I want to make three points: (1) why I blog anonymously, (2) why I disagree with some people — including some people I respect — that there is anything inherently wrong with anonymous blogging, and (3) why I think that Whelan's action — while entirely legal and protected by the First Amendment — was worthy of contempt.
I. Why I Blog Anonymously
I blog anonymously. Perhaps I should say "anonymously", because I have revealed sufficient details to let a clever person with some time and skills determine my identity. (Patrick, by contrast, is more circumspect; it would be extremely difficult to out him based on his writings here.) One journalist has actually done so; he wanted me to source a trial story I told about a judge for an article he was writing about the judge's career. It's only a matter of time before I annoy someone with sufficient smarts and time — or sufficient money to hire someone else with smarts and time — who outs me to "the public." When that happens, I will accept the social consequences of what I have written.
So why do I blog anonymously? There are a bunch of reasons. Central to all of these reasons is my style, and the content of this blog. Some of the things I write about are serious, and sometimes I even treat them seriously. But anyone who reads this blog knows that my favored tools are satire, sarcasm, and ridicule, which I think are potent weapons in the fight over ideas. People don't like being made fun of. Moreover, some people are functionally incapable of understanding irony, sarcasm, and satire. Other people are offended easily, and particularly by pop culture, sexual references, and the various forms of juvenile self-indulgence occasionally featured here to the extent it amuses us. So:
1. I blog anonymously because of my employment. When I started, I still worked for a big law firm. Big law firms are notoriously unfriendly to employee blogging, and mine would not have appreciated me addressing controversial issues (or, probably, using other than PG language) under the same name featured on their web site. That consideration no longer prevails; I'm a partner in a small firm now, with much more freedom. However, I still don't want to buy trouble for my partners. More about that below.
2. On a related point, I blog anonymously because I have clients. Now, some bloggers I respect — Scott Greenfield and Marc Randazza, for example — run small firms and blog rather vividly under their own name despite having clients capable of Googling them. It may be that Marc and Scott are more confident in their relationship with their clients, or that their array of clients is different than mine. Mine range from small-time criminals to substantial corporations, and at least some of them might be upset by my blogging. I don't expect that they would be upset in a he-made-an-unfair-anonymous-attack-on-someone sense. But they might be upset in a we-disagree-on-[social issue] sense, or a you-made-fun-of-people-who-support-[candidate] sense. Certainly I would no longer feel comfortable telling dumb-client stories, which I feel illuminate the condition of being a lawyer. (I never make clients identifiable to others in such stories, though many would recognize themselves, and most might resent a lawyer complaining about clients as a class).
3. I blog anonymously because I have opposing counsel in hard-fought cases, as well as judges and their clerks. If I wrote this blog under my own name, it would not surprise me at all to see some civil opponent dropping a footnote saying something like "It is not at all surprising that Ken would take such a stance, given his inflammatory and inappropriate language about . . . ." etc. I'd also worry about my clients being treated more harshly by the District Attorney's Office and the U.S. Attorney's Office (especially that office, given it's current leadership) based on criticisms of them. In short, I'd worry that expressing myself freely in this forum could harm my clients — even though in a just world it shouldn't. (For what it is worth, I have not, and never would, call out a litigation opponent by name here, and use my anonymity as a weapon in a case I am litigating.)
4. I blog anonymously because I would prefer that I — and my office, and my family — be free of threats and harassment. We make fun of people here. Most of these people will never notice us. But some might. And some of those people have large audiences prone to (depending on your perspective) (1) acting out on their own initiative, or (2) taking broad will-no-one-rid-me-of-this-turbulent-priest hints. I seriously doubt that Michele Malkin noticed when Patrick made fun of her hilarious freakout over a scarf. But bear in mind that when Malkin reprinted the contact information of some Santa Cruz anti-military-recruitment protesters, some of her audience deluged the protesters with abuse and death threats. For that matter, unhinged people on the other side of the spectrum directed death threats and abuse at Malkin when her contact information was published in retaliation. Some of the people we write about have nasty, batshit-crazy followers. I'd prefer not to have any devoted fans of Debbie Schussel calling and screaming obscenities at my secretary.
5. I blog anonymously so that I can write freely about chosen subjects while minimizing the very small, but actual, risk of physical violence. I wrote a post about a white supremacist turned judicial candidate who lives in the next town over, in the neighborhood where I grew up. I thought it was a worthwhile and important thing to write about. But given the choice between not writing about it at all, or writing about it under my real name and exposing my (non-white) kids to even a small chance of retaliation, I probably would have chosen not to write it at all. One of our posts about race here drew a visit from a white supremacist who has been indicted for threats against a juror. The danger of physical violence is small, but it exists.
6. Anonymous blogging provides an additional level of protection against SLAPP suits and other legal harassment. I have not made any knowingly false statements of fact about anyone here. I believe I have not made any recklessly false statements of fact about public figures or negligently false statements of fact about private ones. However, as a litigator and a consumer of news about SLAPP suits, I know that people who write harsh things about thin-skinned and self-righteous people get hit with frivolous law suits all the time. It's entirely possible that someone like Matt Ivester (whose name, Googled, returns a #1 hit for this blog) will file a frivolous lawsuit against me. Anonymity makes that marginally harder.
II. Why Anonymous Blogging Is Acceptable
I wouldn't blog anonymously if I thought it were indefensible.
I won't go into the long history of anonymous advocacy in this country; I don't deserve a comparison to the people who figure prominently in that history. But anonymous commentary is nothing new.
Here's why I think that anonymous blogging — at least the way we do it here, and the way most bloggers do it — is cool. A lot of it has to do with how different actual anonymous blogging is from the caricature of anonymous blogging put forth by critics.
