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The Right to Speak Anonymously Constitutionally Protected

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Since January, there has been a discussion of race percolating within the online science fiction community. With all discussions of race, this one got heated. Will Shetterly, a pillar of the science fiction community, part of what I would term the old guard, outed a livejournal member who argued critically against him, sometimes with heated rhetoric. This outing is inexplainable, but Shetterly attempts to defend himself by likening pseudonymous individuals as con artists and suggesting that everyone is entitled to know the legal name of a person because “would you want to defend a klansman’s identity.”

The issue of anonymity on the internet is an important one and I thought it was particularly topical given that the Maryland Court of Appeals handed down a decision protecting internet anonymity. The case is Independent Newspapers, Inc. v. Zebulon J. Brodie and is available directly from the Maryland Courts website (pdf).

Zebulon Brodie filed suit to identify the legal names of individuals participating on an online forum. Independent Newspapers refused to provide the information. The initial ruling was in Brodie’s favor, ordering the release. Independent Newspapers appealed the decision and the Court of Appeals reversed, finding that in balancing First Amendment rights with right to seek redress for defamation, Brodie had failed to make a showing that he would be successful in a defamation act.

The court set up a five factor test in which trial courts should employ when faced with a defamation action involving anonymous persons. The court must:

  1. require the plaintiff to undertake efforts to notify the anonymous posters that they are the subject of a subpoena or application for an order of disclosure, including posting a message of notification of the identity discovery request on the message board;
  2. withhold action to afford the anonymous posters a reasonable opportunity to file and serve opposition to the application; require the plaintiff to identify and set forth the exact statements purportedly made by each anonymous poster, alleged to constitute actionable speech;
  3. determine whether the complaint has set forth a prima facie defamation per se or per quod action against the anonymous posters; and,
  4. if all else is satisfied, balance the anonymous poster’s First Amendment right of free speech against the strength of the prima facie case of defamation presented by the plaintiff and the necessity for disclosure of the anonymous defendant’s identity, prior to ordering disclosure.

The text of the court decision is fascinating in its detailed accounting of various internet forms of communication (from email to blog commenting to message boards) and the history of internet communication. "Since the early 1990’s, when Internet communication became available to the American public, anonymity or pseudonymity has been a part of the Internet culture," says the Brodie court. The Brodie court noted that it is one’s First Amendment right to speak anonymously and quoted Justice John Paul Stevens at length:

Anonymous pamphlets, leaflets, brochures and even books have  played an important role in the progress of mankind. Great  works of literature have frequently been produced by authors  writing under assumed names. Despite readers’ curiosity and the  public’s interest in identifying the creator of a work of art, an  author generally is free to decide whether or not to disclose his  or her true identity. The decision in favor of anonymity may be  motivated by fear of economic or official retaliation, by concern  about social ostracism, or merely by a desire to preserve as  much of one’s privacy as possible. Whatever the motivation may  be, at least in the field of literary endeavor, the interest in having  anonymous works enter the marketplace of ideas unquestionably  outweighs any public interest in requiring disclosure as a  condition of entry. Accordingly, an author’s decision to remain  anonymous, like other decisions concerning omissions or  additions to the content of a publication, is an aspect of the  freedom of speech protected by the First Amendment.

There is a limit to anonymous speech and that is the same limit as on any speech. In the Brodie case, the limitation being discussed was defamation but there are other limits to free speech such as pornography, obscenity, fighting words, and the like.

In the Will Shetterly instance, however, he was purportedly fighting back because he had a) been banned from someone’s livejournal and b) after the ban, the same someone proceeded to pointedly address Shetterly’s claims that class trumps race in all circumstances. None of the statements appeared to be defamatory and even if they were defamatory, Shetterly’s actions in "outing" this person was not to seek redress for the alleged defamation (indeed, I think he made no such claim, instead he just wanted to show the world who the "hypocrite" was). Instead, the reason for the outing was exactly the outcome that anonymity seeks to prevent: the chill of free speech.

Shetterly’s argument is that false identities are too easily created on the internet and no one is accountable or authentic behind an anonymous or pseudonymous name.   Shetterly says,  “a pseudonym is only an identity that can be put on and taken off with ease. Con artists love pseudonyms.”   The truth is, though, that internet identities can’t be sloughed off so easily and reborn.   if one leaves an identity behind, one leaves behind built up social currency, relationships, peer recognition.   When one is reborn, the slate is fresh but not without cost.

Given that Shetterly is a writer, it’s hard to see how one can make the claim that pseudonyms have no value or are somehow the work of "con artists." Authors routinely write under more than one name and publishers intentionally obfuscate the real source of the writing in an effort to recreate a new brand for a particular author. Unless Shetterly has posts standing up against this practice, it seems disingenuous to say that pseudonymity is only used by internetizens who plan to engage in rapscallious activity.   An author that chooses to use a different pen name both loses the original audience she has built up and has the potential to gain a new one, but the new pen name is treated with correspondingly “new author” print runs, new author marketing budgets, and so forth.   This has its positives and negatives, just as changing an online identity.

Pseudonymity, as the Brodie court observed, has been a part of internet culture from the very beginning. Pseudonymity does not yield way to lawlessness because of the concept of social capital. Every person with a livejournal account builds up social capital through discourse. An individual can become a respected herald even with a name like humpmydick or two_left_toes (I made those names up and apologize in advance if these users exist and I am using their handles profanely). In some ways, the pseudonymous nature of internet connections provides a level playing field. Each individual must prove their online worth through their words and deeds and not through any phenotypical characteristic (although backstories have a way of wending themselves in one’s narrative).

Even beyond the inherent double sided nature of an author speaking out against pseudonyms is the false argument that there is no accountability for those who use pseudonyms. The voice behind the pseudonym is well known. I think if I shut down Dear Author today and started up another blog, it wouldn’t be but a few weeks before someone would figure out the voice behind the other blog.

I don’t think it can be argued that the voices behind the handles can be so lacking in distinction that new identities can be created in a heartbeat. If this were true, then outing would have no purpose. Why silence one non distinct voice only to face a dozen more?The reason to out someone is because their distinctive voice carries weight, a weight that can only be gained through social capital.

I use anonymity and psuedonymity almost interchangeably and that’s because if you argue that the voice is the most powerful indicator of identity then those two terms are interchangeable. It is not the identity with which a person identifies, but rather the voice.

