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Wednesday, August 26, 2009

Anonymous Postings

I wrote this in the AM, but set it to post in the PM.  My reason was to provide a pause, given the passing of our Senior Senator.  I wonder if I should write to Randy Cohen of The New York Times and ask him if I am acting ethically?

Mr Cohen, who writes an ethics column for The New York Times, has a column today on anonymous blogging and commenting.  A hat tip to Professor Ann Althouse for this article.  Here is the issue:
Last week Judge Joan Madden ordered Google to identify the anonymous blogger whose site, “Skanks in NYC,” hosted by a Google subsidiary and now removed, slammed the fashion model Liskula Cohen.
Jumping down to Reporter Cohen's "bottom line" we find this:
Here is a guideline.  The effects of anonymous posting have become so baleful that it should be forsworn unless there is a reasonable fear of retribution.  By posting openly, we support the conditions in which honest conversation can flourish.
Maybe OK on the surface, but I see two problems with this.

The first problem is that he has carved out a hugh exception for reporters.  Personally, I think anonymous sources is ruining Washington.  Forget fashion model Liskula Cohen, what about Leon Penetta, the Director of the CIA and the rumor he is going to step down?  What about "Deep Throat," a disgruntled FBI senior manager who thought he should have been made the Director after the passing of J Edgar Hoover?  Going to the ethical question, did the ends justify the means?  Or, from a legal point of view, does the Cohen case set a precident that would allow a future President to sue a future Woodward and Bernstein for the name of "Deep Throat"?  In for a penny, in for a pound.

Secondly, notwithstanding Reporter Cohen's argument that "times have changed," they haven't.  If it was good enough for Ben Franklin, why isn't it good enough for Rosemary Port?

Then we have this item:
But conditions change, and what was benign in one setting can be malignant in another; that’s why we no longer allow people to wander the streets of our cities carrying guns.  (O.K., we do allow that.  But we have a good reason:  to protect ourselves from marauding dinosaurs.)
The fact is we do allow people to wander the streets of our cities carrying guns.  It is just that New York City hasn't heard about the Heller Case.  Some man even showed up at President Obama's Health Care Town Hall in Portsmouth, NH, with an "assault rifle" and a pistol.  No harm, no foul.  No law broken.

I believe report Randy Cohen is currently off the beam and needs to start listening for the "A" and the "N" and then make a course correction.

Regards  —  Cliff

  Please note that my link is different from the one in The New York Times.  I think that is ethical in that (1) I did identify it and (2) by going to the article you can find the original link.
  One wonders if Reporter Cohen is related to fashion model Cohen.  Reporter Cohen notes that he was once married to Katha Pollitt.  He notes that the Model Liskula Cohen, who went to court to force Google to out blogger Rosemary Port, is an acquaintance of the previously anonymous blogger.
  I am not saying that Richard Nixon was a good President or that he shouldn't have resigned.  I am saying that "Deep Throat" played a dirty game out of personal animosity.
  This is a long clip, but the interesting part about the "gun totter" is from about 1:56 to about 2:56.  Note that there is a 15 second advert in the beginning, before the clock restarts.


Shawn said...

We do not, however, allow people to meet in public and protest while wearing masks (such as the KKK).

There are limits to freedom, and responsibilities that go along with it.

The first amendment lists 5 rights.. along with the freedom of speech and press, is also the right to redress.

And I do believe that originally the freedom of speech was intended to mean "political" speech.. not freedom to libel and slander at will.

Michael Roberts Internet Libel Litigation Consultant said...

In many cases horrible problems have been avoided for the community as a result of anonymous blogging. This includes whistleblowing for white-collar criminals, community awareness when sexual predators move into the neighborhood, and many other alerts that are of great community benefit.

Benefits notwithstanding, you can't make an omelette without breaking eggs and anonymous free speech on the Internet is one such omlette. There is no such thing as free speech, there is always a cost. Sometimes that cost is acceptable, moreover desirable, particularly in the case of positive community awareness. But often their many false and deceptive rumors, and libelous attacks are motivated only by hatred and vindictive antisocial promptings. More often than not, these serial cyber defamers have some type of antisocial personality disorder. They have nothing better to do than hurt other people, in fact they are actually fueled by other people's pain. Normal people like 97% of the readers of my comment cannot begin to relate to how these people think. Stop for a moment and imagine not having a conscience..... is simply impossible.

A concerted, focused and malicious Internet smear campaign can be as devastating for a person that relies on his or her reputation for employment as a fire can be for a farmer who loses his fields, barns, and livestock.

Respectfully submitted by Michael Roberts. Internet Libel Victim's Advocate.

ncrossland said...

A bit late to the Lufberry, but better late than never.

First, Shawn, I am not certain that people are not allowed to meet in public and protest while wearing masks. What Federal statute prohibits it and what are the conditions of the prohibition?

It is always interesting to listen to debates about free speech and to marvel at the situational employment of words to convey meaning. What is "political speech" and who gets to define it, much less enforce the boundaries. Will the current administration appoint a Czar for Political Speech Acceptability?

