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Another Blogging Pseudonym Bites the Dust:

Over the past two months, Ed Whelan (with whom I blog on NRO's "Bench Memos") and a pseudonymous blogger at Obsidian Wings known as "publius," have traded barbs and insults while debating various issues related to President Obama's nominations of Harold Koh and Sonia Sotomayor. As a rhetorical matter, neither side proceeded with kid gloves. As a substantive matter, I believe Whelan got the better of publius more often than not, particularly with regard to Koh's legal views. This weekend, however, I think Whelan crossed the line.

Over time, the heat-to-light ratio in the Whelan-publius exchanges increased, and Whelan learned publius' real identity -- a recently minted, untenured law professor. As part of a recent response to publius, Whelan decided to disclose this information in a blog post. This was wrong. While Whelan defends his course, I think it was an intemperate and unjustified response Granted publius attacked Whelan in harsh terms, often allowing the force of his rhetoric to outstrip the substance of his argument, but Whelan gave as good as he got, and exposing publius served no meaningful purpose.

In my view -- and I'm hardly a disinterested party given my own history -- pseudonymous blogging can enrich the academic and policy blogosphere. While it enables some to hurl reckless charges and gross epithets, it also facilitates the engagement of more individuals in on-line discussion and debate. There are many understandable reasons why intelligent and knowledgeable people in various fields are reluctant to blog under their own name. Adopting a pseudonym is not necessarily a cowardly or sinister act.

Of course one blogs under a pseudonym at their own risk. There is no guarantee pseudonymity can be maintained over time. When I blogged as Juan Non-Volokh I was well aware I could be exposed by those I debated or criticized. Indeed, I assumed it would happen long before I came clean on my own. The more I blogged in my own voice, focused on issues about which I know a fair bit about, and revealed details of my life, the more likely exposure became. In the end, my identity was probably something of an open secret among most of those who truly cared. So while I don't know how much the threat of exposure would have influenced my own blogging on this site, the more acceptable it is to expose the identities of pseudonymous bloggers, the more potentially valuable voices the blogosphere will lose. Whatever is to be gained by chastening the intemperate pseudonymous blogger is outweighed by what is likely to be lost.

I also think it is important to distinguish between anonymous and pseudonymous blogging. While complete anonymity may enable someone to evade any accountability for intemperate or unwise remarks, the creation and maintenance of a pseudonym can have a disciplining effect on blogger behavior, and thus should be encouraged as an alternative to purely anonymous blogging and posting. Reputation effects and the desire to maintain readership can impose significant discipline. A pseudonym operates like a brand name, and the value of the brand is, at least in part, a function of how the pseudonymous blogger acts over time. This disciplining effect is hardly perfect, however, particularly when it comes to maintaining civility. As I believe the tone and snarkiness of many pseudonymous bloggers and commenters attests, a pseudonym can reduce a blogger's vulnerability to personal attacks and can shield him or her from social sanctions for uncivil conduct. I believe this means that those who utilize pseudonyms should take greater responsibility for the tone and content of their own posts so their pseudonymous shield does not become a license for nastiness and snark (and I hope I was able to do this when I used a pseudonym). But I also believe that, barring exceptional circumstances (e.g. something far worse than wrong-headed criticism) other bloggers should respect the choice of others to rely upon pseudonyms.

Ed Whelan obviously feels differently, as his posts make clear. In time, I hope he reconsiders his course, and that others recognize that exposing identities is the wrong way to deal with pseudonymous bloggers with which one disagrees.

Note: I wrote this post on a plane. Upon landing I discovered this post by Walter Olson at Point of Law with which I am in general agreement (save what he says about me). My former professor, Michael Krauss, responds here. My only comment on Prof. Krauss's post is that there are many reasons an untenured professor may wish to blog under a pseudonym that do not involve "trick[ing tenure committees by hiding one's true views until one gets tenure." In my own case, my colleagues were well aware of my political views, and political considerations were only a small part of the reason I chose to adopt a pseudonym.

Glenn Reynolds rounds up some more posts on this kerfuffle here. How do you feel? Hot Air has a poll here.

UPDATE: Matt Franck adds his thoughts on Bench Memos here.

SECOND UPDATE: Ed Whelan has apologized to "publius" for his conduct.

Related Posts (on one page):

  1. Outing Anonymous Bloggers:
  2. Another Blogging Pseudonym Bites the Dust:
LongCat:
While I do agree that it's poor form to "out" a blogger, that risk is certainly one you run when you go from discussing ideas to personal attacks on others. Unfortunately, even civil discourse can still result in threats of outings simply for having an "improper" viewpoint (as evidenced by Juan Non-Volokh incurring the wrath of a certain Law and Philosophy professor who shall remain unnamed).

Beyond that, J.N.O.V. was a clever name. Calling oneself "Publius" is just arrogant.
6.7.2009 7:53pm
AF:
Ed Whelan is seemingly not a Mensch.
6.7.2009 7:59pm
swg:
Of course there can be good reasons to out someone, maybe to show a conflict of interests or a malicious motive, but it just seems to me like there wasn't one in this situation, which makes me think that Ed Whelan was being a bit malicious and hoping for the worst outcome for Publius.
6.7.2009 8:03pm
ArthurKirkland:
So publius is now Blevins, and Whelan is still Whelan.

Blevins has the better of that deal.
6.7.2009 8:05pm
Eli Rabett (www):
Whelan was defending his franchise. In the end he cost himself the respect he depends on if he ever wants to return to the real world.
6.7.2009 8:06pm
jps:
AF- funny, I was just about to post the same thing. Whenever I want to get riled up about ridiculous hyperbole by someone on the legal right, Ive always gone to Whelan. But I'm even surprised by this. It now should become clear to all though, that Ed WHelan is neither a gentleman nor a scholar.

And he certainly does not have any empathy (or rachmones).
6.7.2009 8:06pm
dbomp (mail):
(I post under this pseudonym [when I post at all] because I happen to share a name with someone who makes his living from posting. I derive my income in other ways, so I use this. I don't want to be responsible for, "no, not him, the other one.")

The most troubling aspect is that there aren't any consequences for breaches of ethics. In fact, the incentives run the other way. Maybe conservatives already knew all about him, but liberals (like me) knew little about Ed Whelan; now everyone knows him. Now he's on everyone's fingertips, mostly tut-tutting, but while Publius's career is now in disarray, Ed Whelan suffers nothing but recognition.
6.7.2009 8:10pm
DangerMouse:
Are you kidding? Whelan did this guy a huge favor! There's nothing more that the left loves than victimization at the hands of a conservative! John Blevins is guaranteed to get tenure now. The left will rally to him, saying that this is the equivalent of Valerie Plame.

Honestly, there are no losers in this situation at all. You have to understand how libs operate before you realize that Blevins is making out like a bandit here. Frankly, he should be thanking Whelan.
6.7.2009 8:10pm
M N Ralph:
What a dick move by the intellectually vapid Whelan. Par for the course from him, however.
6.7.2009 8:15pm
common sense (www):
It is a shame, the amount of people who dislike anonymous posting on the Internet. So much good work was done during the founding era by both anonymous and pseudonymous writing. Like many freedoms, there are costs, but I think it is clear that the benefits are the heavier side of the scale. Attacking such cover is poor form and shows a lack of appreciation of our history.
6.7.2009 8:16pm
dmv (www):

. . . while Publius's career is now in disarray, Ed Whelan suffers nothing but recognition.

Yeah, recognition as a dick, and not just by people who substantively disagree with him (and who could thus be accused of biased partisan hackery). Here, the douchebaggery is manifest.
6.7.2009 8:18pm
bluecollarguy:
Ed Whelan, who snipes under his own name, is the shifty conservative antagonist. Publius, who snipes under a pseudonym, is the heroic liberal protagonist.

I'm getting good at left logic.
6.7.2009 8:20pm
A.S.:
On the one hand, I comment pseudonymously and would not appreciate being "outed". So I understand and sympathize with the objections, as probably do many who similarly are anonymous or pseudonymous commenters. On the other hand, the left has a long history of unapologetically "outing" people on the right - see Mike Rogers' outing of gay Republicans, for example. I'll bet that many of the people who object to this outing are perfectly fine with outing gay Republicans. So, really, what goes around comes around.
6.7.2009 8:23pm
dmv (www):

I'm getting good at left logic.

Ironic that that came immediately after my previous post, wherein I noted that right and left alike aren't really comfortable with what Whelan did.

Moar vapid talking points, pleez.
6.7.2009 8:23pm
John Blevins (mail) (www):

This was a very thoughtful and fair post -- as is most of the writing over here.

But anyway, I want to just say amen to the distinction between anonymity and pseudonymity. Prof. Adler is exactly right -- i have invested a lot of time and effort in my "brand" and those reputational concerns act as a discipline. All that is exactly right.

My one quibble with the critique of snarkiness. I would admit that I'll probably be less snarky now -- and perhaps that's a good thing. But good snark is tough to pull off -- someone like John Cole has a literary gift for pithy snarky phrasings that are loaded to the brim with substantive intelligent argument. And I say that 100% sincerely. Snark is one of the great features of the rough-and-tumble blogosphere.

My point is that losing snark isn't necessarily a good thing. But that's a very minor quibble -- otherwise, i agree with substance of the post
6.7.2009 8:24pm
AFischer (mail):
I see it as a matter of being of gentleman (certainly out of fashion these days). No matter what your motive is for using a pseudonym you have made a choice and the polite thing to do is to respect that even if the persons identity betrays a conflict of interest or malicious motive. If that is the case then you should privately confront your adversary and let them know what you know. Is it "improper" to out an anonymous blogger... probably not in a general sense. Is it impolite... most definitely.
6.7.2009 8:25pm
C. William Chattin (mail) (www):
I feel a bit torn by this issue. On the one hand, I currently blog under a pseudonym at ObamaPundit.com, on the other hand, I fear bloggers place in themselves a virtue in anonymity that simply doesn't exist. No other even semi-serious model of journalism would accept the type of anonymity widely accepted in the blogosphere.

While blogging under a pseudonym may promote the free distribution and exchange of ideas by non professional journalists, it also provides a shield for the dissemination of cheap, ad hominem criticism.

As I said at the top, I blog under a pseudonym (I invite you all to visit ObamaPundit.com for analysis of our 44th President), but to date I've been careful not to use my anonymity as a launching pad for personal attacks. And, if I did provoke the ire of another, I can blame no one other than myself if I was "outed." My anonymity is for me to protect; not for others to countenance.
6.7.2009 8:25pm
Mike Keenan:
Mr Whelan sure looks awful petty. That is not the action of an individual who should be taken seriously.
6.7.2009 8:31pm
24AheadDotCom (mail) (www):
If you do this search ("lonewacko" is my previous handle), without clicking any of the links you should be able to see some of the problems with pseudonymous *commenting*. If the identities of one of those persons becomes known through one means or another, would that be OK?

P.S. If this site wants to help avoid problems like that, see how other sites do it. Some follow a comment with the first three numbers of the poster's IP, others construct a hash (e.g., after each date here: minx.cc/?post=288231).
6.7.2009 8:33pm
Randy R. (mail):
A,S. "On the other hand, the left has a long history of unapologetically "outing" people on the right - see Mike Rogers' outing of gay Republicans, for example. I'll bet that many of the people who object to this outing are perfectly fine with outing gay Republicans. So, really, what goes around comes around."

Not a good analogy. First, Mike Rogers outs any politician, and has outed Democrats as well as Republicans. Second, he does not out all politicians. Rather, he only outs gay politicians who vote against the interests of gays. His theory is that if you are gay and closeted, that's your business. But once you vote against gays with regards to basic rights, or when you make speeches the demonize gays, then you are a hypocrite and deserve to be outed.

Agree or disagree with his methods, but that's hardly any analogy with what Whelen did.
6.7.2009 8:33pm
Mark Bahner (www):
"How do you feel?"

On matters like this, I try to think, rather than feel. ;-)

I think Ed Whelan was wrong.

But "Publius" would have been wise, when he was writing things like:

"And don't feel sorry for Ed. He knows all this -- he's a smart guy with outstanding legal credentials. He just enjoys playing the role of know-nothing demagogue. Anonymous Liberal pretty much captured it:..."

Yada, yada, yada. (And the smug "Yep" at the end of the attack by "Anonymous Liberal" almost certainly didn't help "Publius"!)

...to remember the wise council of Benjamin Franklin and Harry Truman:

"Those who live in glass houses should not throw stones,"

and...

"If you can't take the heat, stay out of the kitchen."

Which leads to another wise observation:

"Two wrongs don't make a right."
6.7.2009 8:36pm
Nat Whilk (mail):
". . . the polite thing to do is to . . ."

Publius had not been polite to Whelan prior to the outing. Why then should Whelan have felt obligated to be polite to publius?
6.7.2009 8:38pm
dmv (www):
I have to admit, I'm surprised that people are even mentioning the tone of discourse, whether by anonymous folks or not.

This is Teh Internetz. The land of doing it for the lulz.

(Of course, by the same token, I guess one shouldn't be surprised by Whelan's move. Maybe he did it for the lulz.)
6.7.2009 8:39pm
Raoul (mail):
Getting "outed" is part of the business- but Whelan betrayed private correspondance- he called publius a coward and when publius objected- well Whelan did hid deed. Ed Whelan appears to be a shallow untrustworthy individual- caveat emptor on anyone dealing with this man. As to got got the better- opinions are mixed - but on arcane legal opinions there are always two sides to each argument- I really do not care on who is right on court interpretation of common law- really- is this worth a person's character?
6.7.2009 8:40pm
ArthurKirkland:
For the record . . . Arthur Kirkland has been relatively easy to find for 30 years.
6.7.2009 8:41pm
fatbird (mail):
Agree with Randy R.: Whelan's outing of Publius was nothing more than a cheap shot that was unrelated to the exchange that provoked it. As one of Whelan's supporters said on another blog, "I hope the tenure committee is watching". If Blevins loses tenure over this when he would expect to get it otherwise, does that vindicate Whelan somehow?

A crucial point about pseudonymity has been missed here and elsewhere: From the reader's perspective, I don't really care whether a blogger uses a pseudonym or his real name because in both cases, all I really have to go on to evaluate their credibility is their posting history. It's the constancy of identity through a blog that gives an identity weight, not the very superficial appearance of being able to connect a blogger to a person in the real world. How do I know Jonathan Adler is really Jonathan Adler? I don't because I don't care enough to verify it. What I care about is that, over time, I find his blogging to be worth reading. It doesn't matter if he's Jonathan Adler or Juan non-Volokh.
6.7.2009 8:42pm
EH (mail):
How ironic that Whelan let Jeffrey Rosen's now-classic article about Sotomayor pass without comment regarding anonymity and its relationship to the locus of meaning in debate.
6.7.2009 8:44pm
arbitraryaardvark (mail) (www):
The case for anonymity/pseudonymity is well-made in a couple of my favorite Supreme Court opinions, Talley v California and McIntyre v Ohio Elections Commission. Over at one of my blogs, ballots.blogspot.com, I'm following a story where a city councilman has been arrested for being involved in the distribution of anonymous political literature. Based on Talley + McIntyre, I'm pretty confident he's been falsely arrested.
6.7.2009 8:44pm
David Matthews (mail):
"I've been careful not to use my anonymity as a launching pad for personal attacks."

I think this is a key fact, if you're hiding behind a pseudonym.

Blevins' post that irritated Whelan contained absolutely nothing of substance. He was simply crowing about Eugene Volokh post that "decimated" Whelan.