It is true that pseudonyms and anonymity can be abused. Everything can, even real legal identities. Simply because there are those that abuse those does not mean that everyone who chooses anonymity on the internet is without courage, morals or ethics or conversely those who choose anonymity intend to harm, debase, and defraud others. Because the concepts are so ingrained in Internet culture, the community has found ways to police itself through loss of social capital, banning, and loss of community privileges. Being anonymous or pseudonymous does not equal unfettered behavior. There is accountability, albeit different than legal accountability. But legal accountability can only be applied to some corresponding legal wrong and it is clear that even the highest court of the land deems the right to be anonymous part of a citizen’s First Amendment freedom of speech.

Jane Litte is the founder of Dear Author, a lawyer, and a lover of pencil skirts. She spends her downtime reading romances and writing about them. Her TBR pile is much larger than the one shown in the picture and not as pretty. You can reach Jane by email at jane @ dearauthor dot com

55 Comments

  1. Jessica
    Mar 10, 2009 @ 05:57:49

    Jane,

    Great post. A few comments/questions:

    If anonymity is a right, then looks like Shetterly himself was guilty of a legal wrong. Would the person he outed have legal recourse?

    I agree with you that there is a difference between having a right and exercising it ethically. We do all kinds of immoral things to each other that do not violate anybody’s rights. It’s possible that the person Shetterly outed was behaving badly, even if he was within his rights to behave anonymously.

    For all of the criticism of online discourse, I think we forget that real world discourse can be illogical, ignorant, petty, insulting, and nonproductive, too (and anonymous, too. What about call in talk shows?).

    There is an interesting tension in your final points:

    on the one hand, you seem to side with the Court in advocating the protection of anonymity because of its potential contribution to things we value (literature, for example). But then you suggest, sensibly, that due to our voice, peer group, etc., “no one is really anonymous anyway”. I am not sure what to make of this, but it strikes me as intriguing.

  2. Estara
    Mar 10, 2009 @ 06:45:13

    I find it fascinating when Racefail 09 reaches other sites than LiveJournal. Some additional reading material for interested readers:

    concise summary
    http://snacky.livejournal.com/560654.html?thread=5172494#t5172494
    Timeline of the whole thing:
    http://seeking-avalon.blogspot.com/2009/01/timeline.html
    Huge collection of blog posts links in action and reaction:
    http://rydra-wong.livejournal.com/146697.html
    John Scalzi being extremely scathing about a person who tried to use Whatever for scoring against someone involved in this
    http://whatever.scalzi.com/2009/03/08/to-the-pathetic-toad-of-a-person-trying-to-use-my-site-to-settle-a-livejournal-score/

    Attempting to get back to the actual discussion point and actually stay on topic:
    http://community.livejournal.com/fight_derailing/363.html
    Verb Noire – a new publisher for genre fiction (science fiction/fantasy/mystery/romance) featuring a queer characters and/or characters of color
    http://community.livejournal.com/verb_noire/1477.html

  3. Estara
    Mar 10, 2009 @ 06:46:41

    Hmm I can’t edit my comment as it is in moderation for the huge number of links about this specific occurence, so I’m sorry for breaking the layout. I hope the links still work ^^

  4. Jia
    Mar 10, 2009 @ 07:02:27

    Don’t worry, Estara. I fished your comment out of the moderation queue.

  5. Jane
    Mar 10, 2009 @ 07:35:41

    @Jessica The only tort remedy for an individual who seeks to redress constitutional violations is section 1983 of the Civil Rights Act and that isn’t applicable to wholly private individuals. (Courtney or Robin might correct me on this).

    I think that your voice, particularly if you have a strong one, is not anonymous. It carries the weight of your past opinions, statements, social cachet, and so forth. Initially, you could be wholly anonymous and if you never speak, you could be wholly anonymous. But I do think that anyone’s voice that is strong and recognizable is not truly anonymous. Their legal identity might not be known, but they doesn’t necessarily make them anonymous.

  6. Jane
    Mar 10, 2009 @ 07:38:56

    @Estara I actually thought the Scalzi icon based attempts at being open to diversity making the point of the PoC group in that non marginalized people view inclusion as gestures rather than behavioral change.

  7. Courtney Milan
    Mar 10, 2009 @ 07:46:22

    @Jane: There’s also the lesser-known 42 USC s. 1985, which prohibits conspiracies to deprive people of the equal protection of the law. Section 1985 can be applied to private actions of private individuals, but it’s not even as far-reaching in scope as the fairly limited section 1983; it’s intended for use in suing, e.g., Klan members who intimidate blacks into not registering to vote. So it has to be a pretty egregious deprivation.

    Could it be applied here? Maybe. IIRC it is a really tricky proposition to get it to fly, and I’d have to do a couple of hours work reminding myself of the contours of it to see if this particular shoe fits–and I don’t have the time right now.

  8. Jia
    Mar 10, 2009 @ 08:13:59

    @Estara:

    John Scalzi being extremely scathing about a person who tried to use Whatever for scoring against someone involved in this

    If I understand correctly, the person in question was (again) trying to out the same person Shetterly had outed previously.

  9. Anion
    Mar 10, 2009 @ 08:32:11

    I’ve been watching this for a little bit now and am still stunned by the “outing.”

    Anonymity/pseudonymity is, for obvious reasons, an important issue to me. Some of you know why I’m pseudonymous here; at one point a couple of years ago I attracted myself a little internet stalker who sent me dozens of vicious, hateful emails, which was fun, and in addition to that, I feel that my points here–at least relating to authorial behavior or author/reader relationships–bear more weight because if no one knows who I am, no one can accuse me of saying what I say in order to “suck up” to readers or drive sales. It protects me from claims of hypocrisy, at least to some extent. And if I sacrifice sales I might have gained, well, that’s just what I have to deal with; as you said, Jane, it has benefits and disadvantages.

