Wednesday, March 30, 2005

The Silencing of GayPatriot

Word moved swiftly across the blogosphere about the silencing, by intimidation, of the anonymous blogger, GayPatriot, a self-described conservative Bush supporter whose blog has had more than 200,000 visitors since its launch in September 2004.

GayPatriot had published an incendiary challenge to left-wing gay activists Michael Rogers and John Aravosis, who have in recent months been "outing" closeted gay conservatives and Republicans, sometimes with solid, sometimes with flimsy evidence. Their biggest trophy: former Virginia Congressman Ed Schrock, who withdrew from his re-election race last year under a cloud of accusations that he had arranged sexual liaisons through a gay telephone dating service.

Yesterday, the Washington Blade (a highly respected gay newspaper) revealed the identity of the erstwhile anonymous GayPatriot, even going so far as to publish his photograph on the Blade's online-only blog. (It remains to be seen whether this controversy will be discussed in the Blade's primary, print publication, or if it is more of a tempest in a blogger's teapot.)

Is there a protocol for revealing or protecting the identity of an anonymous blogger?

My view is shaped and expressed by Justice John Paul Stevens' opinion in McIntyre v. Ohio Election Commission (1995):

Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind." Talley v. California, 362 U.S. 60, 64 (1960). 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 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.

* * *

Under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent. Anonymity is a shield from the tyranny of the majority. See generally J. S. Mill, On Liberty, in On Liberty and Considerations on Representative Government 1, 3-4 (R. McCallum ed. 1947). It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation--and their ideas from suppression--at the hand of an intolerant society. The right to remain anonymous may be abused when it shields fraudulent conduct. But political speech by its nature will sometimes have unpalatable consequences, and, in general, our society accords greater weight to the value of free speech than to the dangers of its misuse. See Abrams v. United States, 250 U.S. 616, 630-31 (1919) (Holmes, J., dissenting). Ohio has not shown that its interest in preventing the misuse of anonymous election related speech justifies a prohibition of all uses of that speech. The State may, and does, punish fraud directly. [footnotes omitted]

Since the Federal Election Commission is considering regulations that may inhibit bloggers from "electioneering" (i.e., expressing their views about candidates in contravention of McCain-Feingold's First Amendment-emasculating provisions), it would be good to keep these principles in mind -- regardless of whether we are bloggers or not.

Now, I understand there is a difference between the government forcing a revelation of an anonymous pamphleteer's identity (or a blogger's identity) and a political adversary doing so through private investigations and the open press. But there's still something unseemly, almost creepy, about the latter practice, which should be discouraged as a matter of decorum in public discourse.

Cato, Publius, GayPatriot ... a tradition lives on. But will it be allowed to continue?

1 comment:

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