And then there are the terms "libel" and "slander." One man's libel or slander are easily another man's truth. I am quite certain that most democrats consider much of the rhetoric about their party icon to be "libelous" and "slanderous" given the Webster definitions for such. On the other hand, members of the Vast Right Conspiracy would consider those same utterances to be ground truth. So, when we talk about the rights of free speech not extending to slander or libel, by whose definition shall we we just and punish?

The American society has for many reasons, to extensive and pervasive to discuss in a single blog, lost a critical degree of what used to be called "civility." We no longer respect and encourage honest debate of issues engaged in to resolve as much as possible differences and achieve a centrist position.....or in the worst case.....a simple acknowledgement of respectful disagreement. Why is it necessary for you to seek vengence up me because I happen to like red meat or fur coats? That I consume both does not materially affect your life in any tangible way, so how are you, as a single entity, harmed by my choices in that regard? And yet, there is a very quick and ready tendency in our society to not only disagree, but to viciously attack the opponent in such a way as to literally and figuratively destroy that person.

In the end, concepts such as freedom are subect to the holder of power and the degree to which the holder has power over others. The history of mankind is replete with examples of the effect of power and the practices of "freedom." It is NOT the quest for or protection of freedom that motivates men to action. It is the unvarnished lust for power.

C R Krieger said...

Crossland is late, but prolific.  That is what happens when you get too many advanced degrees.

As for Michael Robert's comment, the point about malice and libel is a good one, but the judge should be able to seal all the records if the finding goes against the plaintiff.

To say there is no "free speech" is to obscure the point about the First Amendment, while trying to make another important point.  The First Amendment is too important to obscure.

Regarding masks in public, Justice Sotomayor, then a Federal Judge, joined the majority in holding that New York’s anti-mask statute was constitutional both on its face and as applied to KKK protestors.  That was in Church of the American Knights of the KKK v. Kerik, 356 F.3d 197 (2d Cir. 2004), a case brought by the New York Civil Liberties Union.

At this point I declare myself to NOT be a lawyer and that I am NOT offering legal advice.  That said, I stumbled across this item from the US Supreme Court McINTYRE v. OHIO ELECTIONS COMM'N:

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.

Regards  —  Cliff

ncrossland said...

I am guessing that Michael's comment about there being no free speech invited a bit of cognitive dissonance. Yes, Michael, free speech is not free. There is a cost and that cost is the repression of the human urge to gain enough power to restrict free speech, by any means possible. In American society, one of the more prevalent means is legal bullying. If you say something that I find objectionable, I will sue you, and even if I don't win in court, I have at the very least smeared you with some degree of public disdain for your misspent utterings. We have become extraordinarily bereft of substantial derma when it comes to undesired commentary regarding our beliefs or practices...especially so when there is the possibility of a legal crucifixtion of the object of our dislike....and the hope of even a nice financial windfall as a result.

Gone are the days in American society when we believed our parent's admonition to disregard what others say or think about us. To thine own self be true. We've found means today to invoke that axiom, but apply it only to ourselves insisting that others can't remain true to themselves or their beliefs. We are litigious and vengeful to an unprecedented extreme.

In the course of the war in SEA, I found myself being spat on by unbathed folks with long greasy hair, calling me an oppressor, a baby killer, and those are just a few of the publicly repeatable labels thrown my way. I absolutely did not agree with a word those folks said, but I was a career military man, engaged in performing duties that other fellow Americans, for their own personal reasons, did not want to perform, and I did those things in order to protect the RIGHT for those others to not do what I did and for them to say bad things about the nature of my business and me for doing that business.

Were their comments libelous or slanderous? I thought that they were, but, at the end of the day, in a court of law, the answer to that question would have been provided by who had the more articulate attorney, me or the ACLU, and whether or not the sitting judge had a belief system that accomodated my line of work as honorable.

BTW, the threat of legal action against the misbehaviors of others has been pretty much proven to be of little value in discouraging or preventing future occurances of such behavior. Medical malpractice suits are the best case in point. After millions of malpractice lawsuits, has the incidents of medical errors decreased? Actually, the answer is "no." They've increased. Why hasn't litigation and resulting punishment been effective in preventing those lousy doctors from inflicting harm? Well, because with few exceptions, the errors are almost inevitable and to an extent unavoidable if one practices medicine long enough, or today, uses a lot of technology. We do nothing to focus on the cause of errors....only on punishing the doctor making the error.

And so, libel, slander, and the "cost" of speaking freely have nothing to do with improvement of society in terms of its fairness or toleration of others. These are only tools of power, to punish some other person with whom we disagree or dislike.

the other cliff said...

For what it is worth, times have changed. It used to be that if you wanted to slander people, you could reach a few hundred by shouting in the town square of a large city; maybe a few thousand if you kept at it. If you wanted to libel them, you had to buy very expensive paper and pay a skilled tradesman to either transcribe by hand or print on a press your message, which could get distributed as fast as a horse or the wind could carry it. Today, there are very few economic or practical limits on how fast you spread your libel around the globe with a few keystrokes. By the same token the victim of defamation also has access to the same media to defend him or herself at little cost.

I'm not sure that means that we need to amend our Constitution to deal with the new circumstances, however. I think that a wise application of the existing doctrines can handle the problem well enough.