Chapter 6: Free Speech, Anonymity, and Accountability
Gossiping. Shaming. Rumor-mongering. All have pernicious effects on people's lives, yet they all involve acts of expression. When the law restricts the circulation of information, it creates potential threats to free speech. This is one of the main reasons that the law of defamation and privacy are limited in scope. If the law's goal is to restrict the spread of information when it causes harm, how can the law do so without unduly infringing upon freedom of speech?
GOOD SPEECH, BAD SPEECH
Freedom of speech is an essential right in a democratic society. As the poet and essayist John Milton put it eloquently in 1644, "The liberty to know, to utter, and to argue freely according to conscience [is] above all liberties." [1] Reflecting this wisdom, the First Amendment to the U.S. Constitution guarantees that "Congress shall make no law ... abridging the freedom of speech, or of the press." [2] Freedom of speech gives us the right to express ourselves even if our speech is trivial, despicable, crass, and repulsive. We don't allow the government to regulate "matters of taste and style" in speech, the Supreme Court has ruled, since "one man's vulgarity is another's lyric." [3] As the Court also declared, we have a "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open." [4]
The Supreme Court has held that the First Amendment right to freedom of speech places some limits on defamation law. The Court had originally viewed defamation as not being protected by the First Amendment because it has "no essential part in the exposition of ideas." [5] Speech that defamed a person was not a key part of public debate, so it didn't warrant constitutional protection. However, the Court changed its position in the famous case of New York Times v. Sullivan in 1964, when it concluded: "Erroneous statement is inevitable in free debate, and ... it must be protected if freedoms of expression are to have the 'breathing space' they need to survive." [6] Instead of wiping out defamation law, the Court crafted a compromise to balance the protection of free speech with the ability to seek redress for defamatory statements. In later cases, the Supreme Court left the defamation tort largely intact for "private figures" but limited it significantly for "public figures." [7] A "public figure," one who has achieved a general level of "notoriety" or who has come to the "forefront of particular public controversies," must prove that the speaker acted with "actual malice." [8] "Actual malice" requires that the person who made the statement knew that it was untrue or acted "with reckless disregard of whether it was false or not." [9] Basically, famous people have to prove that the defendant intentionally told lies about them or simply didn't care whether rumors were true or not. Actual malice is hard to establish, and most plaintiffs who have to prove it lose their cases. [10] Private citizens need only show the defendant to have been negligent when he told lies, a much easier standard to establish.
The Supreme Court could have simply abolished the defamation torts of libel and slander in the name of free speech, but it compromised and preserved much of defamation law. One reason, the Court noted, was that falsehoods are "not worthy of constitutional protection" and that the "First Amendment requires that we protect some falsehood in order to protect speech that matters." [11] In other words, the First Amendment protects false speech not for its own sake but as a means of protecting true speech. Moreover, the Court observed, it is important also to preserve the "individual's right to the protection of his own good name," which "reflects no more than our basic concept of the essential dignity and worth of every human being." [12]
The law of privacy clashes more directly with free speech. As we have seen, unlike defamation law, which applies only to falsehoods, privacy law allows people to redress harms caused by the spread of true information about themselves. Truth is one of the primary defenses to a defamation case, but the fact that information is true will do nothing to halt a privacy case. The famous tort law scholar William Prosser viewed the privacy torts as creating "a power of censorship over what the public may be permitted to read, extending very much beyond ... the law of defamation." [13] Many scholars have argued that it is difficult or even impossible to square the privacy torts with freedom of speech. As the First Amendment scholar Thomas Emerson argues: "Any individual living among others is, by the very nature of society, subject to an enormous amount of comment, gossip, criticism and the like. His right to be left alone does not include any general right not to be talked about." [14] Similarly, another First Amendment scholar, Eugene Volokh, contends: "The difficulty is that the right to information privacy -- my right to control your communication of personally identifiable information about me -- is a right to have the government stop you from speaking about me." Volokh concludes that the First Amendment "generally bars the government from controlling the communication of information." [15]
If Emerson and Volokh are right, then there's little the law can do. The First Amendment gives people the right to say whatever they want so long as it is true. It gives you and me the right to blog our thoughts without fear of reprisal. How can the public-disclosure tort -- which would make someone liable for saying true things about someone else -- be constitutional under the First Amendment? Although the privacy torts can be squared with the First Amendment, the issue is a difficult one, and it requires a bit of explanation.
