| Subject: Re: [EL] The limits of "anti-harassment laws" as means for protecting anonymity |
| From: "Volokh, Eugene" <VOLOKH@law.ucla.edu> |
| Date: 4/7/2011, 11:20 AM |
| To: "election-law@mailman.lls.edu" <election-law@mailman.lls.edu> |
I'm not sure how the argument below works. First, I don't see any basis for thinking that the right to free speech requires that there be someone "to talk back to." Usually, when A is trying to persuade the public of something, and B disagrees, B's goal is to persuade the audience, not the original speaker. It’s nice to be able to persuade the original speaker, and sometimes we try to do it; but often it’s quite clear that A is pretty set in his ways, plus persuading the one speaker is usually not as valuable as persuading the whole audience. “True political discourse” is eminently possible, even commonplace, even if you can’t persuade your adversary.
For instance, happy as I would be to persuade Mr. Lehto in this exchange, I suspect that I’m unlikely to succeed; yet I’d be delighted if I persuade some of the other members of the list, and would think the “true political discourse” would have worked perfectly well. Likewise, if I learn that Paul Lehto isn’t actually the other person’s real name (not that I’m saying it isn’t; just bear with me for the hypothetical), and – a separate matter from anonymity – if he refuses to respond to anything I say (again, not so, but consider it as a hypothetical), I won’t say “Rats! It was one-way speech all along, there was no-one to talk back to, and I can’t have true political discourse as a result.” I’d just be happy that I was able to speak to the other list members.
So I see no basis for saying that speech by someone who chooses not to disclose his name – or speech by someone who refuses to respond to his critics – is at all removed from “the core of what the First Amendment seeks so protect.” Once one strips away the metaphor, anonymity doesn’t deprive rival speakers of the opportunity to engage in true political discourse, because the rival speakers remain free to respond to the audience by rebutting the anonymous speaker’s arguments. The audience will then have heard arguments from both sides, and sometimes might have heard more arguments because the anonymous speaker wasn’t chilled by the fear of boycott, loss of job opportunities, shunning by friends and family, or even violence or discrimination by government authorities. That’s very much at the core of what the First Amendment seeks to protect.
As to the mugging example, I’m not sure what I missed: Of course we don't want to have a police state; I assumed as much when I pointed out that "we can't do that much beyond having laws against mugging to stop the park attacks." My point was that there's a simple and implicit "robust explanation of why present anti-harassment laws and the like are sufficient to protect everyone else but not political speakers," even when we're talking about violent retaliation -- those laws, like all laws banning crime, are highly imperfect; allowing anonymity is thus a useful extra protection for speech, and a useful means of minimizing the deterrent effect on speech. Again, maybe the benefits of anonymity are sometimes outweighed by the costs; but the "robust explanation" that the earlier post had said was omitted is usually omitted, I think, just because it's so clear.
Eugene
> It is the very nature of the speech right and rights in general that
> they should be allowed free exercise, with prosecution or response
> based on abuse AFTERWARD, if at all. Anonymity deprives speakers of
> anybody to talk back to, there's nobody to engage in true political
> discourse with, which is the core purpose of Free Speech. Anonymity
> in nearly all cases protects only one-way speech because of the
> inability to respond (outside rare cases of newspapers publishing
> anonymous debates), and thus is not at the core of what the First
> Amendment seeks to protect.
>
> One way speech is a core element of propaganda. Two-way speech must
> not be anonymous - and it fosters the truest free speech purpose of
> political discourse leading to an informed electorate. Defeating (in
> part) the cause of true political discourse only bolsters the dumbing
> down of the electorate through reduced real discourse, and ultimately
> the charge of "dumb" voters is the very foundation of every form of
> non-democratic government. Such dummies need philosopher kings or
> iron hands to rule them...
> -----Original Message-----
> From: Paul Lehto [mailto:lehto.paul@gmail.com]
> Sent: Thursday, April 07, 2011 9:17 AM
> To: Volokh, Eugene
> Cc: election-law@mailman.lls.edu
> Subject: Re: [EL] The limits of "anti-harassment laws" as means for protecting
> anonymity
>
> Eugene I'm surprised you'd miss this, or perhaps you can clarify if
> you didn't miss it:
>
> We can also "do something" about crime such as your example of
> muggings: We can institute a police state. The streets were
> essentially safe to walk in most of the old Soviet Union -- crime can
> be virtually nil if the right police state apparatus is invoked, but
> the cost to freedom is way too high and the government itself becomes
> the crime.
>
> It is the very nature of the speech right and rights in general that
> they should be allowed free exercise, with prosecution or response
> based on abuse AFTERWARD, if at all. Anonymity deprives speakers of
> anybody to talk back to, there's nobody to engage in true political
> discourse with, which is the core purpose of Free Speech. Anonymity
> in nearly all cases protects only one-way speech because of the
> inability to respond (outside rare cases of newspapers publishing
> anonymous debates), and thus is not at the core of what the First
> Amendment seeks to protect.
