We’ve been here before. In 1890, future Supreme Court Justice Louis Brandeis, along with attorney Samuel Warren, wrote an article that appeared in the Harvard Law Review that addressed the issue of a person’s right of privacy. It marked the first time privacy was articulated as an explicit right deserving of protection under the Constitution, although neither the term nor notion were novel: privacy has roots in common law, but not as a stand-alone proposition.

Brandeis and Warren wrote the article in response to what was generally seen as a media run amok. Newspapers were accused of overstepping the bounds of propriety in coverage of intimate personal details; Warren, a member of Boston society, supposedly objected to an article that described his family’s household routine, but such articles were becoming the norm.

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Legal scholar Dorothy Glancy, writing on privacy in a 1979 Arizona Law Review piece, noted that the Brandeis article also appeared against a backdrop of technological advances: the telephone and telegraph were both increasingly in use, and both brought a swiftness and ease in means of communication that were unprecedented. In addition, Glancy writes, affordable portable cameras were available on the market and provided almost instantaneous photographs — gone were the days of posing in a portrait artist’s studio; on-street candid snapshots were now possible. New sound-recording devices at the time basically allowed eavesdropping to move out of the realm of hearsay.

All of this, coupled with intense newspaper competition — we were less than a decade away from remembering the Maine, when a circulation war vaulted the United States into war over Cuba — Brandeis and Warren feared threats to and encroachments on gentility from what they termed a “too-enterprising press.”

The bedrock of Brandeis’ and Warren’s argument was that the guarantees of life, liberty and property extended to intangibles such as privacy: Just as your livestock and land were to be safe from wanton or random dispossession, so was your spirit, which meant, as outlined in the article, you — we — had a right to be let alone.

What’s different about today, aside from the technology and the way it promulgates the ubiquity of information, is that the debate has been slightly recast: the emphasis is not on the person who wants to be let alone, a la Greta Garbo, but on the people who comment, criticize and castigate today’s Garbos and whether they have a right to do so under a cloak of anonymity.

YES, BUT NOT ON NEWS TURF

The answer is obviously yes — because they can and do — but also no.

Brandeis and Warren likened the concept of privacy to a more widely accepted concept well-established in the law, that of libel, but said libel law didn’t go far enough in protecting individuals.

The debate about online anonymity is centered on protecting individuals, but it protects the wrong individuals, and does so for the wrong reasons. An anonymous speaker should not be protected — to do so is anathema to the idea of the town square and our understanding of public debate. Remember, the constitutional guarantees on speech prevent Congress from making laws to limit it, not to protect a speaker from having to take responsibility for speech. Indeed, libel and slander protect — to stick with the example above — the Garbos from reckless, false and defaming statements. Under the cloak of online anonymity, a Garbo has no recourse if libels are made.

There is no constitutional right to hide.

If anything, there should be a constitutional responsibility to stand publicly with or behind one’s speech. News organizations have struggled with how to handle online anonymity, with many allowing anyone to post anything without any sort of identification, or identification that is self-policed, meaning not policed at all. This started in the spirit of trying to spur dialogue and participation among readers, taking advantage of the 360-degree ability online storytelling provides. With newspapers, radio and television, the communication dimension is flat; everything is broadcast from the source out to the consumer. Online, readers and viewers and listeners can talk back, and talk among themselves, keeping a story alive after it is told.

As that talkback was abused — by irresponsible, off-point and product- or agenda-peddling users — news organizations have redefined participation, with some not allowing any comments whatsoever and others requiring a verified registration and others linking a poster’s comment to other social media platforms under the presumption that a person would act more like he or she would on, say, Facebook or Twitter.

Anonymity online, through a news organization perspective, should not exist.

News organizations should not permit anonymous comments because of the abuse that it foments and the questions it sows in the minds of the readers, viewers and listeners. A reporter can and should, within reason, protect a source’s identity, across a spectrum of rationales, be it whistleblower or a victim of abuse, but someone coming to a news organization’s story can, does and should have a reasonable expectation that the value of that source has been vetted and evaluated by the reporter and the editors. Someone posting something beneath an online news story could have any motive of any impurity, has not been vetted by the news organization and the news consumer certainly has no independent means of evaluating the information.

COMMENTERS AS SOURCES

For instance, if Seymour Hersh’s anonymous source in the story about the raid that killed Osama bin Laden had posted instead an affidavit to the London Review of Books website, for all any reader would know, it would be fiction, or propaganda written by a source looking to undermine the president or the United States or the Pakistani military or any number of possibilities. If that anonymous source approached an untested intern at the London Review of Books on her first day on the job, a reader would be right to call into question that intern’s judgment in evaluating the veracity of a source. As it is, Hersh, with decades of experience exposing scandal dating all the way back to the My Lai massacre, is being violently questioned about the veracity of his anonymous source and what agenda Hersh and the source might have.