Absolutism
A popular view of the First Amendment is that its protection of free speech is absolute. This means that if somebody is engaging in speech, then the First Amendment bars any attempt to regulate or prohibit that speech -- no matter how odious or harmful the message might be.
Justice Hugo Black became famous for adopting this position. [16] Black argued that the First Amendment is an "unequivocal command that there shall be no abridgment of the rights of free speech and assembly." [17] In one lecture, Black declared: "It is my belief that there are 'absolutes' in our Bill of Rights, and that they were put there on purpose by men who knew what words meant and meant their prohibitions to be 'absolutes.'" [18] An interviewer once asked Justice Black what precisely he meant by these words. Black replied by taking out the copy of the Constitution that he always carried in his pocket. He read the First Amendment: "Congress shall make no law ... " And then he said: "That's the First Amendment -- I would think: Amen, Congress should pass no law. Unless they just didn't know the meaning of words." [19]
If you're a free-speech absolutist, much of the law protecting privacy becomes difficult to defend. The First Amendment forbids the law from restricting people from saying what they want to say.
Balancing
Justice Black's absolutist approach didn't win the day. Instead, the Supreme Court currently resolves free-speech cases by balancing speech against opposing interests. [20] Under a balancing approach, the value of free speech is high, but it's not absolute. If there's a good enough reason, then free speech can be trumped. So the balancing approach views free speech as important, just not sacrosanct.
Even under a balancing approach, critics of privacy protections argue that free speech has a high value that will trump privacy except under exceptional circumstances. When balancing, courts analyze any law -- including a tort law -- under a level of constitutional "scrutiny." The highest form of constitutional scrutiny is strict scrutiny. Under strict scrutiny, to "outweigh" a First Amendment interest, a law must be the "least restrictive means" to achieve a "compelling" government interest. [21] Laws restricting speech rarely survive strict scrutiny, which has been referred to as "'strict' in theory and fatal in fact." [22] Volokh argues that many laws protecting privacy should be subjected to strict scrutiny: "Political speech, scientific speech, art, entertainment, consumer product reviews, and speech on matters of private concern are thus all doctrinally entitled to the same level of high constitutional protection, restrictable only through laws that pass strict scrutiny." [23] This means that the Warren and Brandeis tort of public disclosure is probably unconstitutional if we apply the strict-scrutiny standard.
Contrary to Volokh's stance, current case law holds that not all forms of speech are worthy of being protected with strict scrutiny. Some forms of speech are less important than others. If we look at current Supreme Court law, not all forms of speech are protected equally. [24] For example, the Supreme Court gives less protection to commercial speech, which occupies a "subordinate position in the scale of First Amendment values." [25] Since commercial speech isn't protected with strict scrutiny, the law can more readily regulate it.
Speech of private concern should be given less protection than speech of public concern. The Supreme Court has endorsed this view to a limited extent. In one case, the Supreme Court concluded that "not all speech is of equal First Amendment importance. It is speech on 'matters of public concern' that is 'at the heart of the First Amendment's protection.' ... In contrast, speech on matters of purely private concern is of less First Amendment concern." [26] In short, the Supreme Court ruled that speech of private concern should be given much less protection than speech of public concern [27] The Court has never held that Warren and Brandeis's public disclosure of facts tort is unconstitutional. The tort has been around for more than one hundred years, so if the Court were to suddenly strike it down, it would be a bolt out of the blue.
The Supreme Court has thus left open an area for the public-disclosure tort to thrive. Recall the last element of the public-disclosure tort -- the "newsworthiness test" -- that the speech cannot be of "legitimate concern to the public." If it is, then the case is dismissed. If the speech involves matters of private concern, then the lawsuit proceeds. The newsworthiness element of the public-disclosure tort is designed to protect free speech. The tort was, after all, designed by Louis Brandeis, who after becoming a Supreme Court justice, was a champion of the First Amendment. He is considered one of the great heroes of free speech. But he also believed in the importance of protecting privacy, and he reconciled free speech and privacy with the newsworthiness test.