"For you Whelan fans out there, it's definitely worth a read to see him so thoroughly embarrassed."

He then went on to quote another anonymous blogger, who claims that Whelan knowingly posts shoddy legal analysis, just to promote conservative causes:

"He pores over their record, finds some trivial fact that, when distorted and taken totally out of context, makes that person look like some sort of extremist. Whelan knows this is what he's doing. It's willful. He's essentially a legal hitman, someone who provides the "expert" opinion that the right wing echo chamber then uses as the basis of its attack campaign."

To which Blevins added the incredibly insightful: "Yep."

That was the sum total of the analysis Blevins brought into the debate.

If that's the sort of thing you're doing, you really ought to be willing to do that without hiding behind an on-line persona.

And it's probably not the sort of snarky vapidity that a law professor should be engaging in, which might be why he was hiding behind "publius."

Having said that, I don't agree that Whelan was right in "outing" Blevins.

When someone is behaving unethically, the solution isn't to undercut them by being even less ethical.
6.7.2009 8:45pm
zippypinhead:
There are many understandable reasons why intelligent and knowledgeable people in various fields are reluctant to blog under their own name. Adopting a pseudonym is not necessarily a cowardly or sinister act.
On a legal or policy-oriented blog, pseudonyms permit folks to comment who cannot do so under their own names because of their professional employment. For example, the vast majority of posts or comments by individuals employed in the public sector (or Biglaw, which in some ways is even squirrelier) would dry up because of the necessity for bureaucratic pre-approval of all public statements. And while other may disagree, losing input from the roughly 1/3 of the legal profession that happens to be public servants, or the whatevertheheck percentage employed by large private institutions, would be a shame.

Thought for the day: Sarcastro is probably a Federal Court of Appeals Judge...

And for the record, zippypinhead is my real name. Even have my own Wikipedia entry, if you don't believe me...
6.7.2009 8:48pm
EH (mail):
David: Good points. I think if Whelan had just come out and said, "wanna get personal? I'll get personal" and just left it up to the law of the jungle, that there would be less to say about it. As it stands, he's using tripe like:
Blevins desired to be unaccountable—irresponsible—for the views he set forth in the blogosphere. He wanted to present one face to his family, friends, and colleagues and another to the blogosphere.
Well that's a bit presumptuous, don't you think? The only conclusion I can derive from this is that the face publius presented to his family, friends, and colleagues did not include insults about Whelan. Or maybe Whelan has a problem with publius not mentioning his family or coworkers in a blog comment. Whatever, at the end of the day, for some reason Whelan decided he was going to be one of a quite small number of people in recent Internet history to decide that someone needs to be accountable for their views, upon which he took action. I hope I'm not being presumptuous in asserting that very few internet commenters are held to bear personally for what they post, I hope we can all agree to that.
6.7.2009 8:53pm
DangerMouse:
If Blevins loses tenure over this when he would expect to get it otherwise, does that vindicate Whelan somehow?

Oh, he isn't going to suffer professionally. Like I said, libs love victimization. This is just Valerie Plame all over again. Pretty soon, you'll see Blevins on the front cover of GQ or something, with the title: OUTED BY THE NASTY, VICIOUS RIGHT WING HATE MACHINE. Count on it.
6.7.2009 8:53pm
Mark Bahner (www):
"My point is that losing snark isn't necessarily a good thing."

If all snark were to disappear from the Internet tomorrow, the world would be a better place.
6.7.2009 8:57pm
Calderon:
I have to admit I don't see what's wrong with what Whelan did (and I'm somewhat confused with the what category of "wrong" we're talking about). Many times, people do not consider it morally wrong to publish information that others would wish to keep secret, for example:

1. Suppose one of the conspirators has previously been associated with the John Birch society, attempts to hide that association, and then a liberal blogger finds out and publishes it? Is that a wrong?

2. John Yoo (or someone similar) probably would have prefered to keep his residential address hidden. If someone publishes it, have they committed a wrong?

3. Suppose someone regularly blogs about economic issues, but is vague about their background or experience and in fact wishes to hide their prior experience. Another blogger digs into that blogger's identity, finds out that have no econ degrees or relevant business experience, and publishes that fact. Has this other blogger committed a wrong?

4. Suppose David Kopel is on the payroll of Smith &Wesson, a fact which he tries to hide. A blogger digs up that information and publishes it. Is that wrong?

My guess is that most people would not consider the disclosures above to be moral wrongs. So why would the disclosure of someone's identity (a prerequisite to disclosures like those above) be considered a wrong? To me, it's simply a morally neutral act. People may wish to hide all sorts of information about themselves; absent some exceptional circumstances (they're undercover cops infiltrating a gang, or spies in a foreign country), I don't see why others are bound to respect their wishes.

A separate point is that it seems once you put yourself out into the public and wanted the general public to read your works (as most non-passworded bloggers do), even if you had some "right" to keep information hidden, you've waived it. On what basis can a person criticize others, including for their associations, history, past acts, etc., while keeping all of his or her own facts secret?
6.7.2009 8:58pm
Vader:
My employer has told me bluntly and directly that I am expected to avoid blogging or commenting under my real name.

Which is a shame, because I think being anonymous brings out the worst in myself and others, at times.

Were someone to "out" me, I would have genuine cause for anger.
6.7.2009 8:58pm
MikeS (mail):

He then went on to quote another anonymous blogger, who claims that Whelan knowingly posts shoddy legal analysis, just to promote conservative causes.


That was wrong. How could said blogger know that Whelan does this knowingly?
6.7.2009 8:59pm
Mark Bahner (www):
"Publius had not been polite to Whelan prior to the outing. Why then should Whelan have felt obligated to be polite to publius?"

Sounds like a question for "Miss Manners." She's not here right now, but I think I know what she'd say. Something to the effect that one should be polite to everyone. (But she'd say it in a clever manner.)
6.7.2009 9:03pm
Cato The Elder (mail):
Leftists love to flame people beyond typical hands-length incivility and then act shocked, shocked when someone has the temerity to respond to them in kind.
6.7.2009 9:04pm
http://volokh.com/?exclude=davidb :

That was wrong. How could said blogger know that Whelan does this knowingly?

Yep.
6.7.2009 9:05pm
ShelbyC:
Vader:

My employer has told me bluntly and directly that I am expected to avoid blogging or commenting under my real name.


The Emperor doesn't wand the publicity, eh?

But this Whelan, guy, jeez. What a dick.
6.7.2009 9:15pm
Talkosaurus:
The internets are a wilderness of (often) sharp-elbowed politics, usually of a personal nature. The internets are not a vast salon of pristine intellectual conversation. However, when issues like this arise, we all pretend that the latter is reality.

Anonymous blogs would seem fine and dandy when there relatively self-contained 'personal information/opinion' blogs. Blogs on a person's profession, or political views that may comment on a scandal or even argue specifically with another blogger or two at times. When a blogger specifically, habitually enters left-right partisan battles with non-anonymous bloggers, that is a horse of another color.

'Publius' (the taking Greek/Roman/Revolutionary patriot pseudonyms often speaks to the out-sized ego's behind them)blogged in the *directly (person-to-person) argumentative partisan sphere*. The internet is a relatively 'flat' commodity; because in the 'real world' Ed Whelan has held more lofty public positions does not equate Publius arguments against him as similar to the a man at home shouting at a politician on TV. In the internet sphere Publius can be supported/linked to by the left as much as Ed Whelan is on the right. Ed Whelan, being non-anonymous, must always enter the partisan fray knowing that what he says will reflect directly on him. His mail-box and blog responses fill up with critics asking for his response to Publius's arguments. But for Publius, he enjoys a public argument at 'half-price'. For anonymous bloggers, it's akin to showing up to a public debate with one person directly at the podium and the opposing speaker hidden behind a curtain, identity never to be revealed but opinions given as much weight by the moderator. Arguments are much different when they are essentially argued behind another identity, one that the arguer must never answer for in the 'real world'. I doubt many people would enjoy debating in that type of set-up, I fail to see the difference on the internet.

'Publius' isn't any type of villain in this, but in honesty (and as he' alluded to in his own comments) arguing in the internets is a lot more fun when you've got a freer hand for snark and insults. When you step up front and center in highly visible back-and-forths of a personal tone, the opposing person is going to want you on the same personal accountability level as they are. There's no truly better reason for pseudonimity given here than being able to be more of flame-thrower then they would be under their own name' that's understandable but also a far cry from this imaginary 'cool, calm intellectual space' people are projecting onto the blogsphere.
6.7.2009 9:27pm
fatbird (mail):
1. Suppose one of the conspirators has previously been associated with the John Birch society, attempts to hide that association, and then a liberal blogger finds out and publishes it? Is that a wrong?
Is the conspirator arguing for or against the John Birch society's aims? If either one, then former membership is material to the debate, and it's not wrong to 'out' them.

On the other hand, if the debate is about breastfeeding, then outing the debater as former Bircher is simply an attempted ad hominem, and it's wrong.
2. John Yoo (or someone similar) probably would have prefered to keep his residential address hidden. If someone publishes it, have they committed a wrong?
Definitely. It adds nothing to the public debate about Yoo's actions, and it exposes him to potential harm.
3. Suppose someone regularly blogs about economic issues, but is vague about their background or experience and in fact wishes to hide their prior experience. Another blogger digs into that blogger's identity, finds out that have no econ degrees or relevant business experience, and publishes that fact. Has this other blogger committed a wrong?
If the econblogger is presenting himself as credentialed, and in fact isn't, then it's right to out him because you're exposing dishonesty in the econblogger's presentations. If the econblogger never claims credentials, then outing him is wrong because it's simply an attempt to distract and to avoid engaging the uncredentialed blogger's legitimate arguments.
4. Suppose David Kopel is on the payroll of Smith &Wesson, a fact which he tries to hide. A blogger digs up that information and publishes it. Is that wrong?
Probably not.

See the common thread here? 'Outing' someone when it's relevant to the debate is fine; 'outing' them when it's immaterial to the debate, in order to expose them to potential harm (as Whelan did) is wrong. Not sure why this is difficult to grasp.
6.7.2009 9:28pm
A.S.:
then you are a hypocrite and deserve to be outed.

Exactly as I expect from the left: when someone on the right gets outed, it's because they deserve it. When someone on the left gets outed, well, then it's because those right wingers are so nasty and horrible.

Hypocrisy isn't any more of a justification for outing someone than Blevin's nasty personal attacks.
6.7.2009 9:34pm
merevaudevillian:
While I'm not qualified to discuss the Whelan-Blevins battle, I have little sympathy for anonymous or pseudonymous bloggers. Blevins's justifications struck me as particularly weak. He's heard that pre-tenure blogging on politics can cause problems? Then why not restrain yourself? Or, is this simply an overblown concern?

The classroom should be as nonpolitical as possible? So you'd rather conceal your biases rather than admit them up front and be as neutral as you can going forward?

Blogging and academia are separate? But your hobby substantially overlaps with your profession? It's not like he's blogging about horticulture or auto mechanics.

Family members might find out that he has different political beliefs? And they might lose their jobs with Republicans? These strike me as the most outlandish of all. He's so intimately concerned about what his family thinks of him personally, but he conceals vast swaths of his personal beliefs?

I'm not entirely certain I would go as far as you, Prof. Alder, in defending pseudonymous blogging. But Prof. Blevins's seem like thin gruel and more of an excuse attempting to make Mr. Whelan appear in as negative a light as possible--after all, apparently if Prof. Blevins's family members hit the breadline or speak coldly at Thanksgiving, it was Mr. Whelan's fault. Or so the insinuation goes.
6.7.2009 9:35pm
Calderon:
Fatbird said:

'outing' them when it's immaterial to the debate, in order to expose them to potential harm (as Whelan did) is wrong. Not sure why this is difficult to grasp.

Really? I somehow doubt Blevins is exposed to potential harm from being outed by Whelan. If your position is "no potential harm, no wrong," then Whelan is in the clear.

As far as what's material to the debate, knowing someone's background, qualifications, prior views, etc. on the issues at hand is always relevant to the debate. To know those, you need to know who they are.
6.7.2009 9:37pm
byomtov (mail):
A few points. Whelan himself says:

But setting aside the extraordinary circumstances in which the reason to use a pseudonym would be compelling, I don't see why anyone else has any obligation to respect the blogger's self-serving decision.

Whelan had no way to know how compelling publius' reasons were. Without that information he surely has an obligation to respect the pseudonym.

Of course he has that obligation, as matter of respect for others' privacy and preferences, anyway.

Revealing publius' identity does absolutely nothing to advance Whelan's arguments. Nothing. If Whelan thinks publius mischaracterizes his points, or is mistaken in his analysis, he is free to respond appropriately. He need not even devote his precious NRO space to the task. He can comment, pseudonymously if he likes, on Obsidian Wings, and lay out where he thinks publius is wrong. An adult would do that, or else ignore publius altogether. Instead, Whelan chose to act like a jackass.

His behavior was childish, petty, and stupid.
6.7.2009 9:40pm
byomtov (mail):
Leftists love to flame people beyond typical hands-length incivility and then act shocked, shocked when someone has the temerity to respond to them in kind.

Whelan could have flamed as much as he liked. It's the violation of privacy that's wrong.
6.7.2009 9:42pm
fatbird (mail):
I somehow doubt Blevins is exposed to potential harm from being outed by Whelan.
Blevins thought (and articulated) that there could be negative consequences to himself and his family if his blogging were connected to them, enough to write pseudonymously. Maybe he's wrong, but I don't see a reason not to give him the benefit of the doubt.
If your position is "no potential harm, no wrong," then Whelan is in the clear.
My position is that outing is justified when what's hidden is material to the issue at hand, and in no other cases. How is knowing that Blevins is a pre-tenured law professor material to whether or not Whelan misrepresented a joke told by Sotomayor?
6.7.2009 9:44pm
zippypinhead:
4. Suppose David Kopel is on the payroll of Smith &Wesson, a fact which he tries to hide. A blogger digs up that information and publishes it. Is that wrong?

Probably not.
But it's also probably not relevant to the substantive issue, which is the same basic problem with outing John Yoo's home address. Dave Kopel is already paid by the NRA for his articles and op-eds in America's First Freedom. And he is compensated for representing various amicus parties in Heller, NRA v. Chicago, and other Second Amendment litigation. And for giving speeches at various firearms-friendly organizations. So whether Dave's also earning money from other parts of the industry with the same views and agenda isn't terribly material.

Where it would be more interesting is if Dave' also moonlighting as a secret mole for the Brady Campaign, sort of like an antimatter Mary McFate. Would that be relevant? Yes. Would it be harmful to his reputation and livelihood? Yes. Would it be appropriate for such duplicity to see the light of day? Absolutely, yes.

I wish I could articulate a nice, crisp, generally-applicable rule. But I'm just going to have to put down the appropriateness of such disclosures in the "I know it when I see it" category. Sorry, Justice Stewart...
6.7.2009 9:47pm
green-grizzly (mail):
"Everybody, sooner or later, sits down to a banquet of consequences."
-Robert Louis Stevenson
6.7.2009 9:48pm
Randy R. (mail):
AS: "Exactly as I expect from the left: when someone on the right gets outed, it's because they deserve it. When someone on the left gets outed, well, then it's because those right wingers are so nasty and horrible.

Hypocrisy isn't any more of a justification for outing someone than Blevin's nasty personal attacks."