    A few people do know who I am. I’ve told a few and one person emailed me and flat-out asked because she “thought it sounded like [me].” So yes, voice is voice, and it does carry over. And I don’t really go to extreme lengths to protect it either. I don’t hide my experience or credits, I just don’t mention titles or names. I wasn’t upset when I got the “Is it you” email and I didn’t really worry about revealing my identity to the few people who asked. It wouldn’t be the end of the world for me were I to be outed here because I still stand behind everything I’ve ever said, and with one small exception–which I agonized about, but which I ultimately felt was relevant and thus appropriate, although it still makes me a bit uncomfortable–I don’t promote myself or my work in the guise of being someone else. (I’m familiar with another pseudonymous author elsewhere who mentions his/her own work a lot as if s/he’s talking about someone else, and it bugs me.) So I have generally behaved exactly the same way here as Anion, as I would under my own name, and I feel–as much as it’s possible to–that I’ve kept a clean and honorable pseudonym; no funny business, no sleazy winky-winkies, no sock puppets to back me up or commenting here both as Anion and myself and having self-serving conversations.

    All of which is a long-winded and probably way too self-interested way of saying I believe firmly in the right to be anonymous or pseudonymous online. And in life as well. I write under a pseudonym. A lot of writers I know do, either because they’re more comfortable that way or because their own names are hard to spell or non-euphonious or sound just like someone else’s or whatever. I don’t owe anyone my real name any more than I owe them the real names or photographs of my children.

    It’s always bugged me when people behave as though the words of Anons shouldn’t be given any weight. Yes, the lack of name might be taken into account, but we’ve seen many situations online where, I think, large issues could have been averted were people not so willing and eager to completely discount or attack anonymous commenters.

    And there seems to be a general idea that being anonymous is something people never do in real life, which puzzles me. Like “Would you say that to somebody’s face?” Well, I might. Just because I’m in a public place with another person doesn’t mean I’m any easier to identify or track down, you know? If I’m in a bar and get into a conversation with the people at the next table, and they say something that offends me, I might very well call them on it. I haven’t handed over my ID in order to get into a conversation with them. In fact most of our daily interactions in public are with people we don’t know. So it always confuses me, the idea that anonymity or pseudonymity is something that was invented for social interactions with the internet, when I at least used to give people a fake name all the time when I was a kid and beyond; which of us didn’t give a creepy guy a fake name or number at some point just to get rid of him?

    Again, I’m being too wordy and I apologize. But the idea that anyone has a right to my real name or address shocks me and always has, especially in the age of identity theft and information being so readily available online.

  10. (Jān)
    Mar 10, 2009 @ 08:50:28

    Didn’t Shetterly take all the information about said person down a few days ago and apologize?

  11. azteclady
    Mar 10, 2009 @ 09:04:58

    Anion said

    But the idea that anyone has a right to my real name or address shocks me and always has, especially in the age of identity theft and information being so readily available online.

    Exactly.

  12. Leslie Kelly
    Mar 10, 2009 @ 09:06:54

    Jane, I’m curious–have you been following this new trend where some doctors are requiring patients to sign agreements that they will not post negative reviews of their physicians on doctor rating websites? That immediately sounded to me like an effort to quash freedom of speech, but it is apparently happening. What’s your take on the legality?

  13. Jane
    Mar 10, 2009 @ 09:14:16

    @Leslie Kelly I did see that. It was in my local paper and boingboing had an article on it last week. I think it’s horrible because it basically is forcing the patient to choose between patient care and one’s first amendment rights to free speech. I do wonder at the legality of it but haven’t thought about the contours of a case, i.e., how to go about challenging the issue. I would think doctors would be subject to suit because they accept medicare funding so it would see that the gov’t could limit what releases a medicare patient signs in exchange for health care services. What a private citizen would be entitled to? I’d have to take a look at the caselaw.

  14. kirsten saell
    Mar 10, 2009 @ 09:19:37

    @Jia

    I think he took it down, put it back up, took it down again, then went onto other people’s blogs and outed them there. But I could be mistaken. The timeline is pretty complex to someone who came in on the tail end of the whole brouhaha…

  15. Jia
    Mar 10, 2009 @ 09:27:21

    @kirsten saell: I think you meant Jan (I know, the J’s do get confusing) but yes, that’s pretty much what he did. It might have been in the comments first, then his blog, and then someone else picked up the train but regardless, the damage has been done. That particular blogger’s legal name is now linked to their online pseudonym.

  16. karmelrio
    Mar 10, 2009 @ 09:31:55

    Anion said:

    I believe firmly in the right to be anonymous or pseudonymous online.

    I agree with the points Anion made in her post; this gets to the root of why many of us have online personae or use author pseudonyms.

    But one thing I have to point out is that, from a technological standpoint, ‘online anonymity’ is an illusion.

  17. Jessica
    Mar 10, 2009 @ 09:32:01

    @Jane:

    But I do think that anyone's voice that is strong and recognizable is not truly anonymous.

    So the value that’s being protected isn’t really anonymity, it’s more like pseudo-anonymity.

    You don’t have a right to prevent people finding out who you are. You have a right that people who have found out who you are do not publicize it?

    Maybe … it’s more a right not to be held publicly accountable, or a right not to have your “real” or legal self held publicly accountable, rather than a right to keep your “real” or legal self a secret?

    This is all very mysterious and interesting.

  18. Courtney Milan
    Mar 10, 2009 @ 09:38:12

    @Jane: I would think the easiest way to challenge it is to ignore it. I doubt that clause is enforceable.

    Contracts are contracts.

    They are not laws. They are not rules. They are not regulations. They are not even morally binding agreements. They are business arrangements, and it is understood when they are entered into that parties can choose not to perform under the contract. If they choose not to perform, they may be liable for damages–but they are not guilty of anything other than making a business choice.

    So, just breach the contract.

    If you breach a contractual provision, you will have to pay the person what you would have gotten if you’d complied with the term. What are the doctor’s damages? Too speculative, I’d imagine to recover. And in the meantime, you claim the clause is void against public policy, void because it was obtained under duress, etc. And if he sues you for damages or an injunction, respond with an anti-SLAPP suit.

    If you don’t want to risk a lawsuit, get a friend to post it for you. There’s nothing in the contract that says you can’t tell a friend about the horrible experience you had, and your friend didn’t sign a contract.

    Also, remember that office staff are busy. If you’re confronted with such a thing, cross off the offending lines and sign it and hand it back to the office staff. Chances are they will not even glance at your changes.

  19. Chicklet
    Mar 10, 2009 @ 09:45:20

    I’ve been participating in online fandom pseudonymously since 1999 or thereabouts. I’m all over the place as some variation of Chicklet or chicklet_girl. I chose to do this to protect myself from harassment and/or stalking, and also to keep employers and family from finding out about my fanfiction activities. I am not a troll, as Shetterly and Kathryn Cramer seem to think any pseudonymous or anonymous poster is; I am trying to make sure I’m not going to lose my job because I read and write fanfiction.