BALANCING FREE SPEECH AND PRIVACY
Several scholars think that the Supreme Court should abolish the privacy torts when they conflict with free speech. The law professor Diane Zimmerman, for example, argues that the public-disclosure tort should be "scuttled" because the costs to free speech are too high; potential litigation will have a chilling effect on speech and the tort inhibits the "free exchange of personal information." [28] Zimmerman raises a valid point -- the privacy torts definitely have the potential to chill speech.
There are compelling reasons, however, why the Supreme Court is right not to eliminate the privacy torts, especially the public-disclosure tort. In fact, protecting privacy -- and restricting free speech in some cases -- can actually advance the reasons why we protect free speech in the first place. Since this sounds paradoxical, some explanation is in order.
We first need to begin by looking at why free speech is valuable. We're so used to assuming that free speech is important that we often don't take the time to think about why. But the why of it really matters. Those pondering the issue have come up with a number of reasons. I will discuss three of the most popular ones: individual autonomy, democracy, and the marketplace of ideas.
Individual Autonomy
One of the most frequently articulated rationales for why we protect free speech is that it promotes individual autonomy. [29] We want people to have the freedom to express themselves in all their uniqueness, eccentricity, and candor. Stopping Jessica Cutler from speaking about Robert in her Washingtonienne blog limits her freedom. The autonomy of listeners is also involved. Many people enjoyed Cutler's blog. Stopping Cutler from writing her blog will take away stories that many people might want to read.
But the autonomy justification cuts both ways. As the law professor Sean Scott observes, "The right to privacy and the First Amendment both serve the same interest in individual autonomy." [30] The disclosure of personal information can severely inhibit a person's autonomy and self-development. [31] Julie Cohen notes that lack of privacy can "chill the expression of eccentric individuality." [32] The risk of disclosure can inhibit people from engaging in taboo activities. [33] From Cutler's blog, it seemed as though she fully consented to Robert's spanking and kinky sex. She liked being with him. So why shouldn't Robert be able to have sex the way he wants to with another consenting adult? The risk of disclosure, however, might prevent people from doing things they enjoy because of fear of social disapproval. Privacy allows people to be free from worrying about what everybody else will think, and this is liberating and important for free choice.
Privacy protects more than just people's freedom to engage in an unconventional sex life. Privacy permits individuals to express unpopular ideas to people they trust without having to worry how society will judge them or whether they will face retaliation. [34] Without privacy, it is hard for many people to sound off about their bosses or express their honest opinions. All of these activities are central to people's autonomy. Protecting privacy can promote people's autonomy as much as free speech can.
Democracy
Free speech is also vital to democracy. The famous First Amendment scholar Alexander Meiklejohn argued that free speech is important not because we should protect the individual's desire to speak but because free speech is necessary for a robust political discourse. According to Meiklejohn, "What is essential is not that everyone shall speak, but that everything worth saying shall be said." [35] As the law professor Owen Fiss observes: "On the whole does [speech] enrich public debate? Speech is protected when (and only when) it does, and precisely because it does." [36] In other words, free speech is most valuable when it contributes to public discussion on issues of policy and politics. Under this view, speech of private concern is relatively unimportant. Reporting people's secrets rarely contributes much to politics. Was Jessica Cutler's Washingtonienne blog about her sexual exploits on Capitol Hill really useful for a political debate? It's a titillating and engrossing read, but our democracy probably isn't going to suffer without it. As Benjamin Franklin asserted: "If by the Liberty of the Press were understood merely the Liberty of discussing the Propriety of Public Measures and political opinions, let us have as much of it as you please. But if it means the Liberty of affronting, calumniating, and defaming one another, I for my part ... shall cheerfully consent to exchange my Liberty of Abusing others for the Privilege of not being abus'd myself." [37]
In fact, privacy protections can strongly promote democratic discussion and debate. [38] Political discussions often take place between two people or in small groups rather than at public rallies or nationwide television broadcasts. More discourse about politics occurs in personal conversations than on soapboxes or street corners. Without privacy, many people might not feel comfortable having these candid conversations. Protecting privacy can actually promote free speech, not just restrict it.