Then what do you call it when Mike Rogers outs Democrats? OR when Democrat Eliot Spitzer is outed for his dalliances with prostitutes? Suppose a popular conservative is outed as a card-carrying member of the Communist Party? You would find that unacceptable?

And need I remind you that it was conservatives who regularly outed gays when it was politically expedient to do so, from the 1950s on. So I would think that conservatives should be the last people to pretend to be outraged by the process of outing. but that's what we can expect from someone on the right -- it was okay when we did it, but it's not okay when you do.
6.7.2009 9:49pm
DiversityHire:
I almost agree with your post, Professor, but Duncan Black is an awfully persuasive counter argument.
6.7.2009 9:51pm
ClareA (mail):
Is no one on the Internet familiar with the long-standing literary tradition of pen-names? People have reasons for wanting to keep their writing persona separate from their personal life.

"I am quite sure now that often, very often, in matters concerning religion and politics a man's reasoning powers are not above the monkey's."
- Mark Twain

Hah. That coward! Let everyone know that this sneak is named Samuel Clemens!
6.7.2009 9:51pm
PeteP (mail):
I don't know if I find it funny or sad to see a bunch of supposed 'brains', some of whom are actually entrusted with the education of our youth, acting like a bunch of f'ing little children online.
6.7.2009 9:55pm
Calderon:
Blevins thought (and articulated) that there could be negative consequences to himself and his family if his blogging were connected to them, enough to write pseudonymously. Maybe he's wrong, but I don't see a reason not to give him the benefit of the doubt.

These negative consequences were that if people knew his true views they would like him less (I suppose, it's hard to know what "family" considerations he was talking about), or be less likely to grant him tenure. So what? Why is there an obligation not to disclose what a person write just because he wanted to keep it private? Why shouldn't his family and university know the full range of his writings? Suppose a pre-tenure professor of mathematics at a northeastern university with a liberal family secretly wrote mailers for the KKK? Wrong to disclose who he is?

My position is that outing is justified when what's hidden is material to the issue at hand, and in no other cases. How is knowing that Blevins is a pre-tenured law professor material to whether or not Whelan misrepresented a joke told by Sotomayor?

What's material is in the eye of the beholder. I'd want to know what biases or prior affiliations then participants in any debate bring to the table. John Lott or the CEO of Philip Morris may make perfectly cogent and well-supported arguments, but I'm guessing people would have a different view toward those arguments if they were making them anonymous versus non-anonymously. Or suppose an anonymous defender of Sotomayor turned out to be one of her former clerks? Wouldn't you consider that material?

Beyond that, I still don't see why people -- and especially people who are intentionally putting their views into the public realm -- have some right to secrecy that people are morally bound to respect.
6.7.2009 9:57pm
bluecollarguy:

Actually it was your anonymous comment which spurred my little contribution.

"Yeah, recognition as a dick, and not just by people who substantively disagree with him (and who could thus be accused of biased partisan hackery). Here, the douchebaggery is manifest."




But it wasn't a comment on the great "outing" controversy of 2009, it was directed at your erudite anonymous contribution to the great outing debate.

Thanks for the chuckle!
6.7.2009 10:00pm
AJK:
Ignoring the ethics of Whelan's actions, if you really don't want your internet postings linked to your real name, you probably shouldn't be posting. Based on my survey of publius' work, I don't think he had anything so valuable to say that we couldn't have missed it.

I'm not particularly interested in having my postings here linked to me, but I can't say I'd be particularly upset if they were. These are my real initials, and I'm sure a sufficiently motivated party could make a decent guess at my identity. (Regrettably, I am not Andrew Jay Kleinfeld.) I'm sure that's true for pretty much everyone else with a decent body of posting. Assuming otherwise is probably going to make you unhappy.
6.7.2009 10:00pm
ShelbyC:

Why is there an obligation not to disclose what a person write just because he wanted to keep it private?

There isn't. Just like there's no obligation to not run down the street yelling racial slurs. But it says alot about you if you do it.
6.7.2009 10:02pm
David Matthews (mail):
Given the total lack of substantive content of Blevins' post, its ad hominem nature, and the personal and professional smears he was engaged in, the correct response from Whelan should have been along the lines of:

"The alleged law professor, publius, has attacked me at his blog here [insert link]. Stay classy, 'professor.' "

I think Blevins was being a childish jerk, and Whelan descended to, or perhaps below, his level.
6.7.2009 10:02pm
gray (mail):
Outing is unethical behavior. It is carried out by operatives on both sides of the political spectrum. If you feel that it is a specifically "right-wing" or " left-wing" activity you are beyond rational political discourse and are mired in a solely partisan perspective.
6.7.2009 10:02pm
ShelbyC:

Beyond that, I still don't see why people -- and especially people who are intentionally putting their views into the public realm -- have some right to secrecy that people are morally bound to respect.


Well, aren't you kind of generally morally bound to respect other people's wishes?

Whelan's actions are on about the same level of someone who, upon hearing how a co-worker is really looking forward to a Snickers bar on their 10:00 break, and noticing that there is only one left in the machine, buys the last one, takes it to the john, puts it in the urinal and pees on it, then tells his co-worker what he did. There's no "obligation" not to do it, it's just a dickish move.
6.7.2009 10:06pm
Desiderius:
Talkosaurus,

"the taking Greek/Roman/Revolutionary patriot pseudonyms often speaks to the out-sized ego's behind them"

Hey, I resemble that comment!

In my case, the pseudonym does contain a slight aspirational element, but it was primarily chosen to reflect common aims, concerns, and, on a much smaller scale, experiences.

Emulation does not connote presumption.
6.7.2009 10:08pm
Nat Whilk (mail):
". . . one should be polite to everyone . . ."

That's hardly the way the Internet works. I agree that it would be better if it were, but it isn't. And to condemn Whelan's action as a violation of politeness even as Whelan is the target of an avalanche of vulgar insults fit for the junior high locker room is a bit much.
6.7.2009 10:09pm
BooBerry (mail):
Ed Whelan is consistently petty, intemperate, and nasty. His posts at Bench Memos and his "This Day in Liberal Judicial Activism" are an embarrassment to legal scholars on both side of the divide who enjoy the give-and-take of respectful debate.
6.7.2009 10:10pm
Dave N (mail):
I agree Ed Whalen could have handled it better. David Matthews' suggestion would be just as effective--but of course we would not be having this discussion had Whalen done something different.

I agree that there might be compelling circumstances to "out" a pseudonymous blogger. But irritation at a person's commentary is not one of them.
6.7.2009 10:15pm
Guest of Irony:
I don't particularly care for what Wheland did, but let's face it: Blevins is a grade A d-bag. Read his posts and it's pretty obvious that the guy is just an a-hole. That isn't unique to the left or right -- some people are just @sses. So I don't take much pity when someone who engages in bad behavior gets a dose in kind. Spit in someone's face and you aren't going to get much pity when someone smacks you.

In fairness, though, I don't think Blevins did the internet equivalent of spitting here (though he has before). So maybe Whelan overreacted. But do I care? No, not really, because like I said, the guy acts like a jerk in his posts.

I don't particularly like the snarky (code for "rationalizing away being an a-hole") nature of the internet. But if you notice, guys like Eugene don't get the same types of responses because they're civil. I had the pleasure of meeting Eugene many years ago and we argued about the electoral college and he was both incredibily insightful and respectful. I wouldn't dare to call him a-hole. Then again, Eugene wouldn't attack someone who disagrees with them by insulting their motives, reading comprehension, general lack of intelligence, etc., all of which Blevins does no a regular basis. So given the nature of the way he behaves, I'll sleep just fine tonight knowing that he suffered this grave injustice.
6.7.2009 10:16pm
David Matthews (mail):
"legal scholars on both side of the divide who enjoy the give-and-take of respectful debate."

Did you read Blevins' post that sparked this kerfuffle? Pseudonymously accusing someone of deliberately lying to forward the cause of the Vast Right Wing Conspiracy (because, after all, he was part of the evil Booooosh administration) is hardly "the give-and-take of respectful debate."

Condemning Whelan's actions, while ignoring Blevins' petulant snarky personal vapid posturings, and pretending that they contain any substantive legal analysis, is taking the issue out of context.
6.7.2009 10:16pm
Mahan Atma (mail):
Putting aside the question of whether he was somehow entitled to out Blevins, Whelan has demonstrated his foolishness on a practical level. He has made himself look petty and childish, rather spoiling his considerable credentials...
6.7.2009 10:16pm
David Matthews (mail):
Dave N:

You said it better, and far more concisely than I did, or could (and I'm not just praising you because you favorably cited me.)
6.7.2009 10:18pm
Desiderius:
Fatbird,

"My position is that outing is justified when what's hidden is material to the issue at hand, and in no other cases. How is knowing that Blevins is a pre-tenured law professor material to whether or not Whelan misrepresented a joke told by Sotomayor?"

Good rule. I'd add the corollary that it's also not entirely on the up-and-up to take advantage of the anonymous/non-anonymous asymmetry to conduct personal attacks (especially baseless impugning of motives).

Caveat scandalor.
6.7.2009 10:18pm
Nat Whilk (mail):
"Well, aren't you kind of generally morally bound to respect other people's wishes?

Does "you" include you, ShelbyC, and does "other people" include Whelan? If so, when you get around to your 3rd post calling Whelan a reproductive organ, maybe you could explain why you think he wishes to be called such names.
6.7.2009 10:19pm
wyswyg:
Obsidian Wings has to be the most overrated political blog on the net. Who cares what those clowns say?
6.7.2009 10:20pm
wyswyg:

Ed Whelan is consistently petty, intemperate, and nasty. His posts at Bench Memos and his "This Day in Liberal Judicial Activism" are an embarrassment to legal scholars on both side of the divide who enjoy the give-and-take of respectful debate.



Get back to me when people on the left learn to enjoy the give-and-take of respectful debate. Last I checked, you were all sniggering to each other over "tea bagging" jokes and fantasizing about raping Michelle Malkin.

You people get far more respect than you deserve.
6.7.2009 10:25pm
Mahan Atma (mail):
"I suppose, it's hard to know what 'family' considerations he was talking about"


No, it isn't. Everybody has someone in their family with diametrically-opposed political views. Sometimes that person feels so strongly about their views that they are willing to harm or sever family ties on that basis.
6.7.2009 10:28pm
JohnO (mail):
I think Calderon pretty much has it right.

I post quite a bit under my own name on a specialty blog that allows anonymous posting. I agree with those who see a diffwerence generally between pseudonymous posting and anonymouns posting, but I'll also say that it's extremely frustrating when someone takes personal shots on the blog but does so under the cover of anonymity. Often those posts suggest some degree of expertise and/or experience that simply can't be rebutted when they remain anonymous.

I see and credit the reasons why someone might want to be psuedonymous, but I see no reason to conclude that this somehow makes it wrong for someone else to divulge their identity, particularly if it is someone who has been the recipient of personal attacks from said poster.

Disclaimer: I haven't followed the back and forth between the antagonists here, so I'm not opining on the extent to which it got personal.
6.7.2009 10:28pm
Mahan Atma (mail):
"Get back to me when people on the left learn to enjoy the give-and-take of respectful debate. Last I checked, you were all sniggering to each other over 'tea bagging' jokes and fantasizing about raping Michelle Malkin."


Last I checked, you on the right were all murdering abortion doctors.
6.7.2009 10:31pm
BooBerry (mail):
wyswyg: I have no idea to whom you're referring (I suspect you mean the nasty political bloggers who "were all sniggering to each other over 'tea bagging' jokes and fantasizing about raping Michelle Malkin"?); fortunately (perhaps unfortunately for you), there is a class of adults (also known as legal bloggers) who are able to remain civil and respectful in debating their political opponents (see, e.g., Jonathan Adler, Eugene Volokh, and almost every VC blogger).
6.7.2009 10:32pm
ChenZhen (mail) (www):
Calderon-


As far as what's material to the debate, knowing someone's background, qualifications, prior views, etc. on the issues at hand is always relevant to the debate. To know those, you need to know who they are.


I can't say I agree with that. Unqualified people can be right, and qualified people can be wrong. I don't see how an identity has relevance when it comes to the effectiveness of an argument.
6.7.2009 10:34pm
Mark Bahner (www):
". . . one should be polite to everyone . . ."


That's hardly the way the Internet works.


I think Miss Manners would respond to the effect of "Tell me about it!"

(Note that she would NOT use the West Wing favorite, "Ya think?")

And to condemn Whelan's action as a violation of politeness even as Whelan is the target of an avalanche of vulgar insults fit for the junior high locker room is a bit much.


You talkin' to me? You talkin' to me? Well, I'm the only one here...

Seriously, though...I'm already on record (8:36 pm) as stating that two wrongs don't make a right. And that those in glass houses shouldn't throw stones. And those who can't take the heat should stay out of the kitchen. So I'm pretty much running out of cliches indicating that I also think "Publius" was wrong. (Did I mention that I think the pseudonym he chose was a mistake, too?)
6.7.2009 10:38pm
David Matthews (mail):
"there is a class of adults (also known as legal bloggers) who are able to remain civil and respectful in debating their political opponents"

You are correct. But that class does not include, and never has included "publius."

BTW, the best response to someone who insists on using the asymmetry of their pseudonymity against you, is to return it in kind (as I mentioned above), with liberal use of "alleged" and quotes around their "supposed" credentials. Then they can either man up and come out, desist on the personal attacks, or just lose face.

A blogger who does not hide is always a cut above those who insist on sniping from the bushes, unless he lowers himself to their level. Whelan did that, and more.
6.7.2009 10:39pm
Ken Arromdee:
Second, he does not out all politicians. Rather, he only outs gay politicians who vote against the interests of gays.

The flaw in that reasoning is that unless someone outright says "I am voting against the interests of gays", whether they are doing so is a political disagreement, not a question of fact. And even if he did say it outright, real people have several competing interests and the idea that someone should prioritize his interests as gay over his interests as a businessman or anything else is also a political disagreement and not a question of fact.

So this boils down to "he only outs people whom he has a political disagreement with". That's not a meaningful justification.
6.7.2009 10:46pm
Kovarsky (mail):
in the interest of full disclosure, i should state that john blevins is my best friend and college roommate. his kids call me uncle ("uncle stinky," to be precise). i also empathize wtih him as i am also an untenured, junior law professor.

people seem to confuse the issue of when one should have pseudonymity pierced with the idea that there should be norms about who is vested with that decision. if your 'rule' is that whenever you consider someone to have written something sufficiently hostile or rude, then you have a 'right' to out them, then everyone would be outing everyone else. that 'rule' degenerates to the argument about who is 'right' about the underlying argument's merits. that's a pretty silly rule, because obviously there's never going to be agreement about that underlying argument, or whose hostility was over the line first.

that's why the norm about being able to control your own pseudonymity is in fact a norm - because it makes sense behind a veil of blogging ignorance. ex ante, without knowing which side of what argument you'll be on, each blogger wants to control the terms under which his/her identity is disclosed.

i always wanted john to come out, and his reasons for failing to do so have nothing to do with the things ed as suggested. i think, for example, ed insinuated john was scared that people would judge him adversely for 'bad arguments. how silly. john had very sincere personal reasons, some of which he has disclosed, for wanting to control his identity. but that was always supposed to be john's call. how monstrously self-absorbed for ed to suggest that he should adjudicate whether outing blevins was in the public interest.

i'm quite pleased that most, on both sides of the political spectrum, seem to see this for what it is. what a petty man.
6.7.2009 10:47pm
NotALawyer:
I'm convinced Blevins is milking this or is just stupid. The correct reaction to being "outed" by Whelan was to simply not respond: neither confirm nor deny Whelan's assertion that publius = Blevins. Nothing would have come of it. Anyone who really wanted to dig would have been able to find out the link, but no one not willing to dig would not have been able to do so. There would be very little google footprint.