    Also, I think there’s an undercurrent of resentment from some of the authors involved that readers would have the gall to post negative opinions about the authors’ work or blog posts. As though the authors started a blog expecting only positive attention from readers, and were shocked to find that readers were trying to interact beyond an endless circle jerk of compliments.

  20. Chicklet
    Mar 10, 2009 @ 09:49:28

    Maybe … it's more a right not to be held publicly accountable, or a right not to have your “real” or legal self held publicly accountable, rather than a right to keep your “real” or legal self a secret?

    Well, considering that people have indeed been fired from their jobs when their bosses found out they wrote m/m fanfiction, pseudonymity is more often used for protectiveness, not for trying to escape accountability. Same goes for trying to avoid harassment or stalking.

  21. Jane
    Mar 10, 2009 @ 09:57:52

    @Chicklet I think authors want to make this argument. If you speak out against me anonymously, you hurt my ability to sell books and therefore your economic status should suffer from the impact of your words just like your words have economic impact on my work.

    The problem is that there is no empirical evidence that negative comments have an adverse economic impact. Second, the author is placing its economic success directly in the hands of the consumer. Further, an author who chooses to use the authorial platform to publicize their opinions, they do so with the knowledge that their words have greater impact coming from the mouth of the author and that the author, anonymously, doesn’t wield the same power. I.e., if they wanted to speak on the same playing level as the fan, they too could use a psuedonym but choose not to in order to avail themselves of the social standing they gain through their identity as “an author”.

  22. Jia
    Mar 10, 2009 @ 10:03:29

    @Chicklet:

    considering that people have indeed been fired from their jobs

    This is definitely true. Let’s not forget where the term “dooced” comes from. After that happened, more bloggers took care to post under pseudonyms or not talk about their jobs at all.

  23. A New Writer
    Mar 10, 2009 @ 10:03:31

    Jane,

    Thanks for the update. I’d seen the posts when the initial debate started and decided to stay the heck out of it. Sad to see it’s gotten to the state it has, with wounds on each side.

  24. Jane
    Mar 10, 2009 @ 10:38:49

    @Courtney Milan What I read is that the doctors use these waivers to get the message boards to remove the offensive postings which I suppose is subject to the contract. The MB doesn’t have to abide by the K terms because they aren’t a party, but it’s easy to see why a MB admin would cave.

  25. LoriK
    Mar 10, 2009 @ 10:48:17

    I think those who argue for using full legal names on the internet the same way one does in face to face encounters have simply not thought things through. If I have a conversation with someone in real life using my full name I’m in control of what I say and to whom I say it. I can chose to share some parts of myself and keep others private from that person. Also, baring some sort of spying there is no way for people who weren’t party to the conversation to know what was said.

    Online conversations live forever and can be searched. If you post under your full name then every part of who you are online is open to every person who has half decent search skills and chooses to use them. That’s the major reason I never use my full name anywhere online. Add in the possibility of stalkers and I think it’s ridiculous to say that only con men would insist on using a pseudonym.

  26. Courtney Milan
    Mar 10, 2009 @ 11:03:16

    @Jane: Really? That’s totally bogus.

    In my grave and serious legal opinion, those message board owners are a bunch of chicken-hearted wusses.

  27. Robin
    Mar 10, 2009 @ 11:21:00

    Hmm, if those docs accept federal or state money, I would think they could face action that way, especially if the patient making the comment was a Medicaid or Medicare patient. But you might actually have to set up a test case, since so many patients probably wouldn’t know they are signing away a fundamental right. I mean, how many patients know they’re agreeing to binding arbitration every time they consent to treatment? That’s an enormous issue that’s barely made a dent in the public consciousness.

    Also, would the consumer have any cause of action against the MB that caves to the doc? Not a right to privacy action, perhaps, but something related to the anti-SLAPP concerns?

    Anyway, re. Shetterly, didn’t he argue that the person he outed had already publicly connected her LJ to her legal name? Not that it excuses the ethical breach (as someone said, what does it matter that Shetterly didn’t really out the person if he initially *intended* to), but it may moot a legal invasion of privacy action.

    In any case, Shetterly’s actions completely undermine his already troubled argument about anonymity and pseudonymity.

  28. Kathryn Smith
    Mar 10, 2009 @ 11:21:24

    @Jane It’s not even a matter of an anonymous poster hurting an author sales wise. It’s the fact that many anonymous posters hide behind their user names and take cheap shots. For every poster like Anion and others who are rational and responsible, there are 100 who are total nuts. I’m saying this as a person who has been on the receiving end of some pretty mean remarks.

    As authors, yes we might have a bit more clout behind our posts, but we’re expected to behave as professionals. We’ve all seen what can happen when an author tries to defend herself on boards — it can get very nasty. And 90 per cent of that nastiness comes from people named things like “MadHat98″. Then, when readers jump in, they’re labeled fangirls and the author is blamed for that as well. We have no clout then, and it often makes things worse, and ends with the author in the corner of the ring with Burgess Meredith telling her, “You’re a bum!” while cutting her smacked-up eye.

    A long time ago, back when I was still quite new to the business and poor, I did my own website. I really liked the look of Wax Creative’s sites and since I knew Emily Cotler, I asked her for advice. My site came out looking a lot like something she’d do, only waaaaay less polished. An anonymous poster on AAR said that since I’d obviously plagarized Wax Creative, it made her wonder about my books. Needless to say I was astonished. I was proud of that website — I even thanked Emily on the site for her help. So, to have my morals called into question by some faceless — nameless — poster really ticked me off. Emily posted in my defence, but even now I have to wonder how many people read that initial post and were influenced by it.

    Now, I don’t think people should be forced to use their own names. That’s just not right. What next, authors being forced to publish under their own names? But in a perfect world, I’d like to see more responsibility for what’s said when hiding behind a false identity. I’ve long lived by the rule that I won’t say anything about a person that I wouldn’t own up to face to face. Sometimes I’ve said things that make me cringe later, and I wouldn’t want to face the person they were directed at, but I’d still do it. I wonder if that person would have accused me of plagarism if we’d been in the same room. I can tell you this, if we had been face to face, my reply would have been MUCH different than it was on that board. ;-)

    Anyway, I’m sure I’ve made it painfully obvious that this is a very emotional subject for me, so I’ll stop ranting and get back to my work.