The Marketplace of Ideas
A third justification for free speech is that it contributes to the promotion of truth. This justification was most famously propounded by the philosopher John Stuart Mill, who observed that it is best not to censor speech, because that speech might be true, and censors can't infallibly distinguish between the true and the false. [39] Justice Holmes drew from this theory when he articulated the notion of the marketplace of ideas: "When men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas -- that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out." [40] Under the marketplace theory, free speech enables us to find the truth. The law should butt out and let people decide for themselves what's true and false.
But truth isn't the only value at stake. [41] Truth must be weighed against other values. As one nineteenth-century English judge put it: "Truth, like all other good things, may be loved unwisely -- may be pursued too keenly -- may cost too much." [42] There are many "truths" that are not worth much effort to find out. For example, there is a true answer to the number of paperclips I have in my office, but this information does not have much value. Much true information is trivial and useless. The value of the quest for the truth depends upon what information one is seeking. The truth about a private person's personal life is often worth little or nothing to the general public.
On balance, privacy furthers many of the same interests that free speech does. Free speech is indispensable because it promotes autonomy, democracy, and the quest for the truth. But these interests also depend upon protecting privacy. A balance between free speech and privacy might achieve these interests more effectively than merely protecting speech at all costs.
NEWSWORTHINESS
To reconcile the public disclosure tort with free speech, the tort doesn't apply when the information is of "legitimate concern to the public." [43] This is referred to as the "newsworthiness test." If a particular disclosure is newsworthy, then a public-disclosure tort case is dismissed. This newsworthiness limitation is included in the tort to protect free speech.
Information is of public concern when "the public has a proper interest in learning about [it]." [44] For example, the Restatement of Torts distinguishes between "information to which the public is entitled" and "morbid and sensational prying into private lives for its own sake, with which a reasonable member of the public, with decent standards, would say that he had no concern." [45] What is of interest to most of society is not the same question as what is of legitimate public concern. It is possible that people will want to hear a story even when they do not consider it of legitimate public concern. For example, a video of Pamela Anderson having sex with Bret Michaels was sold over the Internet, generating hundreds of thousands of dollars in revenue. [46] A video of the president giving a speech would be much less lucrative. Does this make the sex tape more newsworthy? Ample public curiosity doesn't make a piece of gossip newsworthy, as such interest can stem from a hunger for prurient entertainment instead of from a desire to learn about the news and current events. Therefore information that involves matters of public concern is protected; information that merely provokes our prurient curiosity is not.
Identifying Information
In many instances, there is little need for a story about a person's private life to identify the person. The facts of the story may be of legitimate concern to the public, but the identification of the people involved might not further the story's purpose. In one case, for example, a woman suffered from a rare disease that caused her to continue to lose weight no matter how much she ate. A reporter wrote an article about her called "Starving Glutton," and it contained a photograph of her in a hospital bed. The court found the facts of the woman's disease to be newsworthy, yet the court still let the case proceed because the story could have been told effectively without identifying the woman: "While plaintiff's ailment may have been a matter of some public interest because unusual, certainly the identity of the person who suffered this ailment was not." [47]
Contrast the "Starving Glutton" case with that of Ruth, who was involved in a horrible car accident. The car was so badly mangled that she had to be cut from the car with the "jaws of life" device. Ruth was rushed away in a helicopter. A while later, lying in her hospital bed as a paraplegic, Ruth was watching On Scene: Emergency Response, a reality television show featuring real medical rescues. She was shocked when she saw that this episode was about her. Scenes from her rescue were vividly featured, including images of her mangled body in the car. Ruth was appalled. She said: "It's not for the public to see this trauma that I was going through."
Ruth sued for public disclosure of private facts. The court, however, dismissed her case because Ruth's rescue and treatment were of legitimate concern to the public. Ruth argued that the show's producers should have edited the episode to obscure her identity. The court, however, rejected her argument: "That the broadcast could have been edited to exclude some of Ruth's words and images and still excite a minimum degree of viewer interest is not determinative. Nor is the possibility that the members of this or another court, or a jury, might find a differently edited broadcast more to their taste or even more interesting. The courts do not, and constitutionally could not, sit as superior editors of the press." [48] Here, the court simply deferred to the media, an approach that I believe is dodging the issue. The show could have readily been edited to protect Ruth's privacy by blocking her face and not revealing exact details about Ruth's identity. Why not require a few small steps to protect people like Ruth?
