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.
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Paul R Lehto, J.D.
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