So is Blevins isn't complaining about not being able to use a psuedonymn (or however the hell you spell that!) but complaining about not being able to post in such a way that a determined person couldn't find out who the poster was. Big deal. I'm writing anonymously, but assume with enough effort, someone could find out my "secret identity".
6.7.2009 10:49pm
BooBerry (mail):
Great post, Prof. Kovarsky. The one thing that has always struck me about Ed Whelan and his blogging on NRO is his pettiness. I remember other times when he has issued a retraction on Bench Memos for previously shouting nasty and juvenile names at liberal academia and other law professors. That he also called Blevins a coward and an idiot in his email sums up the issue perfectly.
6.7.2009 10:55pm
David Matthews (mail):
So, Kavarsky, since he's your best friend, do you think it was right of him to take advantage of the asymmetry of his pseudonymity (yeah, I think that's a cool sounding phrase I coined, so I'm going to use it a few more times) to attack Whelan's integrity and motivations, whilst totally abandoning even the pretense of legal analysis?

In other words, if you wish your nom-de-net to be respected, don't you have some ethical obligations, as well, for example, to avoid ad hominem and professional accusations in your blog postings?

As I've said, I think Whelan's response was disproportionate and wrong; but, face it, your buddy was hardly behaving as a professional.
6.7.2009 10:57pm
wyswyg:
Where was this concern on the left for individual privacy when Dem operatives were releasing confidential information about Joe Wurzelbacher? It seemed oddly lacking.

The current holier-than-thou attitude, however, is entirely and depressingly predicable.
6.7.2009 10:58pm
Guest of Irony:
Makes sense you're good friends with Blevin. Those who take the other side are "confused" about when pseudonymity should be "pierced" . . . okay, I can't even go on.

It's real simple. Don't be an a-hole. If you're an a-hole, other people are more likely to be a-holes toward you. Eugene is not a-hole. Blevins is, though maybe you don't perceive that because he isn't insulting your intelligence, motivation, general moral compass, etc. Whelan may very well be an a-hole, though I tend to think the person who smacks the person who spits in his face is less of an a-hole than the person who spit, but I digress.

Your friend needs to stop acting like an @ss and stop hiding behind being a desire for snarkiness. If he wants to continue being an @ss -- his right, by all means -- so be it. But it should hardly be a surprise then, when someone ignores "norms" whose boundaries are far from clear.
6.7.2009 10:59pm
David Matthews (mail):
Oops. Sorry for misspelling your nick, Kovarrsky.
6.7.2009 11:00pm
David Matthews (mail):
Jeez, I did it again. Need a new keyboard....
6.7.2009 11:02pm
Mahan Atma (mail):
"do you think it was right of him to take advantage of the asymmetry of his pseudonymity"


What asymmetry? Whelan could have chosen to blog with a pseudonym if he wanted to.
6.7.2009 11:03pm
Ken Arromdee:
Many times, people do not consider it morally wrong to publish information that others would wish to keep secret, for example:


I would suggest a somewhat different version of what other commentators are:

1) Information that is relevant to the argument is usually okay to expose.

2) Information whose exposure is likely to lead to others harming your opponent in ways that are unconnected with the argument (except as retaliation) is not okay to expose.

And if both of these factors are relevant, you need to weigh them. This is especially so when your main motivation for exposing them is 2) but you're using 1) as an excuse.

I might add an exception to 1) If the information isn't relevant, but is considered so horrible that many people on your side would avoid arguing with your opponent based on it, then it's okay to reveal. This would cover the John Birch society member. It would not cover the gay outing (revealing that a conservative is gay probably won't lead liberals to refuse to argue with him) or John Yoo's home address (few people would refuse to argue with him based on his home address).
6.7.2009 11:04pm
wyswyg:

how silly. john had very sincere personal reasons, some of which he has disclosed, for wanting to control his identity. but that was always supposed to be john's call. how monstrously self-absorbed for ed to suggest that he should adjudicate whether outing blevins was in the public interest



Have you ever heard of this thing called "capitalization"? It's this nifty concept in English which you really should check out.

Can I assume that you will be blasting those people on the left who are committed to making public the names of those who oppose various gay marriage measures? Seeing as how you're such a big defender of individual privacy and all ....
6.7.2009 11:05pm
zippypinhead:
In my case, the pseudonym does contain a slight aspirational element, but . . . emulation does not connote presumption.
Wow, I'm relieved to hear that, or I'd be in BIG trouble!

But seriously, Dave N's observation:
I agree that there might be compelling circumstances to "out" a pseudonymous blogger. But irritation at a person's commentary is not one of them.
pretty much says it all.

If I a bit more cynical (or Sarcastro's sock puppet), I might call for all the anonymous commenters here who are disparaging Blevins' decision to post under a pseudonym, to immediately follow their own admonitions and post their real
names and CVs so the world could judge the context and credibility of their comments. But that would be wrong. Funny, but wrong...
6.7.2009 11:12pm
David Matthews (mail):
"What asymmetry? Whelan could have chosen to blog with a pseudonym if he wanted to."

Well, duh. Whelan made that decision long ago, totally independent of potential conflicts with some "publius."

But when "publius" then decide to use Whelan's biography to attack him personally, rather than actually addressing his views, and yet still insists that no one has the right to attack him personally, but rather must respect his "privacy," that's an asymmetry.
6.7.2009 11:12pm
BooBerry (mail):
wyswyg: Please elaborate how Dem operatives leaking info about Joe Wurzelbacher and "people on the left who are committed to making public the names of those who oppose various gay marriage measures" (not even sure what this means, in and of itself) have any relevance to this debate. Otherwise, stop being annoying.
6.7.2009 11:13pm
wyswyg:

wyswyg: I have no idea to whom you're referring (I suspect you mean the nasty political bloggers who "were all sniggering to each other over 'tea bagging' jokes and fantasizing about raping Michelle Malkin"?); fortunately (perhaps unfortunately for you), there is a class of adults (also known as legal bloggers) who are able to remain civil and respectful in debating their political opponents (see, e.g., Jonathan Adler, Eugene Volokh, and almost every VC blogger).




I was referring to to people such as yourself, BooBerry, and your compard who called Whelan a "dick", and not to those worthies you mentioned.

The left is an open sewer. Kindly clean out your mouths, if not your minds, with a strong disinfectant. Then and only then summon up the audacity to presume to sit in judgement on anybody.
6.7.2009 11:15pm
Bruce:
Jeez, a long thread, and no one's done this yet:

*I* am Publius!
6.7.2009 11:17pm
wyswyg:

wyswyg: Please elaborate how Dem operatives leaking info about Joe Wurzelbacher and "people on the left who are committed to making public the names of those who oppose various gay marriage measures" (not even sure what this means, in and of itself) have any relevance to this debate.




Oh? Does it bother you to have your hypocrisy rubbed in your face?

If it is all the same to you (and even if it is not) I'll decide for myself what is relevant to this debate.
6.7.2009 11:18pm
Kovarsky (mail):
again, the only response to my post seems to be that "well, blevins was a jerk." of course i don't agree with that, but as most post suggests - that's besides the point.

the point is that you can't really have a rule that says you can disclose identity whenever someone is sufficiently hostile/mean/rude/childish nasty. the reason is not that such a rule is theoretically undesirable. the reason is that, in practice, there's no neutral arbiter for that rule. each party will always argue that it was in fact the other that was a dick. you would never ask a party to a conflict to decide who should be punished for it.

lee
6.7.2009 11:22pm
BooBerry (mail):
Ok, wyswyg, so if I understand you correctly, a blogger outing a pseudonymous blogger with whom he vehemently disagrees is like Dem operatives leaking confidential information about Joe Wurzelbacher and is like people on the left outing those who oppose various gay marriage measures because in all cases confidential information is disclosed? Is that about the sum of your argument?
6.7.2009 11:23pm
Drolz:
There's a difference between using a pseudonym because you don't want to be associated with your online point of view and using one because you don't want to be associated with your online conduct.
6.7.2009 11:27pm
Mahan Atma (mail):
"Whelan made that decision long ago, totally independent of potential conflicts with some 'publius.' "


The fact that someone like publius could criticize him pseudononymously was blatantly obvious at the time he made that decision.
6.7.2009 11:28pm
David Matthews (mail):
"well, blevins was a jerk."

No, Blevins made a personal attack, and impugned the motives and integrity of Whelan, then expected Whelan to "respect" his right to pseudonymity. That's more than just being a jerk.

I won't ask you to defend him (well, I guess I already did -- sorry), since he's perfectly capable of posting here himself -- he already did, once.

But he's hardly an innocent party in this, and Whelan's actions must be taken in context, if they are to be judged at all.
6.7.2009 11:28pm
Guest of Irony:
Kovarsky,

Your point isn't that complicated, notwithstanding the "piercing" prose behind it. But many just don't agree with it. There isn't a rule -- it's just a polite courtesy that most of us agree with extending. But for the impolite -- and your friend surely falls in that category, at least in his blog -- shouldn't really have an expectation that they'll receive such benefits. You seem surprised when bloggers exercise a sense of rough justice for what they see as bad behavior. Many, myself included, think that the justice here may be a bit disproportionate, but that's what happens when you're relying on norms and expectations rather than rules. And there aren't any rules. That's why even polite bloggers like Eugene have insults hurled at them. But most of us realize that those attacking Eugene are obviously deranged because he's established such a clear reputation of being fair-minded and professional. Sorry to say that the same does not hold true from Mr. Blevins.

Again, whether you like the "rule" or not, the reality (which I'm told many here profess to care about) is that if you act like an @ss, you'll be treated like one.
6.7.2009 11:29pm
Mahan Atma (mail):
BTW, the irony is that Whelan probably chose to blog under his real name at least partly because he had considerable credentials under his belt.

Now he's pissed all over them.
6.7.2009 11:29pm
David Matthews (mail):
"The fact that someone like publius could criticize him pseudononymously was blatantly obvious at the time he made that decision."

And the fact that Whelan could (and did) find out the "true identity" of a pseudnonymous blogger should also have been blatantly obvious to "publius," who insists that Whelan still abide by a code that "publius" is unwilling to abide by himself (that of refraining from personal or professional dispersions).

That's asymmetry.
6.7.2009 11:32pm
Guest of Irony:
Mahan,

Don't let the recency of events fool you. I suspect Whelan will be okay. Though an @ss, those credentials aren't going to be "p!ssed" away by outing the blog of a law professor at South Texas. He probaby isn't going to be getting any federal judgeships anytime soon, but neither will the guy (whose name escapes me right now -- Lazarus?) who disclosed confidences of Supreme Court deliberations, which is actually a custom that most people acknowledge and which has been followed for many decades. Yet he still manages to find employment and is, by all accounts, a very able lawyer despite having made some intemperate remarks himself as a columnist.
6.7.2009 11:35pm
Mahan Atma (mail):
"Blevins made a personal attack, and impugned the motives and integrity of Whelan..."


A person's motives may be relevant to the argument, in which case a criticism of them isn't really an ad hominem. It's called "impeachment".

And Blevins' point (actually, he was quoting "Anonymous Liberal") was that someone with Whelan's experience must surely know everything Volokh. For that matter, anybody who has clerked for a federal appellate judge knows that what Volokh said is 100% accurate.

So Blevins was surely correct that Whelan was being completely disingenuous in his criticism of Sotomayor's joke about policy-making.

That goes directly to the credibility of Whelan's argument, doesn't it?
6.7.2009 11:35pm
Randy R. (mail):
wyswg: "Can I assume that you will be blasting those people on the left who are committed to making public the names of those who oppose various gay marriage measures? "

Actually, it is our election laws that are committed to making public those who oppose various gay marriage measures. Whenever any person donates to a political cause, that information if public. IT is public whether a person is on the left, right or middle. The only way you have privacy is to not donate at all.

Ken: "It would not cover the gay outing (revealing that a conservative is gay probably won't lead liberals to refuse to argue with him).:

Probably not. But if you are running your campaign as a defender of family values, I think most voters would like to know if you are in fact cheating on your wife, especially if you are cheating with another man. If you don't want to make it an issue, then don't run a campaign based on such matters. It would be just as bad as a conservative who runs a campaign based on low taxes and minimal gov't interference and is found out to be a member of the Communist Party. It's relevant because he has made it relevant.

"The flaw in that reasoning is that unless someone outright says "I am voting against the interests of gays", whether they are doing so is a political disagreement, not a question of fact. And even if he did say it outright, real people have several competing interests and the idea that someone should prioritize his interests as gay over his interests as a businessman or anything else is also a political disagreement and not a question of fact."

Well, most of them DO say they are voting against gays! Larry Craig, for instance, has been very vocal in his opposition to the storied Homosexual Agenda. And they purport to uphold 'family values', which is a code for being anti-gay. And they in fact vote for things like DOMA, vote against gay marriage, or gay protections for employment and housing, and such. There aren't that many votes in any legislature that directly affect gays, and it's almost always pretty clear.

In the unlikely case it is a mere balancing of interests of gays vs. businesses (ignoring the fact that gays also own businesses), then all the more reason to be out and explain such nuances. But all the people whom MIke Rogers has outed have been pretty vocal in their opposition to gays in general, so your point, though seemingly valid, is actually moot.
6.7.2009 11:35pm
Mahan Atma (mail):
"must surely know everything Volokh."


--> "must surely know everything Volokh said."
6.7.2009 11:37pm
Sol:
This Whelan appears to be a very small man, indeed.
6.7.2009 11:39pm
Randy R. (mail):
wywsg: "Kindly clean out your mouths, if not your minds, with a strong disinfectant. Then and only then summon up the audacity to presume to sit in judgement on anybody.'

And lucky for us, you have such a clean mind and mouth that you will presume judgement upon everyone. Hurray!
6.7.2009 11:39pm
AndyinNc:
I, for one, am completely shocked that someone at NRO would behave like a complete jackass.
6.7.2009 11:40pm
Anderson (mail):
It's interesting how many of Whelan's defenders make the claim that "leftists" out people all the time, etc., and therefore what Whelan did was okay.

The category "leftists" serves in those defenders' minds to justify what was done to Publius, a particular person who, one would think, ought to be judged on his own merits and demerits.

I don't really see the difference from saying "oh, so and so's a Jew, those Jews do worse than that all the time."

If your best defense for something bad being done to someone is "he belongs to group X that I dislike," then maybe your defense is a bit wanting. What do you think?

... Namecalling is unnecessary with Whelan, as the English language contains perfectly good words, such as "petty." His small-mindedness is what should bother his supporters. People can agree or disagree on political issues, but pettiness is a character flaw that reaches quite deep.

For Whelan's own sake, I hope he feels some remorse and apologizes.
6.7.2009 11:42pm
David Matthews (mail):
"A person's motives may be relevant to the argument, in which case a criticism of them isn't really an ad hominem. It's called "impeachment". "

OK, call it "impeachment." Although nothing of the sort was established by "publius" or his "anonymous liberal" friend. I didn't argue about who was right on the merits, since Blevins himself wasn't arguing the merits (in fact, he wasn't arguing a thing. He was crowing about how Whelan had been shown up, and quoting his anonymous buddy about how we can know that Whelan's a a liar.)