One common argument against shielding people's identities is that doing so erodes the credibility of an article. [49] Identifying people in news stories certainly allows people to verify the stories independently. But many stories of paramount importance have employed anonymous sources. In exposing the Watergate break-in and cover-up, for example, Bob Woodward and Carl Bernstein relied on the well-known pseudonymous source "Deep Throat." When journalists protect confidential sources, they engage in a balancing determination, sacrificing the public's ability to verify for the importance of protecting confidentiality. Public verifiability is not sacrosanct; it can be outweighed by privacy interests. Of course, concealing identities cannot work for all stories, especially those about public figures, since it is the identity of the person that gives the story its relevance. But in many cases, there is no need to identify.
Speaking About One's Life
Bloggers like Jessica Cutler do not have an unfettered free-speech right to talk about other people's private lives. People like Robert should be able to sue bloggers like Cutler when they reveal private details that are not of legitimate concern to the public.
However, there is one other important issue involved in the case that must be addressed -- Cutler's right to speak about her own life. Our lives are intertwined with those of others. If you want to write an autobiography, you're probably going to have to talk about other people, unless you spent your life living in a shack in the woods on a mountainside. Telling Cutler not to speak about her relationship with Robert -- even though it may be of private concern -- seems rather stifling to her freedom to express herself. It would be one thing for a stranger to talk about Cutler and Robert's sex life, but it's another if either Cutler or Robert wants to talk about it. Shouldn't we be extra careful to preserve people's ability to tell their own life stories?
Oddly, few cases address the issue of who is doing the talking. The focus is on whether the information is of legitimate concern to the public regardless of whether Cutler is speaking about her own life or whether some reporter is talking about it. A better approach would be for the law to pay attention to who is divulging the secret. It is essential for autonomy that a person be able to talk about her own life -- even when what she's describing isn't newsworthy. It's one thing to silence a person from speaking about a piece of juicy gossip about someone else, but it is quite an extreme step to stop a person from talking about her own life.
But even if Cutler has a special right to speak about her own life -- whether newsworthy or not -- that doesn't mean that she can do so irresponsibly. The law should still require her to be careful not to damage the lives of others like Robert. To better think about these issues, let's look at a similar case. Susanna Kaysen was a well-known author, having written the book Girl, Interrupted, which was made into a movie costarring Angelina Jolie, who won an Oscar for her role. [50] Kaysen started having an affair with Joseph, a married man. She ultimately persuaded him to leave his wife, and he divorced in 1996 and moved in with Kaysen. At some point afterward, Kaysen started to experience severe vaginal pain. She went to doctor after doctor, but none was able to help her. Kaysen began to write a book about her experiences. She didn't tell Joseph about the subject of her book. In 1998 Kaysen broke it off with Joseph. Three years later, in 2001, she published her book, The Camera My Mother Gave Me, an autobiographical account of her terrible vaginal pain and how it affected her relationship with Joseph. She referred to Joseph at all times only as her "boyfriend" and altered some details about his life, such as where he was born and his occupation.
The book contained some graphic descriptions of their sex. In the book Joseph becomes impatient with Kaysen's condition and continually pesters her for sex, even resorting to "whining and pleading." Kaysen depicts Joseph in an unflattering light, as insensitive to her plight. In one scene where Joseph tries to have sex with Kaysen, she writes: "I felt he was trying to rape me. Because he hadn't seen how willing I was. All he could see was what he wanted."
