laissez faire
policy, PROVIDED the democratic processes are properly gone through in
a free and fair election. Democracy is a big tent, big enough for
pure capitalism or pure socialism, if the people freely choose that.
I'll omit the many references I could make that something akin to
communitarianism was supported/intended by parties as diverse as
post-Awakening Calvinists in the period following 1750 to Franklin and
Jefferson. Such arguments, if made, might be right or might be wrong
but in all cases are overridden and mooted by the more important fact
that free elections were established in which all of these policies,
save inalienable rights, could be freely changed or overridden.
But thanks again for your thoughtful reply. I only reiterate that I
deliberately selected thinkers from a broad range including a majority
that I would seriously disagree overall with, to point to the
extremely broad agreement among political philosophers over the
millenia that anonymity/secrecy has powers and consequences that are
both inconsistent with a true recognition that We the People are the
sovereign as voters. Being inconsistent with the few minimal but
absolutely necessary prerequisites for free self-government,
anonymity/secrecy must fall to the highest possible law/policy/public
interest in free elections, or elections free from force, fraud, and
undue influence.
Paul Lehto, J.D.
PS Politicians take a real risk of assassination and assault for
exercising their First Amendment freedoms. It's unavoidable for them,
but I don't see why a set of rich political contributors should be set
out as a special class and given privileged treatment, even if we
assume for the sake of argument that the retribution they face
includes an assassination and assault risk greater than that which
politicians daily face, which seems quite unlikely to actually be the
case.
----------------end--------------------
Where classical liberals “construe communities as originating from the
voluntary acts of pre-community individuals,
[communitarians<http://en.wikipedia.org/wiki/Communitarianism>]
emphasize the role of the community in defining and shaping
individuals. Communitarians
believe that the value of community is not sufficiently recognized in
[classical] liberal theories of justice.”
Paul, I presume, might, in most things, agree with the writings of Justice
Stephen Breyer, who has said there is little to fear from government for it
is “merely *us* trying to solve *our* problems.” On this view, "us" more
seems an organic whole than a collection of individuals.
Paul also cites Plato. But Plato
believed<http://www.ron-turner.com/epistemology.html>individuals, you
and I, can’t apprehend reality unaided.
We can’t do it on our own: “The things one sees and touches are imperfect
copies of the pure forms studied by philosophers.” It is this philosophy,
taken to heart, that today has Paul’s beloved Michigan, fading Mecca to
tradesmen and inventors, falling down around him. (The same happens in my
Ohio).
Paul cites Bentham. But Bentham
<http://www.friesian.com/bentham.htm>rejected “the dominant British
natural rights tradition that went back at
least to John Locke and in Bentham's own lifetime had been embodied in the
United States Constitution.” To Bentham, individual rights are “Nonsense on
stilts."
I can’t help wondering what MLK and his allies would have thought of
Bentham’s formulation, "nonsense on stilts," or of the supposed "costs" of
anonymity while spending enormous sums to fight community norms in the
1960s.
In 2007, two professors
wrote<http://people.bu.edu/dilipm/publications/qjpsnorms08.pdf>that
the problem with communitarian (over universalistic) norms is that
“communitarian norms hurt minorities the most, and the advantages of
universalism become more pronounced the more ascriptively fragmented a
society is or the smaller is the minority group.”
To Paul’s Bentham, I suggest Locke. To his Plato, I suggest Aristotle. To
his JFK, RWR <http://www.youtube.com/watch?v=yiO-RBHy6X0>.
Those still skimming this post—even good friends of mine—are now no doubt
asking, *What in the world does any of this have to with really important
stuff, like Romney versus Pawlenty versus Gingrich in 2012?*
The answer is: everything. (Even Gingrich now says the foremost question is
what *kind* of government should now replace Pelosi's).
It is the question whether the United States can be a Republic or must
become an Empire—an issue any kid watching *Star Wars* can get his head
around.
And, speaking of that famous kids’ saga (and keeping with the topic of
anonymity and disclosure), the second half of this Bloomberg
article<http://www.bloomberg.com/news/2010-12-03/fed-created-conflicts-in-improvising-3-3-trillion-financial-system-rescue.html>—on
where TARP and TALP went and why—makes it fair for anyone with an
understanding of events to question whether a construct akin to the saga’s
rightly dreaded “Trade Federation” isn’t now being constructed on the
American left).
Best,
Steve Hoersting
On Wed, Dec 1, 2010 at 9:44 PM, Paul Lehto <lehto.paul@gmail.com> wrote:
On 12/1/10, Jim Gardner <jgard@buffalo.edu> wrote:
Regarding Rick's query in the item below:
"Psychological research has proven again and again that anonymity
increases
unethical behavior."