It doesn't change my point. When you operate from a position where you can use (in this case personal) arguments against someone else, while insisting that they are not free to use the same line of reasoning against you ("Don't poke the mask off Superman's face" as Jim Croce put it) that's asymmetry.

You asked, "What asymmetry?"

I told you.

Now you apparently agree with me.
6.7.2009 11:44pm
wyswyg:

The category "leftists" serves in those defenders' minds to justify what was done to Publius, a particular person who, one would think, ought to be judged on his own merits and demerits.



Judged on his own merits, the man is an ass. A rude and obnoxious ass, who richly deserves any negative fall out which may ensue.




If your best defense for something bad being done to someone is "he belongs to group X that I dislike," then maybe your defense is a bit wanting. What do you think?



I think that you cannot read, as that is not what I said. I actually pointed out the sheer relish you people display for "outing" people you dislike, and noted the sheer stomach turning hypocrisy on display now. Why don't you respond to that instead of your handy strawman?
6.7.2009 11:49pm
some guy:
3. Suppose someone regularly blogs about economic issues, but is vague about their background or experience and in fact wishes to hide their prior experience. Another blogger digs into that blogger's identity, finds out that have no econ degrees or relevant business experience, and publishes that fact. Has this other blogger committed a wrong?

This would almost certainly help the blogger's career. "No econ degree or relevant business experience"? He could be Obama's new "car czar."

Oh wait, he already is.
6.7.2009 11:49pm
Mahan Atma (mail):
"OK, call it "impeachment." Although nothing of the sort was established by "publius" or his "anonymous liberal" friend."


Why not? You didn't actually address the argument.

It's simple:

The things Volokh said are all patently obvious to someone with Whelan's experience. Yet Whelan was pretending like he was unaware of these things. He was doing so because he knew the simple-minded criticism he wanted to pin on Sotomayor made good red meat for anyone who didn't know better.

Are you saying Whelan was unaware of Volokh's points? Or are you saying Volokh's points could somehow be reconciled with Whelan's statement (when even Whelan was forced to "amend" his statement in response)?

"When you operate from a position where you can use (in this case personal) arguments against someone else, while insisting that they are not free to use the same line of reasoning against you..."


No, the two aren't equivalent. There was no point in Whelan's attack apart from wanting to harm publius. What Whelan did had no relevance whatsoever to the merits of the argument.
6.7.2009 11:52pm
David Matthews (mail):
That would actually be "don't poke the mask of the old Lone Ranger."

It was Superman's Cape that you weren't to tug on.

My bad.
6.7.2009 11:52pm
wyswyg:

Actually, it is our election laws that are committed to making public those who oppose various gay marriage measures. Whenever any person donates to a political cause, that information if public. IT is public whether a person is on the left, right or middle. The only way you have privacy is to not donate at all.



Yes, we are all quite familiar with the fabulous dishonesty of the left. Further demonstrations are really not required at this time.
6.7.2009 11:52pm
Kovarsky (mail):
guest of irony,

i think everybody understands there are no enforceable rules about what certain bloggers are 'allowed' to do towards others. that's why i took the trouble to put the terms 'rule' and 'right' in quotation marks.

what you characterize as a 'polite courtesy [that is generally extended to members of a community]' i describe as a 'norm.' my only point was that ed violated a 'norm' that the community of bloggers seems to obsreve.

i suppose your 'if you're a mean meanie then people are going to be mean meanies back' theory is defensible, but the way you've phrased it is not responsive to my point above. when people start sentences by saying "the reality [of some situation] is," i check for my wallet.
6.7.2009 11:53pm
David Matthews (mail):
"He was doing so because he knew the simple-minded criticism he wanted to pin on Sotomayor made good red meat for anyone who didn't know better. "

Oh, and now you're doing it. You can read Whelan's mind, can't you?

"There was no point in Whelan's attack apart from wanting to harm publius. What Whelan did had no relevance whatsoever to the merits of the argument."

First, "publius" wasn't making any argument. He was crowing, snarking and sniping. Might want to actually address the tripe he posted, rather than changing the subject.

But I'll concede you the point, since I've repeatedly stated it myself above -- might want to actually read the comments, I know most of them are boring; but you still haven't addressed the actual, unavoidable reality of the asymmetry of pseudonymity, and the fact that someone sniping from the bushes (like "publius") perhaps has an ethical obligation to avoid making attacks that cannot possibly be addressed in kind.

Funny how people keep wanting to twist and change the direction of the argument, when they can't actually address it.
6.8.2009 12:01am
Chad (mail) (www):
As a blogger who has been called far worse than coward and idiot a few times by people I respect a lot more than the previously pseudonymous Blevins (is that an actual word) I think if I were in Whelan's shoes I would have ignored Blevins, but then I don't make my living either blogging or offering legal commentary. If I did I might just decide to unmask the person attacking me, if for no other reason than to give the reading public an opportunity to gauge the argument based on credentials.

I think in whole Blevins has the weaker argument. If he wanted to blog and remain unknown he should have refrained from the type of sparring he engaged in with Whelan or separated that portion of his blogging from his pseudonymous blogging.
6.8.2009 12:06am
Volokh Groupie:
Everyone who blogs or comments under a pseudonym is simply asking to be outed.
6.8.2009 12:08am
Mahan Atma (mail):
"Oh, and now you're doing it. You can read Whelan's mind, can't you?"


There's no mind-reading necessary. Whelan himself couldn't even explain his position in response to Volokh, as Volokh himself made obvious.

That's probably why Whelan got so exercised about the whole thing and reacted the way he did.

"First, "publius" wasn't making any argument. He was crowing, snarking and sniping. Might want to actually address the tripe he posted, rather than changing the subject."


But... that's exactly what I'm doing! Publius (actually, "Anonymouse Liberal") attacked Whelan's credibility, and he did so in a way that was completely relevant to the argument Whelan was making.

You don't understand the difference between valid impeachment and a simple ad hominem (or else you are pretending not to).

"but you still haven't addressed the actual, unavoidable reality of the asymmetry of pseudonymity"


My whole point is that there is not really an "asymmetry" when one side makes a conscious, voluntary decision to put themselves in that position. If Whelan doesn't want to have his credentials used against him, he's free to blog anonymously (and for all we know, he does).
6.8.2009 12:09am
Mahan Atma (mail):
"Everyone who blogs or comments under a pseudonym is simply asking to be outed."


This is like saying, "Anybody who leaves their door unlocked is simply asking to be robbed." Does that excuse the robber?
6.8.2009 12:10am
David Matthews (mail):
"actually, "Anonymouse Liberal" "

Yeah, that's what I pointed out from the beginning. This "publius" guy didn't actually do anything except crow, snark and snipe. His amazingly insightful additions to the debate can be pretty much summed up by:

"For you Whelan fans out there, it's definitely worth a read to see him so thoroughly embarrassed."

and

"Yep."

His contributions were entirely nothing but personal. Yet he expects others to respect his anonymity and not respond in kind.

That's asymmetry. The expectation that others will not stoop to your juvenile level. Or the expectation that you can resort to personal attacks, whilst expecting them to keep your personal information confidential.

I've tried. Now I'm done.

Keep twisting stuff; I hear it's good practice for lawyers. I'm just a math teacher.
6.8.2009 12:19am
Randy R. (mail):
wywsg: "Yes, we are all quite familiar with the fabulous dishonesty of the left. Further demonstrations are really not required at this time."

So transparency in campaign laws apply to all donors, both those who favor Prop 8 and those who are against it. And this is an example of dishonesty of the left?

Please, do explain, or else I will have to write you off as a real loony....


"I actually pointed out the sheer relish you people display for "outing" people you dislike, and noted the sheer stomach turning hypocrisy on display now. Why don't you respond to that instead of your handy strawman?"

I did, but you chose to ignore it.
6.8.2009 12:22am
Mahan Atma (mail):
"His amazingly insightful additions to the debate can be pretty much summed up by:

"For you Whelan fans out there, it's definitely worth a read to see him so thoroughly embarrassed."

and

"Yep."


First of all, he was incorporating someone else's argument by reference. Lawyers do it all the time.

Second, you obviously didn't quote very much of his post.
6.8.2009 12:24am
Eric Baker (mail):
I enjoy this blog, a lot. Not a lawyer, rarely post. This however is a subject that I do have a view on. And I'll deliver it with some snark.

First, two ideas:

1) A blog is public space.

2) If you don't want someone to know you said something in a public space, then don't say it in a public space.

Now on to some of the more bone headed things put forth:

On a legal or policy-oriented blog, pseudonyms permit folks to comment who cannot do so under their own names because of their professional employment.

If they're not supposed to publicly talk about something then those people are acting unethically. Putting a paper bag over your head doesn't mean you can talk about things you're not supposed to talk about. Duh.

"My employer has told me bluntly and directly that I am expected to avoid blogging or commenting under my real name."

Your employer is a dope. What you say (or even the act of saying it) is at odds with your employment, but lying about who you are makes saying it OK? Or if it's not a matter of being OK or not, he just doesn't want it done, then he thinks there's privacy on the web? Yeah… he's a dope.

'Outing' someone when it's relevant to the debate is fine; 'outing' them when it's immaterial to the debate, in order to expose them to potential harm… is wrong. Not sure why this is difficult to grasp.

The difficulty lies in the 100% subjective judgement involved. "I need to be anonymous because I'll get hurt otherwise." Most often, nah, ALWAYS when dealing with these kinds of blogs, it's BS. They need anonymity to 1) say things in public they're too gutless to actually say in public or 2) violate something -- be it an agreement, confidentiality, the truth, or just good manners. As such hey don't "need" anonymity. They want it, and are dumb enough to think the net offers it. Lulz indeed!

"_________ had no way to know how compelling _______'s reasons were. Without that information he surely has an obligation to respect the pseudonym."

Lol! Names taken out because… they don't matter. I go to a public space, arguably the most public space in history, draw attention to myself, then claim that I have compelling reasons to be anonymous? Dumbest. Thing. Ever. Written.

"Whelan could have flamed as much as he liked. It's the violation of privacy that's wrong."

There is no privacy on the internet! Good lord, my 19 year old has more common sense than lawyers. Who would'a thunk? Anyway, since there is no privacy here, it cannot be violated.

"Outing is unethical behavior."

Argggg…. No, no it's not. ShelbyC comes closest to reality -- it is at most anti-social behavior. But even Shelby misses the mark in apparently thinking that he/she knows what pro-social behavior is online. The idea that, to belabor the point, one is entitled to anonymity when speaking IN PUBLIC is bizarre at best. The net most closely resembles speaking in public. Historically, in my society, knowing who someone is when they speak in public is the norm, and it's anti-social to keep their identity hidden. Why that would reverse on the net is a mystery to me.

As for the alleged problems with signing public utterances (mostly from the other, linked, blogs), they fall into four areas:

Re friends: If your beliefs revealed in posts are so objectionable that you'll lose friends, perhaps you should find some new friends. Authenticity is the word you're looking for. Being in the closet is soooooo 60s.

Re family: Sigh… hard to be snarky when something can be so real. But if it's important your family not know what you think, don't shout it in public ffs!!!!

Re profession: If your views will lose you clients or otherwise screw you professionally, don't speak them where the clients will hear. Or align your work life with your views.

Re "need": If you're simply not supposed to be talking about something in public, but you're so special that you by golly just HAVE TO SAY IT, then you should grow up.

Jeez… and in the time I typed this, there's more posted. Lol, enough.

Privacy on the internet. Hahahahahahahahahahahahaha!
6.8.2009 12:30am
joe smith (mail):
I dont know how many of you are looking for jobs right now but PROMISE you the first thing an employer does when he sees your resume is hit the old google and search for you.

If he finds a blog, more than likely you are not going to get the job. Every blog has strong opinions. So your potential boss will read it, find 97 things he agrees with and then finds 3 things objectionable, maybe it's that you smoke, or have children that the wife has custody of it could be anything. This is basic psychology 101. People are more likely to not hire you because of something "bad" that they know about you than if you never blogged at all.

It is never ever a good idea to blog if you are looking for a job. Never. Just show up with a clean slate and only let them see your most positive aspects, and jobs are hard to come by.

I see that republicans want to purge the blog-o-sphere of anon comments so they can cleanse the internet. Well its not gonna happen, sorry. anon blogging is here to stay, that is as long as people google for your real name and find any thing at all about you they disagree with.
6.8.2009 12:33am
Chad (mail) (www):
So transparency in campaign laws apply to all donors, both those who favor Prop 8 and those who are against it. And this is an example of dishonesty of the left?

Here in Washington state socialist candidates are routinely able to avid reporting contributions because of fear of retribution. At the same time gay marriage activists are threatening to out individuals who contribute to the initiative to repeal the recently enacted civil union law. Those names are not being protected. Does that sound like an equal application of the law. Does it sound like an equal application of moral principles?
6.8.2009 12:34am
Mahan Atma (mail):
"Historically, in my society, knowing who someone is when they speak in public is the norm, and it's anti-social to keep their identity hidden."


Historically, you might look into the history of the pseudonym "publius".
6.8.2009 12:34am
Guest of Irony:
Kovarsky,

You should check your wallet. No offense, but you seem stuck on a point that is hardly worth noting (and I'm not saying that as a comparative statement, because you are right that the "if you're a bully, be prepared to be bullied" isn't exactly ground-breaking). This isn't a ground-breaking situation. And you'll never get agreement about how the "rules" should be enforced because the Brian Leiters, Ed Whelans, Blevins of the world will invoke or disregard the rule only when it's convenient to them.

Your point that you can't have a rule (non-disclosure) with an exception (bad behavior) decided by those who are biased toward the invocation of the exception (those offended by it). I tend to agree with this as a statement about why such a rule would be ineffective if it were a rule, but again, it isn't. I know you know this, but you seem to be suggesting that because it's a norm, it should be respected by those who follow the norm. But collective action problems being what they are, there is no hope that such a norm or custom will be followed with any degree of regularity because of the incentive to cheat/desire to rationalize.

That is why all the hand-wringing in the world won't get you past what I said earlier: it's real simple -- don't be an asshole.
6.8.2009 12:35am
Chad (mail) (www):
@Eric Baker

You hit the nail on the head. Good job.
6.8.2009 12:38am
Volokh Groupie:
@Mahan

i'm afraid you missed my poor attempt at irony
6.8.2009 12:41am
Chad (mail) (www):

I dont know how many of you are looking for jobs right now but PROMISE you the first thing an employer does when he sees your resume is hit the old google and search for you.

If he finds a blog, more than likely you are not going to get the job.



Hasn't been my experience but mileage varies. Of course my blog has a readership of two (me and my imaginary friend) so he may not want to wade thru 2000 google pages to find it.
6.8.2009 12:44am
David Matthews (mail):
Actually, I quoted the entire CONTENT of his post. Could you find something relevant that he added to the argument that I omitted (or even included)?

But back to your original point, and it seemed so elementary that I just passed over it:

Let's try a f'r instance:

Joe and Sam agree to fight tomorrow at noon.

Joe decides to bring a knife. Sam decides to bring a gun. By your line of reasoning,

A) because each made a conscious decision, there can be no asymmetry,

and

B) if Joe notices Sam's gun, it's unethical for him to get one himself.

Amazingly, I agree with you, mostly, about "B" (especially since, in this case, Joe didn't actually grab a gun, he sort of wussed out and called the cops) but the mathematician in me finds A totally ludicrous. (We do a thing called "game theory," where we recognize the reality of asymmetries; whether by choice or imposition is immaterial to the reality.)
6.8.2009 12:45am
jack lecou (mail):

Yeah, that's what I pointed out from the beginning. This "publius" guy didn't actually do anything except crow, snark and snipe. His amazingly insightful additions to the debate can be pretty much summed up by...