When the book came out, many of Joseph's friends, family, and business clientele read the book and knew that Joseph was the "boyfriend." Joseph sued under the tort of public disclosure of private facts, claiming that his reputation was severely harmed. The court dismissed Joseph's case, concluding that the book was newsworthy. The topic of the effects of Kaysen's vaginal pain on her relationships was a matter "of legitimate public concern, and it is within this specific context that the explicit and highly personal details of the relationship are discussed." The court also noted that Kaysen had a "right to disclose her own intimate affairs." She was "telling her own personal story -- which inextricably involves [Joseph] in an intimate way." [51]
The court was right that Kaysen's and Joseph's lives were intertwined and that Kaysen has a right to talk and write about her own life. The most important consideration, however, should have been whether it was possible for Kaysen to avoid identifying Joseph. She did indeed take as many steps as possible to conceal the identity of Joseph, not only omitting his name but even altering details about his life to further prevent his identification. It wasn't possible to do much more. Therefore Kaysen appears to have exercised the appropriate level of care in the steps she took to protect Joseph from being identified. She should win for this reason.
Turning back to the Washingtonienne case, there's no need to stop Cutler from talking about her sex life. She just needs to do it a bit more thoughtfully, with more attention to the rights of the other person involved. All Cutler had to do was avoid using Robert's initials and avoid mentioning where he lived, as these were key clues that would make it possible to identify him.
But she's just a twenty-something amateur, one might say, so why should we expect her to exercise the care of a professional journalist? The answer is that the line between amateur and professional journalists is dissolving. The Internet gives amateurs a power similar to what professionals have -- to reach thousands, perhaps millions, of people. And with power should come some responsibility. While we can't expect bloggers to be perfect in all the steps they take to shield others' identities, we should hold them to a reasonable standard of care. Cutler was sloppy in handling Robert's identity when she blogged. As a result, she upended his life. This didn't have to happen. Cutler could still have written her story. And Robert's sex life could still have remained private. In many cases -- as in this one -- with a little bit of care, free speech and privacy can peacefully coexist.
ANONYMITY
Article III Groupie wasn't the typical groupie, obsessed with rock stars. Instead, her fixation was on federal judges. Named after Article III of the U.S. Constitution, which establishes the powers of the federal judiciary, Article III Groupie was a young law school graduate who created the blog Underneath Their Robes. Article III Groupie blogged about "scrumptious tidbits of news and gossip about federal judges." [52] She also dished out gossip about law clerks, recent law school graduates who assisted judges for yearlong stints. As Article III Groupie described her blog:
This weblog, "Underneath Their Robes" ("UTR"), reflects Article III Groupie's interest in, and obsession with, the federal judiciary. UTR is a combination of People, US Weekly, Page Six, The National Enquirer, and Tigerbeat, focused not on vacuous movie stars or famous teen idols, but on federal judges. Article III judges are legal celebrities, the "rock stars" of the legal profession's upper echelons.
This web log is a source of news, gossip, and colorful commentary about these judicial superstars!
Article III Groupie's electronic face
According to her self-description, Article III groupie graduated from a top law school and worked for "a large law firm in a major city, where she now toils in obscurity." She described herself as a "diva" and as a "federal judicial starf**ker. "
Little more was revealed about the elusive Article III Groupie. She said that in "her free time, she consoles herself through the overconsumption of luxury goods" and that her "goal in life is to become a federal judicial diva." Article III Groupie's identity was shrouded in secrecy. The only picture of the mysterious Article III Groupie was a small hand-drawn sketch.
Who was this Sex-in-the-City-type diva? How bizarre that she would be starstruck by the nerdy world of the federal judiciary! How exciting that someone -- anyone -- was even interested in this lonely corner of the world in the same way that groupies were into rock stars! Suffice it to say that Article III Groupie's blog was quite quirky and entertaining. She seduced the online legal world with her exuberance and audacity. Who else but Article III Groupie would dare to hold "hottie" contests for male and female judges? [53] Who else had the moxie to use such catty phrases as "judicial divas," "bench-slappery," "litigatrix," "bodacious babes of the bench," "judicial hotties" and "judicial prima donnas"?
Article III Groupie's gossipy blog was a big hit. It attracted an impressive array of readers, including federal judges themselves. It was U.S. Appeals Court Judge Alex Kozinski who anointed Article III Groupie with the nickname A3G. And U.S. Court of Appeals Judge Richard Posner admitted that he enjoyed the site: "It's occasionally a little vulgar, but this is America in 2005." [54]
One day, rather abruptly, A3G decided to unmask herself. The opportunity came when Jeff Toobin of the New Yorker wanted to interview A3G in person. A3G agreed to meet him for lunch. When Toobin saw A3G, his jaw dropped.