  29. SonomaLass
    Mar 10, 2009 @ 11:33:50

    I’m mostly pseudonymous on line because my given name is associated with my professional identity, and I don’t care to have the personal and the professional mingle. Simple as that. I’m sure that’s at least part of why some authors prefer to publish under another name, so that they can use their real name in private life and not have the two conflated. Other authors choose differently, of course, just as some people choose to always identify themselves on line. As you say, Jane, a choice, and I think it’s an important one. I’m very glad to see it being protected, and I’m sure the Brontë sisters would agree.

    I’m also really glad that you posted this, because I was dying to know what was behind Scalzi’s tirade, which he posted after wiping all traces of the kerfuffle from his site. I really like John’s attitude towards trolls in his space, and his “my house, my rules” approach to maintaining his blog and comments. There’s someone who has chosen to maintain one persona, online and off; I respect that, but as you say, he’s made that choice because the professional gains are, to him, worthwhile. I don’t hold with making that choice for other people.

  30. Karen S.
    Mar 10, 2009 @ 11:34:56

    I’ve seen the “why should we trust anyone who uses a pseudonym on the internet” before in the library blogosphere, and it usually makes me boggle. I’m kind of wondering if things have changed since I started using the internet as I remember at the time, it seemed like Rule #1 of the internet was to not tell anyone your basic personal information. Don’t use your real name, don’t tell anyone where you live. Not because of the fear of employers finding you (this was pre-Dooce), but because of internet stalkers and identity theft. Of course I was also a teenager at the time, so it may have just been something pushed to my age bracket.

    Also, seconding the whole “it’s very hard to change your identity” thing. There are a number of cases where people have faked their deaths online and been caught. A lot of the cases I’ve seen were in fandom and done for attention or other reasons, but there have been two cases in the knitting community as well where sellers of yarn or patterns faked their deaths to get out of financial obligations and were exposed.

    Remember, kids, changing pseudonymous identities doesn’t work when people can log your ISP number.

  31. ReacherFan
    Mar 10, 2009 @ 12:02:18

    I disapprove of what you say, but I will defend to the death your right to say it. ~Voltaire

    There is a real element of irony in this complaint. Authors have hidden behind pseudonyms for as long as they have written unpopular tracts – to avoid public castigation or embarrassment, to prevent one work causing the body of their work to become ‘tarnished’, to explore areas that are social unacceptable for one reason or another, to save their lives from a headsman’s ax. And now they decry the very practice that they themselves have hidden behind.

    I think anonymity is actually an essential element to true freedom of speech. People who espouse unpopular opinions become targets. I don’t believe there is any ‘shame’ attached to it, just a reasonable need to feel safe from a world full of self-appointed arbiters of what is ‘correct’ thought – be it religious, political or philosophical. Who would voice a minority opinion if they were to be subject to public castigation, pickets at their house, threats via phone or internet? Would you? It certainly would intimidate me. And that’s how we, as a nation, all too often behave – like a mob determined to stamp out anyone or anything that does not conform with our world view. No rational debate, just vitriol and intimidation in the form of coercive business, financial and social pressure and all too often very real physical threats.

    I’m not a lawyer, I don’t even play one on TV, but I truly believe that maintaining anonymity is essential for anyone who expresses a minority view on any subject – especially inflammatory topics. In the real world, where all of us are exposed to violations of our privacy by internet databases and search engines, this is no joke.

  32. Jessica
    Mar 10, 2009 @ 12:06:14

    @Chicklet:

    Well, considering that people have indeed been fired from their jobs when their bosses found out they wrote m/m fanfiction, pseudonymity is more often used for protectiveness, not for trying to escape accountability. Same goes for trying to avoid harassment or stalking.

    Good point. I didn’t mean to imply otherwise, but of course, I did. Many academics, (especially outside the US) have anonymous blogs for the same reasons.

  33. Estara
    Mar 10, 2009 @ 12:09:33

    @Jia: That’s quite possible. When I read that post he had already deleted the attempt at outing.

    Oh and thanks for rescuing my collection of links ^^. And the layout is only broken on Firefox 2. I can see all of my comment with IE 6, nifty.

  34. allison
    Mar 10, 2009 @ 12:20:37

    @Estara: As far as I’m aware from reading the entry written by the person that was outted and regarding the outting, they had only ever linked their first name to their LJ and not their full legal name, which is what Shetterly did.

    I’ve not been following this all that much, not until the outting, I have to admit. So I’ve only really paid attention to that and the fact that I now have even more authors to add to my “do not buy because they are morons*”

    *nicest word I could think of that I know does not even come close to encompassing the level of fail shown here.

  35. CourtneyLee
    Mar 10, 2009 @ 12:24:59

    @ Karen S: I’m a knitter and I remember well when that whole death-faking debacle happened. It was an example of the downside of attempted internet anonymity, but also a good example of how IP addresses can be a smoking gun. You’d think they would have known better.

    I tend not to be anonymous on the internet, but there have been instances where I have wanted the weight of my words to stand alone without the social capital, as Jane calls it, that I have gained in the places where I post frequently. As others have said and, in Anion’s case, done, anonymity can be used with integrity and for good reasons. Sure, hiding behind anonymity to take potshots is a crummy thing to do, but crummy things happen.

  36. LynnS/AAR
    Mar 10, 2009 @ 12:26:46

    @Leslie Kelly and @Jane – I get the feeling that judges aren’t going to like those agreements. I don’t even pretend to know anything about nationwide trends on them, but I have seen a couple of Virginia courts refuse to enforce those clauses. I saw one in the context of a medical practice trying to enjoin a patient from posting about her experiences with them, and the court refused to issue the injunction, finding a 1st amendment violation. The other was a collections case, and while I know the doctor lost, I didn’t hear all the fine points of that argument because I was stuck between two contractors who seemingly wanted to kill each other. I just remember being amazed that someone even tried to use such clauses.

    I do actually feel sorry for the message board owners. I know laws vary state to state, but if the owners are in a state that doesn’t allow them to collect attorneys’ fees if they win, they’re in a bad position. Even if they ultimately win a case against a doctor seeking to force removal of a post, they’d still be out the legal fees. I don’t like it, but I can understand the financial pressure to cave in.