1. Blogging is link-and-fact based. When I disagree with somebody — or bash them or ridicule them — my work has to stand on its own merits, with such supporting evidence as I link to. I'm not blogging by saying "Richard Warman, infamous censor of Canada, is a bad person because I saw him performing an unnatural act upon an unwilling opossum in the Arby's drive-through." I'm not claiming knowledge as a secret witnesses or anonymous tipster. I'm commenting on information equally available to everyone else. Critics of anonymous blogging try to compare it to a whispering campaign or anonymous sources or unsigned notes accusing a victim of misconduct, but blogging is not like that. A person comes here, they read my post, and they either find the arguments I make supported by logic and reason and the evidence I link to, or they don't. My identity doesn't enter into it.
2. Critics complain that anonymous people can bash with impunity. But while that might be true of people who act by email or comments on other blogs, it isn't really true of bloggers. "Ken at Popehat" can get a reputation on the internet for being unfair, untrustworthy, or prejudiced just as quickly as Ken RealName can. On a net driven by links and Google, if I behave in a way that people find reprehensible, they can spread their views of me just as easily as I can spread my views of my subjects. Bloggers obviously want people to read their work, and are concerned with the reputation of their work. Everyone who has read political blogs knows that some writers become notorious based on instances of misconduct (plagiarism, sock puppetry, unhinged abuse, stupid arguments, etc.).
3. We provide as close to an open forum as we can consistent with excluding pure trolls and marketers. I've never deleted a response from a non-crazy non-troll who wanted to address the substance of a post. I link to posts disagreeing with and critiquing mine. If someone emailed me a defense of conduct I had blogged about, I would print it here.
4. Finally, to me there is an element of adolescent schoolyard puffery to the you-must-blog-under-your-own-name school of thought. The underlying ethos seems to be one of cinematic masculinity — "say that to my face if you are going to say it," and so on. Why should I respect such an ethos? This is not a schoolyard. And this is not court. No one has a right to confront the person ridiculing him on the internet. We're supposed to be a society that settles things through laws and words, not fists. If I've written something about someone that is illogical or unfair or rude or cruel, the internet offers infinite opportunities for that person and his supporters to rebut me in kind. The sentiment that I must criticize, if at all, under my own name seems to be an argument for empowering people to make real-world threats. Moreover, it seems to be a plea for an opportunity to make ad hominem arguments — in fact, just the sort of ad hominem arguments about law professors that Whelan resorted to as part of his outing.
But as I said, the day someone outs me, I'll take my lumps and accept the social consequences of what I've written here.
III. Why I Think Whelan's Action Is Worthy of Contempt
Let me be clear: Ed Welan had every legal right to do what he did. Publius has no right to be free from private individuals using their investigation skills to suss out his ability.
But there are plenty of things one may do legally that make one an ass, and worthy of scorn.
Ed Whelan's reasons for outing Publius strike me as petty and self-involved. Whelan got exercised over some law wonkery; he didn't like Publius making fun of him for what Publius saw as Whelan's fumbling of an argument about Supreme Court nominee and Judge Sotomayor. Whelan feels that Publius' attacks on his advocacy and writing and logic were unfair. He may well be right. But the way he framed it is revealing:
Exposing an Irresponsible Anonymous Blogger [Ed Whelan]
One bane of the Internet is the anonymous blogger who abuses his anonymity to engage in irresponsible attacks. One such blogger who has been biting at my ankles in recent months is the fellow who calls himself “publius” at the Obsidian Wings blog.
Look, Ed, you're not talking someone through an emergency tracheotomy over the phone here. You're blogging. You're offering your personal views on political issues. You're one of ten thousand voices of varying volumes and varying quality doing so, in an environment that remains dominated by lolcats and spam about Paris Hilton's vagina. I can see calling Jenny McCarthy an irresponsible blogger if she blogged about how people should avoid vaccinating their kids. If my co-blogger Ezra joins some local revolutionary collective and starts posting bomb recipes with sloppy English-to-metric measurements, that would be irresponsible blogging. If Patrick starts telling people to eat jars of mayonnaise that have been left out in the sun because that's what the Tarheels do, that would be irresponsible blogging. But if someone talks shit about you because they think your political views are poorly thought out, disingenuous, or offensive, that is not "irresponsible blogging" unless you are monumentally self-involved and self-important. That's the internet. The body politic will suffer no perceptible wound because someone has dissed Ed Whelan anonymously.
Whelan disagrees. He poses, as if by outing a critic he has put a mad dog down in the street for the good of the community. This is insufferable hubris, frankly. It also strikes me as petty and small. Identifying Pubius by name does nothing to rebut Publius' arguments, to the extent he has any. It only serves to lash out in anger at the source of the arguments. It's the ultimate ad hominem response.
Based on the reception so far, I suspect that Ed Whelan will carry this incident as an asterisk by his name for the foreseeable future — at least in the environment in which he writes.
Others who have written about this, and whose writing I have found useful, even if I have not agreed with it, listed in the order they are in my cache: Scott Greenfield, Jesse Taylor, John Amato, Eugene Volokh, Jonathan Adler, Ron Coleman, Will at League of Ordinary Gentlemen, Walter Olson, Michael Krauss, Mark Thompson.
Last 5 posts by Ken White
- In Space, No One Can Hear You Threaten Lawsuits - October 4th, 2015
- Down With Peeple - October 1st, 2015
- Ninth Circuit Imposes (Some) Limits On Cops Yanking Things Out of Your Ass - September 30th, 2015
- Arthur Chu Would Like To Make Lawyers Richer and You Quieter and Poorer - September 29th, 2015
- In Roca Labs Case, FTC Takes Novel Stand Against Non-Disparagement Clauses - September 29th, 2015