"So you're a guy?" Toobin gasped.
Yes, A3G was a man. His name was David Lat. Lat was a graduate of Yale Law School who had clerked for a conservative federal judge on the U.S. Court of Appeals for the 9th Circuit. I knew Lat personally; he was a classmate of mine at Yale Law School. But I had no idea Lat was A3G until I read it in Toobin's New Yorker article. To make matters more interesting, Lat worked as a federal prosecutor in Newark, New Jersey. [55] He regularly appeared in court before federal judges.
When Toobin's article revealed to the world A3G's true identity, it sent shockwaves throughout the legal community. This amazing disrobing quickly drew the attention of the mainstream media, and Lat's story was featured in scores of newspaper articles.
Lat had decided to be anonymous as a way of protecting his job while maintaining such a salacious blog. In an interview, Lat explained: "The law is a fairly conservative profession, and being known as a legal gossip-monger would not be good for my professional advancement. It also wouldn't help me in my lifelong ambition to become an Article III judge. Issuing snarky commentary about sitting federal judges won't put me on a fast track to the federal bench." [56] Beyond the inherent difficulties of juggling the blog with his law career, Lat regularly appeared in federal court representing the United States government. Without anonymity, the very judges he was calling "your honor" in the courtroom would know he was referring to them as "hotties" in the blogosphere. It was difficult to imagine how he could continue to represent the federal government in court.
Moreover, Lat's anonymity provided a sense of mystery to the blog. Now that mystery had vanished. The blog just wouldn't be the same without Lat's unique alter ego, A3G. One commentator wrote in a post about A3G at another legal blog: "This is terrible. I can't read that site knowing the author is a man." [57] Anonymity had allowed Lat to assume a new identity, a persona he carefully designed to be as distinct from himself as possible. One reader of his blog who knew him stated in an interview in the New York Times: "David was on this one side a hard-core Federalist Society type, who clerked for an extremely hard-right judge, and was way to the right of most of his associates. And he had this whole other side of flamboyant, theater-watching, Oscar-watching, shoe-loving, litigatrix. How do these two sides get reconciled?" [58]
Anonymity allows people to escape accountability for their words, but this comes at a cost -- the loss of authorship credit under one's real name. Lat wanted to have the praise and attention his female alter ego A3G was getting. He increasingly grew frustrated that he was toiling over the blog but getting little recognition for it. He wanted the attention the blog was attracting to be associated with his name. But the irony was that in his quest to get credit for the blog, he risked destroying the blog and even his career.
After revealing his identity, Lat braced himself for the firestorm that would ensue. After his identity was announced, his supervisors in the United States Attorney's office asked him to stop blogging immediately. Lat quickly locked his blog down, making it inaccessible to the public without a special password. Near the end of a stressful week, in which he wondered whether he would be fired, Lat met with his boss. He would be able to keep his job -- on the assumption that Underneath Their Robes would be kept underneath its password.
But Lat's story has a happy ending. A few weeks later, he left the U.S. Attorney's office to accept a job blogging full-time at Wonkette, the political gossip blog that had publicized Jessica Cutler's Washingtonienne blog. He later went on to launch a new legal gossip blog, Above the Law. Lat now blogs under his real name.
The Virtues of Anonymity
The saga of Article III Groupie demonstrates how easy it seems to be anonymous on the Internet. A person can readily create a blog under a pseudonym or can post anonymous comments to blogs or online discussion groups. According to a survey, 55 percent of bloggers use pseudonyms rather than their real identities. [59]
Anonymity can be essential to free speech. As the Supreme Court has noted: "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." [60]
Anonymous speech has a long history as an important mode of expression. Between 1789 and 1809, six presidents, fifteen cabinet members, twenty senators, and thirty-four congressmen published anonymous political writings or used pen names. It was common for letters to the editor in local newspapers to be anonymous. Ben Franklin used more than forty pen names during his life. [61] Mark Twain, O. Henry, Voltaire, George Sand, and George Eliot were all pseudonymous authors. Indeed, James Madison, Alexander Hamilton, and John Jay published the Federal Papers under the pseudonym Publius. Their opponents, the Anti-Federalists, also used pseudonyms. [62]
Anonymity allows people to be more experimental and eccentric without risking damage to their reputations. [63] Anonymity can be essential to the presentation of ideas, for it can strip away reader biases and prejudices and add mystique to a text. People might desire to be anonymous because they fear social ostracism or being fired from their jobs. Without anonymity, some people might not be willing to express controversial ideas. [64] Anonymity thus can be critical to preserving people's right to speak freely.