Number 1:

Set aside your tribalism for a moment and, just for the sake of argument, allow that Whelan might have been wrong in the post Volokh and publius were criticizing. (Or not even that, just posit that publius might have had good reason to think he was wrong - Volokh's post alone is enough for that.)

In that hypothetical world, don't you think publius was doing a service to his readers - which obviously don't overlap 100% with volokh, Whelan, or Anonymous Liberal - by alerting them to the argument? After all, incorporating other's posts by reference is often what blogging is all about, and it's how ideas and arguments are spread.

And this post wasn't just about Whelan. The "judges shouldn't do policy" canard is a favorite with many know-nothings on the right wing. Publius was attempting to publicize what he felt was a definitive rebuttal of both that trope and one of it's chief proponents. Read the post again. Pay attention to the part about "Volokh obliterates" and "definitive post". The parts about Whelan in particular are almost an aside.

Calling this 'crowing' and 'sniping' certainly doesn't win the argument for you. It's just begging the question, at best. Less charitably, it might be called a transparent attempt to avoid the actual argument by changing the framing.

Number 2:

I'll grant you 'snarky', but that's par for the course on the internet, no? If Whelan can't take the heat, he should get out of the kitchen.

You argue that somehow Whelan's response wasn't petulant and childish, because after all, this no-account publius character was rude first. Seriously?

For all I care, publius could have filled an entire post with "Ed Whelan is a poopy head". If Whelan was a mature human being, he would have ignored it. Or perhaps he could have had a little laugh, "didja hear this 'publius' guy thinks I'm a poopy head? I'm devastated." Etc.

But Whelan obviously isn't a mature human being, and that's pretty apparent regardless of what you think of publius' original post, or the merits of pseudonymous blogging.

Not only that, Whelan's absurd overreaction kinda makes you wonder about whether publius struck a nerve, doesn't it?
6.8.2009 12:57am
Desiderius:
wyswyg,

"you people"

Second person plural doesn't really work so well on the interwebs.
6.8.2009 12:57am
David Matthews (mail):
"Calling this 'crowing' and 'sniping' certainly doesn't win the argument for you."

OK, you characterize:

"For you Whelan fans out there, it's definitely worth a read to see him so thoroughly embarrassed."

I'd call that, and the sentence that preceded it, "crowing" and "sniping," but you're free to use your own descriptions.

"You argue that somehow Whelan's response wasn't petulant and childish"

Actually, Jack, I argued nothing about Whelan's response. If you'll bother to scroll up (or even down) from your quote, you'll see what I think about Whelan's response.
6.8.2009 1:02am
David Matthews (mail):
Oh, and Jack: my "tribalism?"

What the Eff do you mean by that?
6.8.2009 1:04am
Ricardo (mail):
Blevins' post that irritated Whelan contained absolutely nothing of substance. He was simply crowing about Eugene Volokh post that "decimated" Whelan.

If Volokh "decimated" Whelan's argument, then that would appear to leave little room for someone else to add comment. On the internets, I hear there is something called "linking" where, instead of paraphrasing or quoting someone else's argument, you insert a pointer so that someone can click on it and see the argument for themselves, perhaps adding a sentence or two for context or introduction. Whelan appears to concede his original statement was false.

So linking to an accurate critique of someone's fallacious argument counts as "irresponsible"?
6.8.2009 1:04am
jack lecou (mail):

A) because each made a conscious decision, there can be no asymmetry,


I can see where there's an asymmetry here, but for the life of me I can't see where you think it's publius with the gun and Whelan with the knife:

- Publius had an obviously paper-thin pseudonym, and various concerns that there might be some awkward family situations or that his employer(s) might treat him unfairly if his online persona was easily found.

- Whelan has a cushy think-tank job, with very little chance of professional censure as long as he toes the party line.

Who's the untouchable one here?
6.8.2009 1:07am
David Matthews (mail):
Ricardo:

First you quote me, then you include the word "irresponsible" in quotes.

I can't find where I ever used that word. On your computer, I hear there's something called "search" or "find."

Try it.

So, by your ethics, putting "quotes" around something someone never said counts as "responsible?"
6.8.2009 1:09am
jack lecou (mail):


Actually, Jack, I argued nothing about Whelan's response. If you'll bother to scroll up (or even down) from your quote, you'll see what I think about Whelan's response.


Ah. I missed that.

You'll forgive me though - when someone goes on and on about how a rape victim's skirt was very revealing, it's easy to forget that they stated earlier that rape is wrong.
6.8.2009 1:10am
MikeS (mail):

No, Blevins made a personal attack, and impugned the motives and integrity of Whelan, then expected Whelan

not to burn his house down.

I fixed that for you.
6.8.2009 1:11am
Kovarsky (mail):
another point merits mentioning, since the description that professor adler providse omits it. i don't think JA did this to color the discussion, as he ultimately takes blevins' side. it's quite pertinent to the discussion about who is more "childish."

ed wrote john at john's school email address asking him to confirm whether he was publius.

john politely responded that he did not disclose his name for a variety of personal reasons, and clearly expressed his desire to remain pseudonymous. it was a two sentence email, and perhaps the final line, which expressed that if he had wanted to disclose his meatspace identity then he would have done so, could be perceived as terse.

to which ed replied, and i want to do this verbatim so the "childishness" of it is not lost on people:

"Now who's the hitman, you coward and idiot."

i'm not sure you can fully evaluate how well or poorly the parties involved acted without knowing that exchange.
6.8.2009 1:11am
David Matthews (mail):
"I can see where there's an asymmetry here, but for the life of me I can't see where you think it's publius with the gun and Whelan with the knife:"

Hmm, someone is disparaged for having worked in the EEEEEEvil Boooooosh OLC -- with no comment whatsoever on the merits of his arguments (OK, a link to EVs mild critique, characterized as "decimated"), and someone else eschews a paper trail, and sniffs about his privacy being respected.

You decide.
6.8.2009 1:13am
jack lecou (mail):

"For you Whelan fans out there, it's definitely worth a read to see him so thoroughly embarrassed."

I'd call that, and the sentence that preceded it, "crowing" and "sniping," but you're free to use your own descriptions.



I think it would be important for Whelan's 'fans' to see the destruction of one of his arguments, no?

There's certainly an element of schadenfreude there, but what of it? The post is hardly content-free.
6.8.2009 1:14am
David Matthews (mail):
"You'll forgive me though - when someone goes on and on about how a rape victim's skirt was very revealing, it's easy to forget that they stated earlier that rape is wrong."

Well, Jack.

Speaking of revealing: yeah, poor "publius" was raped. Right.

Ever known a rape victim, Jack?

I hope you haven't, but if you have, you might want to take that stupidity back, huh?
6.8.2009 1:16am
Doc Rampage (mail) (www):
On the other topic of the post: I don't think my behavior is effected very much by whether I'm blogging under my real name or a pseudonym. In both cases, I try to be civil and avoid personal responses, and in both cases I often fail. The real problem is in the medium, which makes the people that you are talking to into a faceless audience. The normal social inhibitions that prevent you from calling someone a dickhead to his face are not present and you have to rely on your own self-conscious judgment. And that judgment varies widely based on mood and other factors. I have often written things that I regretted later, both under my own name and under pseudonym.
6.8.2009 1:16am
David Matthews (mail):
"The post is hardly content-free."

The post is entirely content free. Name a single substantive item Blevins brought to the issue in the post. Just one.
6.8.2009 1:19am
Dilan Esper (mail) (www):
I reshthink the reason whelan did this was not that he was pissed off that publius said something false about him, but that publius captured the essential truth, I.e., that like many conservative legal experts, whelan deliberately pretends to espouse the republican party's simplistic talking points about judging when he knows those talking points are inaccurate and falsely characterize the positions of the two sides.

That point cut close to the bone, and an enraged whelan responded in a monstrous manner.
6.8.2009 1:20am
jack lecou (mail):

"I can see where there's an asymmetry here, but for the life of me I can't see where you think it's publius with the gun and Whelan with the knife:"

Hmm, someone is disparaged for having worked in the EEEEEEvil Boooooosh OLC -- with no comment whatsoever on the merits of his arguments (OK, a link to EVs mild critique, characterized as "decimated"), and someone else eschews a paper trail, and sniffs about his privacy being respected.



What? How does that even relate?

We're talking about Whelan's contention that publius was acting "irresponsibly" from some kind of protected position. That's kind of obviously not the case - publius relied on everyone else's netiquette to maintain a tissue-thin pseudonym. Whelan is able to lash out at will from a powerful and protected professional position.

How could publius' internet criticisms, civil or not, possibly have harmed Whelan in any way?
6.8.2009 1:21am
Michael Alexander:
Acadamia is full of such a bunch of self-righteous self-obsessed people it does not amaze me that the outing of a commentator becomes a big deal. Who cares? The overblown reactions of people happy to be victims and who thought that they were cool enough that they needed to remain secret makes me think that at some point Mr. Blevins told somebody, "I'm kind of a big deal."

Also, now Blevin's has a gripe in common with Justice Scalia.
6.8.2009 1:22am
jack lecou (mail):

The post is entirely content free. Name a single substantive item Blevins brought to the issue in the post. Just one.


1. Bringing the post to the attention of Obsidian Wings readers (me, for one).

2. Pointing out to those readers in no uncertain terms that Whelan's "correction" is inadequate.

3. Pointing out (directly and by quoting Anonymous Liberal) that Whelan surely knows this, and thus 'impeaching' similarly disingenuous arguments from him.
6.8.2009 1:25am
David Matthews (mail):
"irresponsibly"

Where the heck does this word, or any of its derivatives, keep coming in, in quotes, referring to something I supposedly said?

Do a quick search of my quotes (press control-f and type in "David Matthews").
6.8.2009 1:26am
David Matthews (mail):
1. Maybe you ought to get around more.

2. He didn't point out jack (no offense). He claimed (questionably) that EV did.

3. Again, he made no new point, but merely referenced the point made by the oh-so-brave "anonymous liberal" which was very tenuous, at best, and based on little more than a visceral hatred for all things Boooosh, and no actual legal analysis.
6.8.2009 1:30am
jack lecou (mail):

I hope you haven't, but if you have, you might want to take that stupidity back, huh?


The analogy is apt.

The fact that this breach of netiquette is clearly not as heinous as the crime of rape is immaterial - the old "it's an insult to REAL victims" squirm won't work here.
6.8.2009 1:31am
David Matthews (mail):
"The analogy is apt."

No. It's not.

Your logic is flawed, your arguments are flawed, tiresome and repetitive, and your ignorant bile is unworthy of VC.

Goodnight, "jack."
6.8.2009 1:35am
Heh:
So silly.

You are "unknown" as long as you don't give someone a reason to know you. It's that simple. When you decide, for whatever reason, that you want to say something in public, you need to stop and ask yourself what will happen when someone finds out who you are and publishes that fact.

You can cry about "norms" or "unwritten rules" all day long; it doesn't matter. The bottom line is that everyone gets to "call it as they see it", and it's often the most unwelcome person who makes a discovery at the most inopportune time.

So as someone else said, don't be an ass if you've got even the smallest concern about what will happen to you if someone finds out that you're that ass :)
6.8.2009 1:36am
jack lecou (mail):

Where the heck does this word, or any of its derivatives, keep coming in, in quotes, referring to something I supposedly said?



Not you. Whelan.


1. Maybe you ought to get around more.


Sure. Maybe I ought to download the whole internet while I'm at it. Doesn't change the fact that publius showed me something new the other day, and I daresay a few others.




2. He didn't point out jack (no offense). He claimed (questionably) that EV did.


Not everyone clicks through. You asked what he provided, I'm telling you.


3. Again, he made no new point, but merely referenced the point made by the oh-so-brave "anonymous liberal" which was very tenuous, at best, and based on little more than a visceral hatred for all things Boooosh, and no actual legal analysis.


I quote: "And don't feel sorry for Ed. He knows all this -- he's a smart guy with outstanding legal credentials. He just enjoys playing the role of know-nothing demagogue."

Those are publius' words, not Anonymous Liberals. He quotes A.L. only to emphasize the point. (And the point seems pretty uncontestable, with no need for much 'analysis': Whelan certainly should know all this, so if one thinks Volokh's critique is apt, it follows that Whelan is engaging in some hackery.)
6.8.2009 1:40am
jack lecou (mail):
You can cry about "norms" or "unwritten rules" all day long; it doesn't matter. The bottom line is that everyone gets to "call it as they see it", and it's often the most unwelcome person who makes a discovery at the most inopportune time.

Again, the fact that I left my door unlocked doesn't mean the guy who robbed me wasn't a criminal.

All you're pointing out is that publius' secret identity was thin. But that's obvious. The question is whether Whelan was "right" to out him, or revealed himself as a thin-skinned playground bully by doing so.
6.8.2009 1:46am
jack lecou (mail):
No. It's not.


I'm floored by your logic, "math teacher".
6.8.2009 1:48am
Eric Baker (mail):
Historically, you might look into the history of the pseudonym "publius".


Why? Because I'd notice the similarities between revolutionaries of the 18th century and bloggers of the 21st? To which I say, with snark, "self important much?"

But ok, I can play. You've got the founding fathers (at least some of them). I'll put in the KKK.

Sorry, but I don't consider those the norm. A lot of public conversation has gone on in this society. People with hoods on while they're doing it are generally considered anti-social. Anonymous tracts have fallen out of favor as well, what with the fear having one's head displayed on Traitor's Gate gone, dueling outlawed and a stable government in place. So history lesson aside I'll stand by the contention that public speech in my society is, and has been historically, not anonymous speech. There is no assumption that one will be anonymous, in fact the opposite.

And… I'm bored with snark. I appreciate the lack of such here, usually, and actually feel icky for having contributed to it. Flame off! And back to lurking.
6.8.2009 1:51am
David Matthews (mail):
I'm floored by your logic, "math teacher".

Way wrong use of quotes. Look up to my earlier post to see their proper (or more effective) use.

Since I don't post anonymously, you can find out my credentials as a "quote" math teacher pretty easily.

And they ain't impressive. From what I read every day, community college math teachers are about the bottom of the barrel. So be it.

"jack lecou" on the other hand, demonstrates about the level of logic that I see in my elementary algebra (Math 0098) kids.

Good for you.

I'm not wasting logic on you, since you're not amenable to listening to it.

Partisan hacks are what you are.

But, please, come back around VC more.

There are some really smart people here (of all stripes). If "publius' " post did nothing more than to open your eyes to the fact that VC exists, beyond ObsidianWings, then it served a good purpose.

Might I suggest, however, that you do what I did, and lurk for a few months before posting (again)?

It's not personal, but you'll see how the tenor of the regular contributors is a cut above the stuff you'll find at ObWi or DailyKos or FreeRepublic....
6.8.2009 1:58am
jack lecou (mail):
I don't doubt that you're a math teacher.

But your unsupported assertions that your logic is better still ain't convincing me.
6.8.2009 2:10am
Ken Arromdee:
But if you are running your campaign as a defender of family values, I think most voters would like to know if you are in fact cheating on your wife, especially if you are cheating with another man.

1) The mere fact that someone is, by their own standards, morally flawed doesn't mean they're a hypocrite unless they claim to be perfect. After all, everyone is flawed.