[snip]
My reading of the
literature is that the effect of anonymity on behavior is highly
contingent
and context-dependent, meaning that sometimes it encourages antisocial
behavior but sometimes it encourages prosocial behavior. As a result,
it
is
very difficult to make a priori judgments about the impact of anonymity
in
any particular setting.
It is not difficult at all to figure out the effect of anonymity in
campaign finance and advertising is quite negative based on common
sense of normal observation, regardless of the alleged fact that we
can't predict the exact mix of prosocial or antisocial/unethical
behavior that is fostered by anonymity:
1. At costume parties, the lack of accountability provided by most
costumes allows acting out less socially acceptable behavior overall,
even if a few become more virtuous somehow.
2. In political advertising, One, or a few, rotten apples in the form
of negative ad campaigns spoils the whole barrel. Even if we can't
predict an exact mix of antisocial and prosocial behavior that is
enabled by anonymity, we can still safely predict the end result.
3. Similarly, on the internet, or even on this list, just a few
"trolls" or virulent posts within a thread can ruin for many a thread
of otherwise substantive content, causing people to turn away from the
"prosocial" content in the thread containing "flames" or what have
you.
4. Realizing that we speak of the level of ethics and not law per se,
Benjamin Franklin's famous saying can be applied to anonymity/secrecy:
"He'll cheat without scruple who can without fear [of being caught]."
The fields that have critiqued or rejected anonymity/secrecy is by no
means limited to the field of psychology. (the links in the NY Times
article go to literature in the area)
Just for starters, political theorists have consistently rejected
anonymity as a political value (or, in the case of Plato, shown it to
be unacceptable where it exists). Starting with the distinctly
non-democratic philosopher Plato, who showed that invisibility
(anonymity) would guarantee victory for the unjust man (any "just man"
engaging in the behavior of the unjust man below would become an
unjust man). Plato's "Ring of Gyges" can be summarized as follows in
this quote from a secondary source:
"Glaucon recounts the tale of Gyges, a shepherd in the service of the
King of Lydia, who finds a marvelous ring that confers upon the wearer
the power to become invisible and do things secretly. In short order,
Gyges uses the power of the ring to enter the palace, seduce the
Queen, kill the King and usurp the throne. Plato suggests that if a
just and unjust man were each to possess such a ring possessing powers
of unaccountability, they would both use it to commit injustices, and
that anyone who acted otherwise would be a fool." (Quotation
summarizing "The Ring of Gyges" from "This is Not a Book", p. 51)
Harry S. Truman: "Secrecy and a free, democratic government don't mix."
John F. Kennedy, perhaps applicable to nondisclosing (c)(4) "secret
societies":
"The very word 'secrecy' is repugnant in a free and open society; and
we are as a people inherently and historically opposed to secret
societies, to secret oaths, and to secret proceedings."
Re: The Judiciary: "Without publicity, all other checks are
insufficient: in comparison of publicity, all other checks are of
small account. Recordation, appeal, whatever other institutions might
present themselves in the character of checks, would be found to
operate rather as cloaks than checks; as cloaks in reality, as checks
only in appearance." Bentham also emphasized that open proceedings
enhanced the performance of all involved, protected the judge from
imputations of dishonesty, and served to educate the public. Rationale
of Judicial Evidence at 522-525.
Joseph Pulitzer: "We are a democracy, and there is only one way to get
a democracy on its feet in the matter of its individual, its social,
its municipal, its state, its national conduct, and that is by keeping
the public informed about what is going on. There is not a crime,
there is not a dodge, there is not a trick, there is not a swindle,
there is not a vice which does not live by secrecy. Get these things
out in the open, describe them, attack them, ridicule them in the
press, and sooner or later public opinion will sweep them away . . .
publicity may not be the only thing that is needed, but it is the one
thing without which all other agencies will fail."
The core thing about secrecy in any form, whether anonymity or
otherwise, is the lack of accountability. And there definitely is a
legitimate accountability in social intercourse that acts
affirmatively to ennoble and improve the discourse. Those exposed by
Wikileaks would have spoken differently and more politely had they
known their cables would be published. Countless other examples
obtain.
Paul Lehto, J.D.
I need to make some corrections before I post the draft on SSRN, which I
hope to do by the end of the month. But if anyone would like a copy of
the
preliminary version feel free to contact me off-list and I'd be happy to
provide it.
Jim
Paul Lehto, J.D.
P.O. Box 1
Ishpeming, MI 49849
lehto.paul@gmail.com
906-204-4026 (cell)
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Paul R Lehto, J.D.
P.O. Box 1
Ishpeming, MI 49849
lehto.paul@gmail.com
906-204-4026 (cell)
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