  37. Maili
    Mar 10, 2009 @ 12:31:19

    I don’t have legal expertise or knowledge, but I have been using the internet since 1990s. I don’t know the full extent of the Shetterly drama, but I can say one thing: Shetterly is not as noble-minded he seems to think he is.

    He seems to be attacking the person (by outing the person) *because* he apparently didn’t like the person’s angle in their debate. It’s his motive for doing what he did that makes it hard for me to take his stand seriously.

    I think the problem with the internet—or rather, people who use the internet nowadays—is a lack of awareness over the Internet’s history. In the old days, the golden rule of the Usenet was “attack the idea, not the person”. In other words, don’t take or make it personal.

    In those days, Outing a person’s real name or posting the person’s street address was strictly a no-no. It was enough to get you banned permanently from a newsgroup, even your intentions were good, i.e. outing a racist or out-of-control troll. Two reasons for that:

    a) it was for the safety and protection of a person, even if he was the most irritating and annoying troll on the electronic frontier.

    b) the Internet was supposed to be a place for people to exchange ideas, express opinions, and engage in debates. All without restrictions and inhibitions. In other words, you can shout ‘Fire!’ in internet-based cinema. It was supposed to be a new type of freedom that wasn’t available in “real life”.

    To have your comments carrying weight, you need to build up your online reputation among regulars as well as be consistent with your stand on certain topics or issues. Your online reputation does count more than your real identity, as Jane already suggested.

    This is why I find it frustrating when people try to apply “real-life” laws to the internet-based activities (putting copyright issues aside, of course!). If you think about it, when a person tries to out a person *because* of what the person said, wouldn’t it be like trying to throw a person out of a public house that you don’t even own?

    There is nothing to stop you from walking away from the person if you didn’t like what the person was saying. Or if the person said it on your blog, what stops you from deleting the person’s comment? Even then, always remember the rule: don’t take or make it personal. It’s really true that the majority online will forget last week’s drama or debate.

    However, if you believe that the person’s comments ARE affecting your “real-life” career or professional reputation, e.g. libel, then you may have a valid reason to go after the person. But in this case, Shetterly has no valid (or as he implies, noble) reason for outing the person’s real identity.

  38. Michelle
    Mar 10, 2009 @ 12:59:34

    The person who was supposedly outed, had linked their first and last name, I repeat first and last name on their site, multiple times. Out in the open, not friends locked. After this was pointed out, I think the person has corrected it. The name was linked by google before this whole mess. There is a whole lot of back story, and swipes taking place-it is not so cut and dried. Here are some good links:

    —edited for reference to poster’s legal name—

    http://shetterly.wordpress.com/2009/03/04/because-the-internets-love-to-be-documented-as-recursively-as-possible-updated/

  39. Leslie Kelly
    Mar 10, 2009 @ 13:29:36

    Well, if I went to a new doctor and were asked to sign one of those, I’d walk back out the door. Not only because of the free speech issue, but because I’d have to wonder why a doctor is so worried about negative feedback–and to wonder if it’s because he’s received a lot of it. IMHO it doesn’t speak well for his own confidence in his practice.

    If my own doctor, who I’ve gone to for a few years and really like, were to suddenly add this provision, it would be a lot stickier.

    I’ll be very interested in seeing how it goes when it lands in the courts.

  40. Robin
    Mar 10, 2009 @ 13:39:20

    I think anonymity is actually an essential element to true freedom of speech.

    YES!

    The Maryland decision Jane glosses contains the following quote of Supreme Court Justice Stevens (from McIntyre, 514 U.S. at 341-42) explaining the rationale behind that argument:

    Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind. Great works of literature have frequently been produced by authors writing under assumed names. Despite readers' curiosity and the public's interest in identifying the creator of a work of art, an author generally is free to decide whether or not to disclose his or her true identity. The decision in favor of anonymity may be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one's privacy as possible. Whatever the motivation may be, at least in the field of literary endeavor, the interest in having anonymous works enter the marketplace of ideas unquestionably outweighs any public interest in requiring disclosure as a condition of entry. Accordingly, an author's decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment.

    Jumping off from Maili’s point, I think the *why* of demanding identity disclosure (or outing someone) is critical in any discussion of ethics (the legal questions are a bit different, although not entirely so), because, as Maili points out, the online world is not fully comparable to RL. Even people who reveal their full, legal names are not actually online as three dimensional people (just ask any celebrity or anyone lampooned online, lol). We are all somewhat disembodied, all voices, and the antecedent issues — authenticity, responsibility, accountability, whatever — change depending on the context. For example, an author may claim the need for pseudonymity for protection from stalking, while criticizing the same in readers who anonymously or pseudononymously criticize in a way the author believes to be unfair. Readers may feel that the public persona of an author, as embodied in the publication of a book, entitles the reader to unveil the “real” identity behind a pseudonymous author, or otherwise publicize what the author might feel are private and personal RL details.

    IMO, we need a different set of ethical rules for the Internet that address the particularities of online existence and identification. Applying the binary opposition Shetterly does, for example, makes little sense to me, because as soon as he tries to assert the RL distinction between a nickname and a pseudonym it’s clear he’s set up a false distinction when he shifts to the online context, in part because a pseudonym online *is* a nickname of sorts, but also because the legal identities of people are not completely off limits for people pursuing legitimate legal claims or criminal investigations. Beyond that, though, there is the double standard that emerges when you consider the case of pseudonymous authors, whom I cannot imagine Shetterly intended to deride in his example, and yet if you give the right to authors to write under another name, why can’t you extend that right to readers? IMO it’s a facile, self-serving, and ultimately self-contradictory argument he’s making, and one that shows the inherent weaknesses in trying to draw the rules for online behavior from the personal and professional interactions of physically embodied individuals.