Even in the case of a Hersh, with a verifiable body of work and reportorial track record, a reader cannot truly suspend the desire to see for him or herself. Nor should they be asked to. Too many officials have practiced the dark art of manipulation, and too many reporters have been willing stooges, whether because it’s an agenda in which the reporter believes or because the reporter will do anything for a story or because the reporter doesn’t realize he or she is being played. Look at Judith Miller and her work at the New York Times reporting on weapons of mass destruction in Iraq. There is very little agreement on where the truth lies in her reporting; political partisanship clouds judgment even at this remove, with otherwise reasonable people watching her on Jon Stewart and reaching diametrically opposed conclusions about whether she is a reporter maligned or whether she was an administration tool. Imagine if her sources instead had posted their information directly to the Times’ website as comments to articles about Iraq. That form of anonymity would have discredited the information in an even more complete way.
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In Brandeis and Warren’s article, a key point was that a person surrenders privacy rights by revealing his or her own information or agreeing to its release. The flip of that should be that a commenter on a news website surrenders a right to anonymity by logging in to post a comment. Almost every entity that exists online, be it your bank or your dry cleaner, has a user agree to terms of service. A requirement of posting comments geared toward sparking a public discussion, whether of a public official or a governmental policy or a public agency action, should be that the poster agrees to be identified. There are many means of getting a story of an injustice out into the world that can protect a person’s anonymity when it’s vital that that be protected; unfettered anonymous commenting should not be countenanced.

Take the case of one woman, long deceased, who by all accounts was a delightful and loving person, a good mother and caring wife with many friends. She also relentlessly harassed a high-ranking official in her community by calling his home late at night and hanging up. Repeatedly. The technology at the time was so limited that the harassment continued until the official was able to persuade — beg? demand? — the phone company to become involved and, eventually, trace the source and address the harassment. That was one person using her anonymity to harass one family. With technology today, one person has exponential power across a much greater swath of community or society to harass or sow lies. We must have checks.

In another case, an estranged member of one of the first families in a small farming community wrote anonymous letters to the editor making all manner of scandalous claims against other members of his family. He became angry that his letters weren’t being published and once showed up in the newspaper office to confront the editor about why. The editor explained the policy against allowing people to make potentially libelous claims anonymously and that even though the editor now knew the identity of the writer that the letters were still too damning to warrant publication. So stymied, the man took to writing postcards that contained the claims, satisfied that even if the newspaper wouldn’t print them, perhaps the scandalous nature of the claims would be seen and whet the gossiping proclivities of the employees of the post office. The postmaster and the editor shook their heads over the lengths to which this man wanted to go to say terrible things about his family members. Imagine that man’s irrationality and unreason in an age that allows anyone with an Internet connection the ability to communicate on a mass scale. That man was held in check by a system of belief and propriety that protects the right individuals against scathing claims.

In another case, a grown woman and mother of two who had been adopted as a child broke down and cried in confiding about a decades-long campaign by an anonymous person. Each time the woman or any member of her family — parents, husband, siblings, in-laws, children — was mentioned in the community’s paper, she would receive a letter, usually a greeting card, in which unspeakably hateful things were written about her parentage. Imagine that letter-writer with an ability to SWAT or publish scurrilous diatribes where they could be consumed on a grand scale.

All three of these anecdotes — the identifying details do not matter in these cases as the privacy implications are crystal clear — are from the era before we went online. All three are perversions of common sense and propriety. Imagine the power all three would have today if they were able to hide behind the anonymity online provides.

We talk of rights of speech and protections against impingements on that speech, but too easily lost is the other R-word, responsibility. The constitutional guarantees are not intended as rights without responsibilities. All of the rights come with responsibilities and parameters. Even though the authors of the Federalist Papers wrote under pseudonyms, as did their lesser-known counterparts who argued against the ratification of the Constitution, they were not doing so irresponsibly and their authorship was generally supposed as coming from an informed quarter and  not focused on personal or ad hominem attacks on opponents.

In the online marketplace of ideas, we need protections from online anonymity, not protections for it.

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The views and opinions expressed here are those of the writer and do not necessarily reflect those of Boise State University, the Center for Idaho History and Politics, or the School of Public Service.

  • Liza Long

    “There is no constitutional right to hide.” It’s interesting that you chose Seymour Hersh and not Deep Throat, who was finally posthumously revealed to be Idahoan Mark Felt. Could the Watergate story have been told without anonymity? We trust journalists to tell the truth, and when they don’t (e.g. recent Rolling Stone fiasco) we have to hold them and editors accountable.

  • Susan Park

    Interesting thoughts. I have several comments to which I’m interested in hearing your response.

    You wrote: “The debate about online anonymity is centered on protecting individuals,but it protects the wrong individuals, and does so for the wrong reasons. An anonymous speaker should not be protected — to do so is anathema to the idea of the town square and our understanding of public debate.”

    The constitutional argument that one has the right to speak anonymously online is largely based upon 1st free speech rights, not privacy rights. And thus, I think much of what you write misses the important constitutional point. The right to speak freely – anonymously or otherwise – is FAR from anathema to the idea of the town square.

    Similarlly, you suggest: “Even though the authors of the Federalist Papers wrote under pseudonyms, as did their lesser-known counterparts who argued against the ratification of the Constitution, they were not doing so irresponsibly and their authorship was generally supposed as coming from an informed quarter and not focused on personal or ad hominem attacks on opponents.”

    This premise of this statement appears to be that our speech rights should only be granted to those who speak responsibly. Responsible according to whom? How would such a limitation be anything BUT anathema to the hallowed “marketplace of ideas” premise upon which the 1st Amendment is based?

    “Under the cloak of online anonymity, a Garbo has no recourse if libels are made.” This is simply not true as an absolute statement. People certainly do have recourse if they have been defamed online.

    Lastly: “Anonymity online, through a news organization perspective, should not exist.” Fine. Because news organizations have no obligation to allow speech of any kind, and therefore the constitutional right to free speech isn’t even implicated in this context.