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:
- 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;
- 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;
- determine whether the complaint has set forth a prima facie defamation per se or per quod action against the anonymous posters; and,
- 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.