  41. Leah
    Mar 10, 2009 @ 14:20:42

    Sorry if someone’s already said this, but I’m in a rush and can’t read all the comments right now, but in regards to protecting a Klansman’s identity…. In the 20’s and 30’s, Indiana was a huge Klan hotspot, and there is a cache of materials on that group at the Indiana State Historical Society. You can look at them, at least some of them, but you can’t publish the names of the members–or perhaps you can’t even look at the membership rolls. At any rate, those identities are currently protected, at least until a certain period of time passes. One of my fellow grad students in the ’90’s ran into this and was disappointed. I was too, because I suspect I had at least one relative in the Klan back then (long dead before I was born), and I was curious. On the one hand, I think Klansmen should be exposed…on the other, I can see that anonymity might allow people who have since changed, or are innocent relations, to put that shameful part of their lives behind them

  42. Jessica
    Mar 10, 2009 @ 14:24:50

    MO it's a facile, self-serving, and ultimately self-contradictory argument he's making, and one that shows the inherent weaknesses in trying to draw the rules for online behavior from the personal and professional interactions of physically embodied individuals.

    But isn’t this exactly what the justices did in the decision Jane discussed? Extend anonymity to online individuals on the same basis it is protected for physically embodied individuals? (Maybe I just don’t get it. I’m very confused by this discussion — usually the sign that I am about the learn something worthwhile.)

  43. Courtney Milan
    Mar 10, 2009 @ 14:57:15

    @Robin:

    IMO, we need a different set of ethical rules for the Internet that address the particularities of online existence and identification.

    I don’t agree. The internet facilitates exchange, and allows it faster than it used to–but really, what are the Federalist Papers but a larger part of a revolutionary-era flamewar about the nature of government? It’s all about ideas–if we want people to focus on ideas, instead of derailing the discussion to irrelevancies about identity–then you need to allow some degree of anonymity. In a way, that’s the purest form of argument. You don’t sully the speech with anything about the source; it’s just speech.

    There’s nothing new about the Internet. It’s just faster, and it’s indexed on Google.

    @Jessica:

    But isn't this exactly what the justices did in the decision Jane discussed?

    That’s why I disagree with the statement above.

    I think the mistake that Shetterley made is not in conflating online activity with offline activity, but with mistaking actions with speech.

    There’s a big difference between thinking that someone should be allowed to hide behind the anonymity of a white sheet when he commits real life actions, like burning crosses in someone’s lawn, or lynching someone, and thinking that someone should be able to adopt a pseudonym to make a comment online, or be able to keep his membership in a group private.

    In the late 50s or early 60s, one of the Southern states (I think Alabama?–yes, Google says the case is NAACP v. Alabama) tried to get the NAACP to publicize its membership rolls. The NAACP refused, and the Supreme Court said the NAACP didn’t have to release the list–because the information vould be used to intimidate and brutalize the members was very real.

    Seems rather salient today.

    Up and until the point when someone commits a crime, the very fact that the viewpoint they express is unpopular enough that they couldn’t say the thing to the person’s face suggests that we should allow them to be anonymous–because sometimes, the things you can’t say to someone’s face are the things that society most needs to hear.

  44. Robin
    Mar 10, 2009 @ 15:00:53

    @Jessica: The short answer is no, but I don’t know if I will be able to explain why in the clearest way. Maybe the more precise answer is that Shetterly and the Maryland court are making different kinds of arguments.

    Let me start by saying that there are going to be different issues raised in a legal forum and in an ethics forum. On the most superficial level, Shetterly is making an ethical argument, while the Court, obviously, is making a legal argument.

    Legally, people have a very broad right to free speech under the First Amendment, and because that right is granted explicitly in the Constitution, it is considered a fundamental right, which means the highest level of judicial scrutiny is required in limiting that right. Beyond that, free speech is circumscribed by defamation, so if you defame someone, that is not considered protected speech under the First Amendment. However, to be a proven defamer, a prima facie case must be made against you, against which you have the right to defend yourself. For example, if you make a statement that harms the reputation of another, but you can show unequivocally that it’s true, that is a total defense to defamation, and you cannot be held liable. In any case, defamation must be *proven* not merely asserted. And in this case, the original plaintiff was trying to break the anonymity veil as part of making his assertion. At that point, defamation has not been proven, and the court in this case, on appeal, says, no, you don’t have a right to infringe on someone’s free speech right without certain elements being met. They offer five:

    For guidance of the trial courts when future cases arise, the Court suggested a process to balance First Amendment rights with the right to seek protection for defamation, citing with approval the test from Dendrite Int'l, Inc. v. John Doe No. 3, 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001). Thus, when a trial court is confronted with a defamation action in which anonymous speakers or pseudonyms are involved, it should, (1) require the plaintiff to undertake efforts to notify the anonymous posters that they are the subject of a subpoena or application for an order of disclosure, including posting a message of notification of the
    identity discovery request on the message board; (2) withhold action to afford the anonymous posters a reasonable opportunity to file and serve opposition to the application; (3) require the plaintiff to identify and set forth the exact statements purportedly made by each anonymous poster, alleged to constitute actionable speech; (4) determine whether the complaint has set forth a prima facie defamation per se or per quod action against the anonymous posters; and (5), if all else is satisfied, balance the anonymous poster's First Amendment right of free speech against the strength of the prima facie case of defamation presented by the plaintiff and the necessity for disclosure of the anonymous defendant's identity, prior to ordering disclosure.

    So in this case, it’s not merely the fact of RL v. Internet identity; it’s about the fact that the First Amendment gives you certain rights anywhere, and those rights must be protected against unreasonable intrusion. It’s about the limits of *free speech* as opposed to the identity of the speaker, per se.

    Shetterly’s argument, on the other hand, is of a different character. His argument is that people online who are anonymous or pseudonymous online are evading culpability, so in one sense it seems like his argument is merely the inverse of the Maryland court’s. But I think Shetterly is far more concerned with the identity of the speaker than the character of the speech, so the way he construes an online/RL relationship is grounded in the concept of “legal name” or “legal identity.” He’s saying that’s because people should be responsible, traceable, for what they say, but the cynical interpretation is that he’s trying to justify outing someone because he didn’t like what they said. His logic is actually predicated more on the concept of fraud, but in any case, his invocation of the law is different, as is the entire foundation and focus of his argument.

    That doesn’t mean there isn’t overlap between the issues that the Maryland court deals with and the issues Shetterly deals with. After all, there’s lots of intertwining in the issues around free speech as a legal right, privacy issues, and related concepts of identity. But ultimately I think Shetterly’s position would put him conceptually at odds with the decision of the Maryland court, because if you look at his own actions (the outing), his basic premise seems to be that the speaker in question in his case should not have/did not have that right, regardless of what she/he said. But even still, the arguments are not directly relateable in that way, IMO.