2) Outing often uses plausible deniability, where the outer's main goal is to hurt the person, but he claims it's just to inform the public. If so, there's no way to prove those aren't his real intentions. Because of this possibility, we should be very skeptical about any outing that can cause enough harm that it might be one of these situations.
6.8.2009 2:16am
Cato The Elder (mail):
I hate to be uncouth, by why is it nowadays acceptable for men to act like bitches? publius got his jollies making snarky and outright flame-worthy attacks against conservatives; that's fine with me, I'm not a reflexive Republican. So if publius really senses that Whelan was out of order and unnecessarily escalated this "give-and-take" too far, he should say to himself and his readers, "Good strike, sir!" and then at the right moment, in a masterful stroke, expose one of Whelan's kids or perhaps Whelan himself engaging in some shameful debauchery. If you stay above the fray, like the true mensch Eugene Volokh, people will generally accord you the same respect no matter your political persuasions. If you don't, you deserve to get it as good and hard, probably even harder, than you dish it out.
6.8.2009 2:20am
Jmaie (mail):
I see that republicans want to purge the blog-o-sphere of anon comments so they can cleanse the internet.

A little off topic, but what the heck are you talking about?
6.8.2009 2:37am
jack lecou (mail):
I'm not wasting logic on you, since you're not amenable to listening to it.


To recap:

You're claiming that publius' post was content free, and consisted of nothing but personal and "ad hominem" attacks against Whelan. (Apparently in the service of engaging in a bit of the ol' blaming the victim - you even claim that to not consider publius' grievous insults to Whelan's honor would be "taking the issue out of context".)

But it's been pointed out to you that publius' post was far from content free, or nothing but unsupported personal attacks:

1) Using one's blog to link to one or more other posts is useful content in itself - if you disqualified all the blog posts out there that consist of a couple links and quotes, and maybe a sentence or two of commentary, you'd break the blogosphere.

2) Assuming publius did believe in good faith that Volokh's critique of Whelan was both accurate and something that should already have been obvious to any halfway qualified legal scholar, it's far from an unsupported personal attack to observe that Whelan must be being a bit disingenuous. It's kind of an inescapable conclusion. (Certainly seems to have stung Whelan...)

You've met this with nothing but empty claims that my logic is faulty, versions of "nuh uh", or other evasions. Color me unconvinced.
6.8.2009 2:39am
Jmaie (mail):
I have seen two comments referring to Whelan's conduct as "monstrous." This seems a bit hyperbolic, would anyone care care to explain why it is not?
6.8.2009 2:45am
Cato The Elder (mail):
Wow. Look at hilzoy's childish affectation of solidarity on Obsidian Wings - "PS: Ed Whelan, don't bother to out me, it's already been done." I mean, honestly, how middle school can you get, this the daughter of a former Harvard president posting this? I can't help but judiciously speculate that some liberals just love to be outraged and shocked, shocked - it definitely has to be some sort of community-building experience to build that empathetic quality they so admire. "Ohmigod, publius, I know just how my homosexual friends feel now, that was sooo real!"
6.8.2009 2:46am
Cato The Elder (mail):
Jack Lecou,

I color you pink, my personal symbol of righteousness.
6.8.2009 2:49am
Guest056 (mail):
Whelan accuses publius of "irresponsibility" but what specific responsibility did publis ignore? Does publius really have a general responsibility to submit himself to professional and personal judgment according to his nom de plume political writings, even if they include intemperate attacks on other named individuals?

On balance, he has no such responsibility. We shouldn't be necessarily held to account by our bosses or relatives — as Whelan suggests — for our political writings, or for the tone of our debate with others. No general ethical responsibility or obligation of that kind exists, pace Whelan's claim. If, on a town forum, you write anonymously that the head of the planning board is a fool and incompetent to boot, and you don't use your name and thereby implicate your employer in saying sok, you don't need to direct your employer to thoat commentary for review. If Whelan chooses not to disclose some irrelevant but legally and morally sound part of his life to his employers and to his relatives, is he "abusing" his right to maintain his privacy? Not necessarily. Publius's actions certainly fall within the category of true irrelevance to his employers.

However, I feel we do have an ethical obligation not to disclose the personal information of other bloggers, barring special circumstances. It could be put this way: absent compelling reasons and overriding personal safety public interest obligations, the witheld information of a political commentator is his own business. This withheld information can include names, if the blogger posts under an assumed name. Others have articulated the difference between anonymous sniping and publishing voluminous opinion under one constant name. But briefly, Whelan was free to impugn or attack publius however he liked. Yet to justify this outing, he would need to show that publius's writings contained more than an intemperate and substance-free critique. They needed to trigger some compelling personal or public need. None was evident.

In fact, Whelan merely notes the poor "quality and substance" of publius's writings as justifying his outing. It is difficult to evaluate that as some kind of real categorical standard by which to judge an ethically delicate contigency. It only makes sense in light of Whelan finding the whole subject "baffling." He simply doesn't understand the basis of discussion -- it never occured to him not to pursue this course.

Finally, Whelan called publius a "coward and an idiot" in personal correspondence. Refraining from insult was also something that did not occur to the man, in the moment. This suggests that the disclosure — an ethically sensitive decision — was done in a moment of anger and spite, and not with due consideration. He was heated at the time, and apparently outed publius as part of a retaliatory measure.

It is deeply irresponsible to out someone while angry. Whelan himself apologized for the insults, which, in my opinion, makes it worse for him. Once you admit that you were in a state of mind to hurl angry and needless insults worth later retraction, you're admitting that you weren't in a condition to give consideration to your own actions. What a terrible time to divulge another man's private information.

Unless Whelan makes amends, he ought to be seen as happy to resort to irresponsible tactics, in an angry fit and without due consideration, to embarass or professionally damage the other guy. And he leads a body on ethics.
6.8.2009 2:58am
Guest056 (mail):
Incidentally, Matt Franck is stunningly wrong in conflating blogging with journalism. I'm sure he would qualify this and accept exceptions to the comparison; I'm sure he would say that the "latest evolution of" implied a continuous mutation rather than a direct comparison. But if publius is trying to imitate Publius (it doesn't matter if he's e.e. cummings, his nom d plume name is his non de plume, respect it or get off the field) he's not imitating a journalist or working in something more like journalism than any other field. Pamphlets like those written by Tom Paine and Publius and David Walker are not journalism -- and sociopolitically inflected diaries like Pepys' were not journalism either. They focused sometimes on sheer argumentation or quotidian recollection rather than reportage, and they were not about safeguarding a publication as an institution, which is essential to even Op-Ed journalism. They were about the specific writers' views and experiences.

This is of course a complex topic, and certain blogs aim to be more traditionally journalistic. Others don't. But Franck's dismissive simplification undercut anything else in his post by dint of sheer awfulness. Even narrow political blogging is often more like a blended evolution of other forms of writing than it is a mere evolution of journalism. Perhaps if he wants to reflect on the nature of blogging protocol in the future, he should share anonymously so as not to suffer from a credibility problem.
6.8.2009 3:24am
Sarcastro (www):
Man, arguing on the internet means nothing if there aren't consequences!

Also, I think the guy I don't like is a jerk. End of argument. I would prefer not to talk about the question asked in the original post, with all it's not talking about the jerkiness of that jerkface.
6.8.2009 3:28am
Ricardo (mail):
First you quote me, then you include the word "irresponsible" in quotes.

That was in reference to Whelan. If that wasn't clear, now it is.
6.8.2009 4:19am
Serious Business:
 

 

The Internets: Serious Business.

 

 
6.8.2009 6:21am
libertarian soldier (mail):
I agree completely with the "if you don't want to held responsible for saying something...then don't say it" school.
6.8.2009 6:47am
TITCR:
Now Ed Whelan and Brian Leiter have something in common! Does Blevins post on Xoxohth too?
6.8.2009 7:25am
Randy R. (mail):
Ken: "1) The mere fact that someone is, by their own standards, morally flawed doesn't mean they're a hypocrite unless they claim to be perfect. After all, everyone is flawed.

2) Outing often uses plausible deniability, where the outer's main goal is to hurt the person, but he claims it's just to inform the public. If so, there's no way to prove those aren't his real intentions. Because of this possibility, we should be very skeptical about any outing that can cause enough harm that it might be one of these situations.
"

These are both very good points, and ones worth remembering. I believe, however, that Mike Rogers has very stringent criteria for outing gay politicians. He doesn't just out anyone. Again, you should read his blog for his criteria. For instance, Rogers mentions Larry Craig, who consistently voted to expel any serviceman or woman from the military for being gay. Since Craig served in the military, he would have been expelled under his own philosophy. Since he is basically exempting himself from the rules that he insists apply to everyone, the public should know about that. Just as if a liberal consistently votes against child pornography and turns out to be a consumer of child pornography. (In that case, I can hardly think that any conservative blog would argue that the liberal deserves privacy).

As for 2), yes, of course it ends up hurting the person. Exposing hypocracy usually does that! But not always. When Cong. Jim Kolbe (R-Az) was about to vote on a bill important to gays, word was that he was going to vote against gay interests. So Mike Rogers informed him that if he does, he will be outed. Kolbe changed his vote to be in favor of the bill, and outed himself. He was relected every year until he finally retired.

So no, actually, Kolbe was not hurt in the least. He's still a respected retired member, and actually spoke at the Rep convention after all this happened. As for Larry Criag, his outing didn't hit the mainstream until he was caught soliciting sex in an airport bathroom. THAT no doubt hurt him far more (committing an illegal act), than any outing would have done. In his case, it would have been doing him a favor to really out him before he got himself into so much trouble.
6.8.2009 9:24am
drunkdriver:
As some of your links suggest, there's a role for incognito blogging (in medicine, law, and lots of other fields), and I think an untenured prof is well advised, if blogging at all, to consider not doing it under their own name. Nothing you said as "Juan" ever crossed the line into abuse of anyone.

"publius" elevated his disagreements to a personal feud, and should've expected to get outed.
6.8.2009 9:28am
Ken Arromdee:
As for 2), yes, of course it ends up hurting the person. Exposing hypocracy usually does that!

I don't think you've been following what I posted. I don't mean hurting the person in the sense of "people will reject him because the truth behind his opinion is exposed", I mean "people will hurt him for other reasons". Republicans often get outed in the hope that the Republican will suffer personal harm from being known as gay, in the belief that their families and supporters are violently homophobic and will refuse to vote for him simply because they don't like gay people, shun him, fire him, force him to move etc. Outing a Republican in the hope that this will happen is wrong. It remains wrong even if the person who has done so has fanciful beliefs about how homophobic the Republican's supporters are and the Republican doesn't end up suffering at all.
6.8.2009 9:45am
Snaphappy Fishsuit Mokiligon:
Dave Matthews:

First, how exactly does one "poke" a mask? The chorus of You Dont Mess Around With Jim, reflects the accepted wisdom (in the song) that one should not "pull" the mask off the Lone Ranger. Your failure to get this one simple thing right--even after the embarrassing slip up in which you attributed a mask to Superman (How ridiculous! Superman does not wear a mask!)--seriously undermines all your other arguments. (On a more substantive note, it's unclear what point you were trying to make with this reference. The common wisdom of the song turns out to be wrong when Jim meets his end at the hands of Willie McCoy, aka "Slim." Thus the perceived inequality between any given individual and Superman/the wind/Lone Ranger/Jim turns out to be illusory.)

Second, I would reread your own comments to this post and see who is posting "ignorant bile [that is] is unworthy of VC." The accusations and ad hominem is disproportionately in the posts headed by your name. If this were a Kerr post, you would likely be banned.

Third, as a lowly math teacher at a community college, you obviously have nothing to lose from commenting under your own name. How dare you use the inequality of your untouchability as a sword against those who are in a much more precarious position? You should post pseudonymously if you intend to attack others who post pseudonymously.

Note I have used my full pseudonym for this post. I dare you to do the same.
6.8.2009 9:46am
Just Dropping By (mail):
To quote Bankey Edwards in Jay &Silent Bob Strike Back: "That's the Internet is for; slandering others anonymously!"
6.8.2009 9:54am
EricPWJohnson (mail):
As one of the non legally trained unwashed, I have several big issues with legal opinion debates being conducted anonymously.

1st. Isnt the intent of the judges opinions and writings sometimes - sometimes used by attorneys in court cases decades later? Or even for court appointments?

2nd. Where can a right to attack someone's opinions with a secret indentity supercede the right to confront an accuser?

3rd. Choice, was professor Blevins motives for concealing his identity credible? If he was at such great risk, then why did the Prof feel compelled to blog even to the point where the (I take this literally from Blevins) argument drifted onto subjects he had no legal background in at the time? Is this a rational behavior for a member of academia who is tasked with training attorneys that could go into public service?
6.8.2009 9:56am
Angus Johnston (www):
There is no privacy on the internet! Good lord, my 19 year old has more common sense than lawyers. Who would'a thunk? Anyway, since there is no privacy here, it cannot be violated.

Sure there's privacy on the internet.

People on Facebook and various photo-posting services share photos with their friends that they'd prefer not have seen by strangers, and by and large those friends respect that preference. People on LiveJournal "friends-lock" blogposts, and by and large their readers don't reproduce their posts without permission. Ditto folks with private Twitter feeds, etc. People write and send personal sensitive emails all the time.

There's lots of privacy on the internet.

There are lots of privacy violations on the internet too, of course, but there were lots privacy violations before the internet existed. It may be easier to violate someone's privacy in the digital age than it was before, but that doesn't make it any less wrong.
6.8.2009 10:02am
For teh LULZ!:
 

 

... various photo-posting services....


 

 
6.8.2009 10:12am
A Nonny Mouse:

It's interesting how many of Whelan's defenders make the claim that "leftists" out people all the time, etc., and therefore what Whelan did was okay.


Yes, it's interesting because it is a classic logical fallacy.

Also interesting is this part of Whelan's expose:


In other of his posts (including two which I discussed here and here), publius demonstrated such a dismal understanding of the legal matters he opined on—including, for example, not understanding what common law is—that it was apparent to me that he had never studied law.


In the same post, Whelan reveals that he is quite aware that Blevins has studied law. (Unless he didn't actually read Blevins' faculty bio, which he linked to.)

I must admit, having seen a few of Blevins' posts, I think they are kind of asinine-the kind of thing one used to see college freshmen posting in alt.politics on Usenet back in days of yore. I can understand how someone could get really horked off by it.

Whelan's work is of an equal caliber, though, and he could have defended himself through other means.

As it is, Blevins is Blevins, and even though he was very snarky about it, he has a point about the claims Whelan was making in the case in question.
6.8.2009 10:43am
Blue:
1) I don't see the correlation between outing a gay and exposing a pseudonym. In the case of gay outing, the desire is to tie a private act to a public face. In the case of psedonym outing, it is the exact opposite--to tie a public act to a private face.

2) I don't see how you can make a credible argument that what Whelan did was unethical. There was no specific agreement between Whelan and Blevins (nor the websites they posted on) that allowed Blevins to remain anonymous. There is no customary law or agreement on the Internets that compels everyone on the Internets to respect the choice of everyone else on the Internets in this matter.

3) It is irrelevent whether Blevins motives were credible or non-credible--he has no position of moral suasion over Blevins' conduct therefore the internal calculations he makes are immaterial to Whelan's choice. (That doesn't mean what Whelan did was wise, merely that it was not unethical.)
6.8.2009 10:48am
Joseph Slater (mail):
(1) If Volokh "decimated" Whelan's argument, then that would appear to leave little room for someone else to add comment.

