Outing Anonymous Bloggers:

A reader asked whether I could comment on the latest anonymous blogger outing controversy (the Whelan/Publius matter). I might have something on the ethical questions later, but those are questions that I find difficult to answer at any high level of generality (though maybe I’ll have a breakthrough while I’m trying to compose the post). Long-time readers with unusually good memories might note that my response to the threats to out the then-anonymous Juan Non-Volokh was not particularly condemnatory of the person who threatened to out him. That too stemmed from my view that the ethical questions related to outing anonymous bloggers are not easy.

I do, however, want to suggest that two reactions to the matter are unwise.

1. Contrary to the view of Prof. Michael Krauss (Point of Law) that “[he] hope[s] the … tenure committee [at the law school where Publius teaches] is watching and taking note,” I hope the tenure committee completely ignores this.

As I wrote before, law school tenure candidates are generally supposed to be judged on (1) scholarship, (2) teaching, and (3) service to the university, profession, and community. One’s nonscholarly writings, such as columns in a local alternative newspaper, blog posts, and the like might be seen as a form of community service; but they are not a major factor, and if a candidate doesn’t want them to be considered, they generally aren’t (at least in the absence of unusual misconduct such as plagiarism).

And this makes perfect sense. Evaluating a law review article is evaluating what should generally be a thoughtful, thorough, carefully footnoted work that pays close attention to counterarguments. Even so, ideological prejudice will inevitably color the evaluation; even if we try hard to be objective, we’ll naturally think (all else being equal) that articles that come to views with which we agree are better reasoned than those that come to views which we have rejected. But at least we’ll see the many pages that carefully engage our preferred arguments, the close discussion of ambiguities in the sources, and the product of many months or years of thinking; and we may therefore often accept the article as meritorious even if we disagree with its bottom line — which is often only a small part of the article’s value.

Evaluating quickly written and necessarily highly incomplete op-eds or blog posts will necessarily prove to be a much more partisan process. Such pieces tell us relatively little about the author’s qualities as a scholar, and pose a relatively large risk of ideological bias in the evaluation. Of course some people on the Right are sometimes impressed by some blog posts coming from the Left, and vice versa; yet this will often not be so — and more often than with scholarly articles — for reasons that have to do with ideological disagreement rather than any objective failings on the poster’s part. Considering such nonscholarly writing is not irrational; one can argue that they do shed some light on the author’s qualities of mind. But since the important qualities for a scholar are the ones that he exhibits in his scholarship and teaching, and the tenure process already thoroughly evaluates those qualities, it makes little sense to also focus on material that has much less bearing on the subject, and poses more of a risk of unfair evaluation.
Prof. Krauss argues that it’s not “acceptable to try to trick tenure committees by hiding one’s true views until one gets tenure”; but I don’t think it’s improper “tricking” when one doesn’t publicize views that tenure committees shouldn’t consider in the first instance, just as it isn’t tricking a tenure committee when one doesn’t publicly reveal one’s sexual orientation or religious beliefs. And while Prof. Krauss argues that “One must think little of one’s law school colleagues if one believes he will be censured for the expression (and not the quality of expression) of political views” and that one should “Confront your colleagues, or your friends, or your family, and convince them that your voice is a legitimate one,” I think a professor whose careers is at stake might reasonably take a more cautious view: He might hope and even expect that his colleagues won’t hold public political commentary against them, but worry that consciously or subsconsciously a few (perhaps a few who aren’t going to be convinced of the “legitima[cy]” of other political views) will blackball him because of his political comments, and want to prevent that from happening.

Perhaps it’s better and braver to be out of the closet from the outset about one’s views. But a tenure committee shouldn’t hold the contrary actions against a candidate who tried to remain anonymous but failed. It should evaluate the candidate on his scholarship, his teaching, and perhaps in some measure his institutional and professional service, not based on public off-the-cuff political commentary.

2. On the other hand, the suggestion that the outed blogger should sue — made by a couple of commenters on Publius’s blog — strikes me as even more out of line. Identifying an anonymous author is speech, and presumptively protected by the First Amendment. One might think that it’s unkind speech or unethical speech, but that surely doesn’t strip it of constitutional protection.

Nor do any of the First Amendment exceptions apply. Accurately identifying the author of a blog isn’t a false statement of fact. Even if the disclosure-of-private-facts tort is constitutionally permissible — and I think it shouldn’t be, though most lower courts disagree with me — it seems to me that it can only be permissible with regard to a very narrow range of information that is both extremely private and of no conceivable relevance to public debate (perhaps the medical problems of a private individual, or pictures of someone in the nude). The identity of a public affairs commentator who apparently has several thousand readers each day strikes me as something that might well be relevant to public debate. Certainly it would be a very dangerous precedent if the coercive power of the legal system could be used to suppress such speech.

Likewise, I think the intentional infliction of emotional distress shouldn’t be applicable to otherwise protected speech (i.e., speech that is outside the existing narrow exceptions, such as false statements of fact, threats, and the like). But whatever narrow scope that tort might permissibly have, surely identifying a political commentator can’t plausibly qualify as constitutionally punishable speech. Perhaps there should be some exception for extremely rare circumstances, such as if the exposure creates a high risk of violence against the commentator — though I think even that shouldn’t qualify — or if the commentator’s identity was learned through illegal means). But surely no such circumstances should be present here.

As I mentioned, I think that anonymity, and outing of the anonymous, pose interesting questions of blogging ethics. But the focus should be on that, not on calls for legal restriction on speech, or for denial of tenure to scholars who should be evaluated based on their scholarship and teaching (and in some measure service) rather than on their public political commentary.