  45. Robin
    Mar 10, 2009 @ 15:06:32

    I don't agree. The internet facilitates exchange, and allows it faster than it used to-but really, what are the Federalist Papers but a larger part of a revolutionary-era flamewar about the nature of government? It's all about ideas-if we want people to focus on ideas, instead of derailing the discussion to irrelevancies about identity-then you need to allow some degree of anonymity. In a way, that's the purest form of argument. You don't sully the speech with anything about the source; it's just speech.

    I don’t think we’re saying different things, actually. I was specifically responding to Shetterly’s logic, but I think you’re making a larger point about the importance of privileging speech over the identity of the speaker. And with that I am in total agreement. But if you’re talking specifically about Shetterly’s argument, which IMO is premised on the concept of identity and accountability, which he wants to extend to online speech, I say we need a different model. I realize now that I should have extended my comment to cover the broader implications of that idea, especially since Shetterly’s conceptual model is different than that of First Amendment law, but I hadn’t actually parsed through that distinction until I tried to answer Jessica’s question, lol.

    And I guess I should also say that I feel the need to distinguish the ethical issues from the legal issues, but I would be here for the rest of the afternoon trying to track through all the points of convergence and divergence, let alone distinguishing the different conceptual frameworks in play here among all the different participants in this discussion. But I’m definitely aware of the fact that I’m eliding a bunch of stuff in my comments.

  46. Courtney Milan
    Mar 10, 2009 @ 16:03:10

    @Robin: Fair enough. We can easily agree that internet ethics and manners are very different from in person ethics and manners, and that Shetterly’s logic is probably not one that parses well under any legal framework, whether you consider it law of the internet or broader First Amendment principles.

  47. Julia Sullivan
    Mar 10, 2009 @ 19:24:09

    ReacherFan wrote: I disapprove of what you say, but I will defend to the death your right to say it. ~Voltaire

    Shirley you mean Francois-Marie Arouet?

    Actually, Voltaire didn’t say that–it’s a paraphrase by his biographer S. G. Tallentyre Evelyn Beatrice Hall.

    The irony, it comes in layers. Like a delicious cake.

  48. Edith
    Mar 10, 2009 @ 20:41:20

    To build on what Michelle @38 said about Shetterly outing someone:

    She has a very unusual first name and she’s been published. I googled her first name and SF or sci-fi or something like that and got her full name. Not from Shetterly’s blog or anything connected with Communication fail.

    Shetterly had a good rep in the SF community before all this went down. His posts when other internet storms occurred were peacable and reasonable. I see no reason to think less of him, but do wish he would STFU.

    And, FWIW, I use an alias. My name is very unusual. Laurie Gold once wrote a column and used my full name and my work email address in her column. I could have killed her. Since then, I post using an alias. Not that I don’t stand behind what I say. I just don’t want the people at working snooping on my private life (one of the guys I work with is a total asshat and likes to make fun of what I’ve posted on the net and share yuks with the other guys).

  49. ReacherFan
    Mar 10, 2009 @ 23:30:16

    Julia

    I see a website that agrees with you, yet I found that attribution on another. :-) As for Voltaire, who refers to him by his real name? I see you found the response on Yahoo.

    http://ask.yahoo.com/20030331.html

    Or

    http://www.quotationspage.com/quote/331.html

    and yet it is listed as Voltaire here
    http://www.brainyquote.com/quotes/authors/v/voltaire.html

    I’m always happy to be corrected.

    RF

  50. MaryK
    Mar 10, 2009 @ 23:52:30

    @LoriK: Well said!

    @Edith:

    I just don't want the people at working snooping on my private life (one of the guys I work with is a total asshat and likes to make fun of what I've posted on the net and share yuks with the other guys).

    Sheesh! That’s a reason for anonymity if I ever heard one!

  51. karmelrio
    Mar 11, 2009 @ 09:09:06

    Here’s an interesting spin on this topic, which occurred within the last few days:

    A reader of the Pharyngula blog, pissed off about a statement the blogger, PZ Myers, made in another forum, sent an email to Myers expressing his displeasure. No problem so far. The guy even “signed” it, in the sense that the email was from someone with a rather traditional, rather than pseudonymous name. (Go to http://scienceblogs.com/pharyngula/2009/03/you_can_stop_now_jim.php if you want more specific info.) For purposes of this email, we’ll call him Jim.

    Lo and behold, suddenly Myers starts receiving emails from gay porn sites, asking him to activate his new subscription.

    Jim. Dude. Your email had your IP address on it. The porn subscription requests? Why, lo and behold, whaddaya know, all had your IP address on them. And all it took Myers was one hop/skip/jump to (a website which shall not be named), where he obtained the city and state where the IP address was logged.

    Jim was promptly outed on Pharyngula.

    The lesson? There is no anonymity in cyberspace. NONE.

  52. karmelrio
    Mar 11, 2009 @ 09:12:28

    Here’s an interesting spin on this topic, which occurred within the last few days:

    A reader of the Pharyngula blog, pissed off about a statement the blogger, PZ Myers, made in another forum, sent an email to Myers expressing his displeasure. No problem so far. The guy even “signed” it, in the sense that the email was from someone with a rather traditional, rather than pseudonymous name. (Go to Pharyngula if you want more specific info.) For purposes of this email, we’ll call him Jim.

    Lo and behold, suddenly Myers starts receiving emails from gay porn sites, asking him to activate his new subscription.

    Jim. Dude. Your email had your IP address on it. The porn subscription requests? Why, lo and behold, whaddaya know, all had your IP address on them. And all it took Myers was one hop/skip/jump to (a website which shall not be named), where he obtained the city and state where the IP address was logged.

    Jim was promptly outed on Pharyngula.

  53. karmelrio
    Mar 11, 2009 @ 09:15:06

    sorry for the duplicate post – received a server error on the first post attempt, and ???

  54. Who’s Rulin’ Who? | Dear Author: Romance Novel Reviews, Industry News, and Commentary
    Mar 17, 2009 @ 04:00:33

    […] of group behavior.   I hadn’t thought a lot past this point until last week’s excellent discussion on internet anonymity, and more particularly after Jessica’s thoughtful question about the […]

  55. will shetterly
    May 10, 2009 @ 12:28:26

    Since Michelle linked to the earlier account of what happened, here are the updates:

    writing about race: anti-racism and racefail 09

    on pseudonymity and nuking my WordPress blog

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