Accountability
Anonymity also has a dark side. As Adam Smith observed in The Wealth of Nations: "While [a 'man of low condition,' as opposed to a 'man of rank and fortune'] remains in a country village his conduct may be attended to, and he may be obliged to attend to it himself. In this situation, and in this situation only, he may have what is called a character to lose. But as soon as he comes to a great city, he is sunk in obscurity and darkness. His conduct is observed and attended to by nobody, and he is therefore likely to neglect it himself, and to abandon himself to every low profligacy and vice." [65] According to Smith, people behave differently when they can do so anonymously. People "of rank and fortune" are generally going to be noticed no matter where they are; but ordinary people will be noticed only in the small village. In the large city, a person becomes a face in the crowd and has achieved an anonymity of sorts in daily life. This anonymity, Smith observes, will tempt people to behave badly. When people are less accountable for their conduct, they are more likely to engage in unsavory acts.
When anonymous, people are often much nastier and more uncivil in their speech. It is easier to say harmful things about others when we don't have to take responsibility. When we talk about others, we affect not only their reputation but ours as well. If a person gossips about inappropriate things, betrays confidences, spreads false rumors and lies, then her own reputation is likely to suffer. People will view the person as untrustworthy and malicious. They might no longer share secrets with the person. They might stop believing what the person says. As U.S. Supreme Court Justice Antonin Scalia observed, anonymity can making lying easier; and the identification of speakers can help significantly in deterring them from spreading false rumors and can allow us to locate and punish the source of such rumors. [66]
Anonymity also facilitates deception. People can readily masquerade as other people in creating blogs and profiles. Harriet Miers was the first Supreme Court Justice nominee to have her own blog -- Harriet Miers's Blogg!!! [67] Her first entry:
OMG I CAN'T BELIEVE I'M THE NOMINEE! ! ! This is BIGGEST DAY OF MY LIFE! ! ! EVER !!!! OMGOMGOMG
Needless to say, it was fake. Miers is not alone. There was a blog called Luttig's Lair impersonating Judge J. Michael Luttig. [68] In one high school, some students created fake blog entries in another student's name, boasting about sexual adventures that never happened. [69] In another incident, an anonymous person created a fake Myspace profile for a twelve-year-old girl, using her real phone number and saying she was a stripper. [70] Anyone can sign up on a free blogging service and create a blog. In anybody's name. In your name. You might have a blog and not even know about it.
When people can avoid being identified, they can slip away from their bad reputations. In one instance, a woman joined an online chat group for eating disorders. She said she, too, suffered from an eating disorder, but she was eventually revealed to the group to be a fraud. After being booted from the group, she moved over to a group of sexual abuse victims. When revealed as a phony in that group, she reappeared in a group of people suffering from AIDS. [71] As sociologist Robert Putnam observes: "Anonymity and fluidity in the virtual world encourage 'easy in, easy out,' 'drive-by' relationships. The very casualness is the appeal of computer-mediated communication for some denizens of cyberspace, but it discourages the creation of social capital. If entry and exit are too easy, commitment, trustworthiness, and reciprocity will not develop." [72] In other words, anonymity inhibits the process by which reputations are formed, which can have both good and bad consequences. Not having accountability for our speech can be liberating and allow us to speak more candidly; but it can also allow us to harm other people without being accountable for it.
Thus anonymity is a form of privacy protection, yet it can also facilitate privacy violations. Anonymity can preserve privacy by allowing people to speak freely without being publicly identified, yet it can undermine privacy by allowing people to more easily invade the privacy of others. As the tension between anonymity and accountability demonstrates, along with the tension between privacy and free speech, the choice isn't as simple as one between freedom and constraint. Rather, it is a choice that involves freedom on both sides.