>
> One way speech is a core element of propaganda. Two-way speech must
> not be anonymous - and it fosters the truest free speech purpose of
> political discourse leading to an informed electorate. Defeating (in
> part) the cause of true political discourse only bolsters the dumbing
> down of the electorate through reduced real discourse, and ultimately
> the charge of "dumb" voters is the very foundation of every form of
> non-democratic government. Such dummies need philosopher kings or
> iron hands to rule them...
>
> Paul Lehto, J.D.
>
> On 4/7/11, Volokh, Eugene <VOLOKH@law.ucla.edu> wrote:
> > I'm not sure that the purported equivalences of anonymous speech
> and
> > drive-by shootings, and protections for anonymity and prior restraints are
> > helpful here. But beyond this, I'm also not sure why a "robust explanation
> > of why present anti-harassment laws and the like are sufficient to protect
> > everyone else but not political speakers" is missing. The explanation, I
> > think, has always been clear. First, if the worry is about violent attacks,
> > we know that existing laws against violent attacks are not "sufficient" to
> > deter violent attacks, or to make people feel safe about exercising their
> > liberty when threatened with violent attacks. Laws against mugging don't
> > mean that people feel safe walking in the park at night. Likewise, laws
> > against violent attacks won't mean that people will feel safe saying things
> > that might lead to violent retaliation. The difference is that we can't do
> > that much beyond having laws against mugging to stop the park attacks, so
> we
> > have to live with!
> > the deterrence of walking out at night. But we can do something about
> > violent attacks against highly controversial speakers -- we can help them be
> > anonymous.
> >
> > Second, if the worry is about economic retaliation, the fact that is
> that
> > present laws in most states don't prohibit even employment
> discrimination
> > based on political speech. A few states have such laws, but very few. And
> > no laws prohibit other economic retaliation, such as boycotts based on
> > political speech and such. Moreover, such laws will always be highly
> > underenforced, because proving that you were fired because of your
> political
> > speech is quite hard -- and proving that you weren't hired because of your
> > political speech might we well-nigh impossible. So "present anti-
> harassment
> > laws and the like" are not remotely sufficient to protect people against
> > economic retaliation for their political speech. The consequence is that
> > precluding anonymous speech will substantially deter -- perhaps massively
> > deter -- controversial statements that people might think will lead them to
> > lose job opportunities.
> >
> > Again, all this doesn't mean that anonymity must always be
> protected; maybe
> > the harms outweigh the benefits, either in general or in some cases. But
> > the limitations of "anti-harassment laws" here as means of preventing the
> > deterrence of political speech are clear. That's why anonymity does
> provide
> > a huge marginal benefit in preventing such deterrence.
> >
> > Eugene
> >
> >
> >
> > Paul Lehto writes:
> >
> >> While Kenneth Mayer's point is true and correct as a matter of law, at
> >> this point in this particular debate a First Amendment VALUE of
> >> "anonymity" is being asserted for purposes of enshrining it further as
> >> First Amendment LAW. Because the discussion at this point is about
> >> values and principles and not about present law, examples both having
> >> and not having state action are relevant to the discussion and
> >> understanding of the operation of anonymity as a first amendment
> >> value.
> >>
> >> Those examples or analogies outside the context of state action will
> >> have lesser weight (assuming the state action doctrine remains robust
> >> in First Amendment jurisprudence, unlike the 13th amendment and other
> >> parts of the Constitution that do apply directly to the private
> >> sector), but these private sector examples are not irrelevant: They
> >> represent expressions of First amendment VALUES. The example of
> >> newspapers is pertinent since they specially claim to be strong
> >> devotees of both first amendment values as well as First Amendment law
> >> - so newspaper policies of not allowing anonymous letters are
> >> "admissible" to this discussion, and each reader can find the
> >> newspaper "precedent" (on the level of values) either persuasive or
> >> hypocritical, and weight that evidence in the light of the
> >> considerations above, and any other aspects of their individual
> >> judgment.
> >>
> >> It certainly appears that newspapers, having to daily review droves of
> >> proposed letters to the editor, have noted distinct patterns in
> >> anonymous letters (as has Bev Harris below in her reviews of blog
> >> posts on her site) in which anonymous letters are much more likely to
> >> be the rhetorical equivalents of harassment and drive-by shootings,
> >> specifically because of the lack of "accountability" to others that
> >> anonymity provides.
> >>
> >> Anonymity creates more harassment than it protects from. Thus, it's
> >> strategically critical for pro-anonymity folks to lead with their
> >> somewhat inflated complaints about harassment, and to omit any robust
> >> explanation of why present anti-harassment laws and the like are
> >> sufficient to protect everyone else but not political speakers - who
> >> require the functional equivalent of a prior restraint styled as
> >> anonymity so that they may fire off their political shots freely and
> >> at will. The occasional need for moderator intervention on this and
> >> other listservs is proof positive that the high level of political
> >> discourse the First Amendment (and First Amendment values animating
> >> this list) is intended to further is harmed by anonymous "fire at
> >> will" policies.
> >
> > _______________________________________________
> > election-law mailing list
> > election-law@mailman.lls.edu
> > http://mailman.lls.edu/mailman/listinfo/election-law
> >
>
>
> --
> Paul R Lehto, J.D.
> P.O. Box 1
> Ishpeming, MI 49849
> lehto.paul@gmail.com
> 906-204-4026 (cell)