A Right to Anonymous Speech but Not a Right to Sue for Outing

by on June 16, 2009 · 4 comments

The Gawker offers a fascinating discussion of the legal right to anonymity:

“There is clearly a moral case that some people should be able to join the public debate and retain their anonymity,” Tench told Gawker. “And I think this will have a chilling effect. Blogs like this can only exist anonymously, and I imagine that anyone who wanted to set one up is thinking about this case.”

As well they should. But the notion that anonymous publishers have a right, in perpetuity, to keep their identities a secret—or that people who learn their identities are honor-bound not to reveal them—is nonsense.

Amen! One can resist, fiercely, government efforts to reduce online anonymity through age verification or identity authentication mandates, as Adam Thierer have argued most recently in our work about efforts to expand COPPA to cover adolescents (“COPPA 2.0,” which would indirectly mandate age verification for large numbers of adults for the first time).  One might even argue that there are moral reasons to resist the urge to out pseudonymous/anonymous bloggers (just as one might avoid outing closeted gays out of respect for their privacy).   But one need not accept the pernicious idea that the government should punish the outing of peusodonymous/anonymous writers, which is simply a restraint on legitimate free speech.

This exchange, cited by the Gawker article, is particularly interesting, and demonstrates how one can distinguish the question of whether outing is “right” or “appropriate” from the question of whether it should be punished by law:

When the National Review‘s Ed Whelan revealed Publius, who writes for Obsidian Wingsto be a professor of law at the South Texas College of Law named John F. Blevins earlier this month, the palpable online outrage forced Whelan to apologize.

  • http://enigmafoundry.wordpress.com eee_eff

    This exchange, cited by the Gawker article, is particularly interesting, and demonstrates how one can distinguish the question of whether outing is “right” or “appropriate” from the question of whether it should be punished by law:

    When the National Review’s Ed Whelan revealed Publius, who writes for Obsidian Wings, to be a professor of law at the South Texas College of Law named John F. Blevins earlier this month, the palpable online outrage forced Whelan to apologize.

    It seems your problem is really with the fact that there is a social consensus that what Ed Wheelan did was wrong. No one is proposing to make “outing” against the law (although someone could conceivably be sued for the tort of public disclosure of private facts in a civil case) because that would have obvious first amendment problems.

    It is easy to attack a straw horse of aa problematic law; however Berin, between the lines it seems that your real problem is with a social norm, not a law…

  • Joshua09

    Different issues come up when Obama wins the election. How Obama got elected was a controversial issues to some American citizen. How Obama Got Elected is also the title of a documentary by John Ziegler, whose film purports that he was elected because the mainstream media was mean to Sarah Palin. It has been suggested that Obama was elected was via a process called voting – which has not occurred to Mr. Ziegler, who isn’t famed for intellectual prowess – and on a recent interview with Contessa Brewer on MSNBC, his microphone was cut due to his refusal to not act like an idiot. Many would give big cash advances to make How Obama Got Elected to go away and Ziegler to shut up.

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