Well, technically, I suppose there would be room in the remaining 90% of the argument.

More seriously, I agree with Doc Rampage that:

The real problem is in the medium, which makes the people that you are talking to into a faceless audience. The normal social inhibitions that prevent you from calling someone a dickhead to his face are not present and you have to rely on your own self-conscious judgment. And that judgment varies widely based on mood and other factors.

Although I am disappointed to learn (if I'm correctly inferring) that "Doc Rampage" is not, in fact, this poster's real name.
6.8.2009 10:51am
mooglar (mail):
All right. It's pretty simple. Whelan is the asshole because he took the conflict to a new level. That's the long and the short of it. It's like when a guy who gets frustrated with the discussion he's having with another guy in a bar decides to end the discussion by punching the other guy. Maybe the other guy insulted the first guy or maybe the guy who threw the punch was frustrated because he didn't have a good response. Whatever. The fact is that Whelan escalated the conflict. We all know it is wrong to punch a guy for insulting you. You can answer him back, yell, or return the insult. But you can't escalate the conflict into another arena where you're trying to hurt the other guy for what he said.

And that's what Whelan did. It's the malicious intent behind outing publius that makes Whelan's conduct disgraceful. Whelan had no legitimate reason, besides retribution, to out publius. The outing in no way furthered the debate nor clarified it. It served no purpose other than attempting to cause harm to publius.

And we don't judge someone's actions as just or not simply based on whether the person has an "obligation" not to do something. Acting like that's the standard is disingenuous. The question isn't, "Did Whelan have an obligation not to out publius?", the question is, "Was there any good reason for Whelan to do something that could potentially harm publius in ways that don't relate to the debate at hand?" That's the question at hand. And the excuse, "Well, publius was being a poopy-head" does not justify malicious attempts to hurt publius outside the bounds of the debate.

I mean, really, people! Didn't we all learn in school that "he was being a poopy-head" isn't an excuse to go and dump your juice on another kid? It isn't an excuse here, either.

Also, with regards to the contention that Whelan was somehow justified in exposing publius' identity simply because publius was anonymous and this somehow made things "asymmetrical," that's just crap. 'publius' had been posting under that name online for what, five years now? In what way, then, does that not, in itself, constitute an 'identity?' Do we know publius better now for him being outed? Does this identity somehow trump the online identity he has spent years establishing and make that identity meaningless? No. Whelan knew who he was debating: publius. publius had a track record, had a history, and had built up a reputation, and that is an identity. Does knowing publius' name is John change the whole landscape of the debate? No. I don't know anything about Whelan other than what I read about and from him, just like publius. In what way, exactly, has Whelan's position in the debate been improved by revealing publius' identity? If this so-called "asymmetry" is really such a disadvantage to Whelan, show me how, exactly, Whelan was disadvantaged, and further, show me how, exactly, he is in a better position now. What arguments can Whelan make now that he couldn't before? How is his logic better now than before, how is he more correct than before, how are his positions better than before?

This so-called "asymmetry" is bull. It has nothing to do with the debate at all. The same people who always tell us how life isn't fair and it's hard knocks are the same ones now, in essence, saying, "It isn't fair if Whelan can't criticize publius personally!" Yeah, right. Feeling something is "unfair" and hurts your feelings doesn't mean there's an actual disadvantage. That's the argument I hear from the right all the time when discussing discrimination or affirmative action or what have you, but amazingly, some of the same people who dismiss any discussion of fairness regularly are the ones who are now making an argument about fairness and feeling disadvantaged and dressing it up as something else. But that's all it is.
6.8.2009 11:22am
ShelbyC:

Does "you" include you, ShelbyC, and does "other people" include Whelan? If so, when you get around to your 3rd post calling Whelan a reproductive organ, maybe you could explain why you think he wishes to be called such names.


Of course you're right, but unfortunately the best English term I can think of to categorize Whelan's actions also refers to a reproductive organ. His actions really don't fit into any other type of analysis I mean, what he did is not immoral or unethical, just, well... dickish. Like the guy who buys the last candy bar and throws it away so that someone he doesn't like can't have it.

And if you can think of a better term, please let me know.
6.8.2009 11:27am
Blue:

The question isn't, "Did Whelan have an obligation not to out publius?", the question is, "Was there any good reason for Whelan to do something that could potentially harm publius in ways that don't relate to the debate at hand?"


First, I don't see where Whelan has any obligation to prevent harm to Publius. Second, Whelan apparently believed he had a good reason--that's why he published his identity. That belief was sufficient.

Was Whelan being "dickish"...yes, undoubtedly. But this is where Publius going and picking the nose of trouble is relevent...if Whelan just up and outed poor old Publius who was never concerned with Whelan in the first place that would be one thing. But Publius declared kanly on Whelan--he shouldn't be surprised at the results.
6.8.2009 11:32am
mooglar (mail):
To be a bit more explicit, I suppose you could make the argument that, if a kid in school calls you a "poopy-head," you don't have an obligation not to dig around in that kids' life until you discover his mother is a prostitute and then go around telling everyone, "Billy's mother is a whore!" in the hopes of ruining the other kid's whole life.

But you'd sure be an asshole if you did.
6.8.2009 11:34am
mooglar (mail):
Blue:


First, I don't see where Whelan has any obligation to prevent harm to Publius.


Certainly you see that there being no "obligation to prevent harm" is very different than "no obligation to attempt or cause harm." Whelan didn't passively allow publius to come to harm, he took action likely to cause it.

Second, Whelan apparently believed he had a good reason--that's why he published his identity. That belief was sufficient.


Good lord, that's your argument? "[His] belief was sufficient?" That would mean that we had no right or ability to judge anyone's actions ever, because, of course by taking those actions the actor "believ[es] he had a good reason." That's a ridiculous claim and a ridiculous standard. I think, in general, it is assumed when judging someone's actions that they thought the action was necessary. That's the starting point, not the end point, of the rest of us judging whether the action was actually necessary. I mean, jeesh! What can't I do under that theory? If I sleep with some other guy's wife, are we unable to make any judgment about it because I "thought it was necessary?" If I start a rumor that a coworker is stealing from the company, is it impossible to judge it as wrong because I "thought it was necessary?" I mean, come on!


Was Whelan being "dickish"...yes, undoubtedly. But this is where Publius going and picking the nose of trouble is relevent...if Whelan just up and outed poor old Publius who was never concerned with Whelan in the first place that would be one thing. But Publius declared kanly on Whelan--he shouldn't be surprised at the results.


First, much applause at the use of the word "kanly." :^)

Second, my point is not about whether publius should "be surprised" by what Whelan did or not. Perhaps he should, perhaps he shouldn't. But that doesn't in any way mitigate Whelan's actions. If I go into a biker bar and start insulting bikers, I probably shouldn't be surprised if I get beat up, but that still doesn't mean it was okay for the bikers to beat me up!

And, further, you seem to be saying here that if you have an online political debate with someone, and they escalate the conflict by taking malicious action intended to bring harm to you and your family wholly outside the forum of the actual debate, well, you shouldn't "be surprised," and it is therefore okay. I don't think so. Having a spirited debate with someone online doesn't mean I should have to worry that they will go and find out my credit score and social security number and post it online! Saying mean things to someone online and, as you put it, "picking the nose of trouble" (interesting phrase, there, BTW) doesn't give someone else the right to retaliate against me outside the debate itself.

Or, perhaps, you think that because you responded to my comment with disagreement, you have now given me license to find out whatever I can about you that you might not want published, and publish it? I doubt you think that...
6.8.2009 11:50am
MarkField (mail):

Although I am disappointed to learn (if I'm correctly inferring) that "Doc Rampage" is not, in fact, this poster's real name.


It would be cool, though, if his real name was Doc Savage.
6.8.2009 12:13pm
devil's advocate (mail):
going way back to 8:44 last [Sunday] night,

EH had a good point about the relevance of anonymity in Rosen's piece on Sotomayer. It was the first thing that came to my mind when considering the utility of anonymity in commenting as a general subject.

That isn't to put Blevins comments on par with Rosen's writing -- I think Rosen is a rose colored glasses guy myself. Insight and subtlety fail him too often for me to place a great deal of credibility in his overarching observations although that piece actually contained some reporting.

I think also that the arguments that Blevins imported substance by reference and was offering a pointer to this commentary do impeach allegations that he was not a substantive participant, at least in the link oriented blog world.

But, if he is still reading, I find snark of limited appeal or utility, but pithiness quite appealing. Sarcastro is often a winning read here, even though I find myself in the opposite ideological camp from his point. As one might guess, I envy commentors who can make a smart remark that is worth a thousand words. Making humor of the argument is comic relief, making humor of the argue-er doesn't add to the discussion.

As usual, Eugene's post linked by Publius was more subtle than alleged, and not particularly decimating of Whelan's argument. Other's have expressed this view earlier without explaining.

Eugene prefaces his concern that one shouldn't be absolute in the sense of barring policy considerations from the judicial arena by first endorsing criticisms aimed at judging perceived to elevate policy considerations at the expense of controlling legal principles.

I think reasonable people could disagree whether Sotomayer's joke captures the policy-before-law sentiment or law-before-policy approach. I can't see Whelan as offbase for using the joke as a jumping off point on this concern. Given Obama's talk about empathy and the 'wise Latina' remark, the sense that outcomes and public sentiment should displace the rule of law with a rapidly evolving social-justice common law seems a quite rational point of concern over this nomination. Take for instance the focus on fidelity to precedent that was evident in recent confirmations of Bush nominees.

Publius is simply over the top in alleging disingenuity on Whelan's part. It might be fair to say that Whelan pushes the point, but to act as if it is made up or carried on in deliberate ignorance of countervailing law is false.

I'm shocked, somebody lied on the internet about somebody lieing on the internet. Round up the usual suspects and lets get back to debating the 5 books that describe the last century.

So I agree the Whelan had a point, but he had no excuse for his behavior. It's not wrong, its just impolite. This too shall pass. I've made a few errors of my own in the social realm.

Maybe, if Blevins ever has a point, I'll grant that as well - I haven't read his other stuff, but he seems a couple slices of bread short of a sandwich here.

Brian
6.8.2009 12:17pm
bloodstar (mail) (www):
** Volokh Joins the Chat **
Volokh: pwnz Whelan.

** Publius Joins the Chat **
** Whelan Joins the Chat **
Publius: LULZ @ teh pwnage.

** Volokh has left the Chat **

Whelan: OMGWTFBBQ!
Whelan: I keelz yr pseudonym
Publius: Pleez no, not my babies!
Whelan: DIAF!

** Publius is now known as Blevins **
Blevins: D00d, you sux.

** Adler Joins the Chat **
Adler: Whelan! U were winning! Id10T!
Whelan: WTF?
Adler: Remember Ghostbusters? Never. Cross. The. Streams.
Whelan: Publius had to be keeled!
Blevins: And ur still an ass.

** Adler Sighs **
** Adler Left the Chat **
** Blevins Left the Chat **

Whelan: is there anyone left listening to me?
** Whelan Left the Chat **
6.8.2009 12:54pm
jukeboxgrad (mail):
jack:

Whelan's absurd overreaction kinda makes you wonder about whether publius struck a nerve, doesn't it?


I think this is a key point (Dilan said something similar). Whelan's reaction tends to create the impression that what was being said about him was accurate and self-evident, and that he knows this.

FWIW, in 1995 the Supreme Court said this: "Protections for anonymous speech are vital to democratic discourse." Via EFF. They mention several anonymity-related cases.

I also want to mention that people posting under their own name can maintain a substantial level of anonymity if they happen to have a common name. The phrase "david matthews" returns 340,000 results.

bloodstar, that was funny.
6.8.2009 1:00pm
RIRedinPA (mail):
>>Publius had not been polite to Whelan prior to the outing. Why then should Whelan have felt obligated to be polite to publius?<<

Because he's a grown up?
6.8.2009 1:28pm
Eric Baker:

Angus Johnston (www):

[snip]

Sure there's privacy on the internet. (Various excellent private examples.)

[snip]


Angus is right, my statement was wrong. I should have ranted… er, posted that there's no privacy on the public internet, e.g., a blog. Angus's examples I liken more to the mail than public speech.
6.8.2009 1:30pm
devil's advocate (mail):
Speaking of debating 5 of anything, having just finished reading an absurd post effectively placing Eugene Volokh on a 'my five right wing enemies list' for being too nice, one must not let off the hook my given-name-sake Leiter who has tried to reup his standing in this debate (meaning the larger internet debate over pseudonyms, not the volokh thread) by updating his post on the Juan non-Volokh affair 4 years ago is my given name-sake Leiter.

I'm was just coming into Volokhdom around that time and never read much of that stuff that I remember, but Leiter talks big for someone who brings little to the table. (that is probably the most venemous remark I recall making during my history on the conspiracy although I'm open to pointers to any faux pas I may have conveniently or connivently forgotten).

He opens his post with a link to:


A few pertinent words about the reprehensible Eugene Volokh.


Even if you weren't a volokh-o-phile, I don't think you would expect to find much substance an such a link and you don't.

Leiter criticizes Eugene for asking whether Leiter's own threat to expose Juan non-Volokh is appropriate. In other words, Eugene invited the very same discussion we are now all engaged in and he was accused of asking a loaded question that purposefully subjected Leiter himself to the inevitable ad hominems that would result in a comments thread. (and by extension Jon Juan has now done the same to Ed Whelan, at least this blog is equal opportunity partisan subjugation).

That Eugene, he's one reprehensible dude. To be fair, I think the gravamen of Leiter's complaint extended to the concept that Eugene can strike a balanced and civil tone because he can count on co-bloggers and commentors to do his dirty work. If that is such a great plan of course then a clever fellow, see e.g., Sarcastro, would have posted on his own blog -- What do you think of Eugene Volokh posting the question of what anybody thinks about my pondering discovering and disclosing Juan non-Volokh's identity?

Give me a break. Eugene is quite capable of making his own arguments, I've seen him do it repeatedly in colloquy where he had no trolls to handle the incivility for him and he seemed to do just fine in persuasively honing, developing or expanding his argument rather than retreating to invective. While he has created a space that has attracted some folks who feel like piling on the Brian Lieters of the world occasionally, welcome to the internet.

And perhaps, more to the point, Leiter's organic ire at Juan seems equally misplaced. No matter what the preceding context, Leiter's self titled "tangential observation" invites the very kind of tangential rebuttal it received. To view Juan's post as some kind of insult to his own intellect, is to do himself a disservice - but there is nothing that says you have to shut up when you are digging yourself a rhetorical hole:


A somewhat tangential observation: in every society of which I'm aware the vast majority of the preeminent academic figures were, in general, cowards when it came to their own regimes, and apologists for what later generations would see clearly as inhumanity and illegality. This was clear in Germany in the 1930s, as it was in America in the 1950s. There is no reason to think the United States today is any different.


Leiter argues that Juan viciously decontextualized, misrepresented and overstated the argument he was trying to make whilst hiding in relative anonymity, i.e. pseudonymity. Hm, and the evidence for that is this response of Juan to the foregoing:


While this statement might not equate Nazi Germany with the current regime, it certainly suggests an equivalence between those who failed to oppose Nazism, those who failed to oppose McCarthyism, and those who do not oppose the Bush Administration. Haven't we had enough of these sorts of comparisons?


You could disagree with Juan and believe that the actions of academics fall under the "those who forget history are doomed to repeat it". So it is not clear that Juan is 'right' and Leiter wrong, but niether is it remotely clear that Juan is off the reservation.

As best I can grasp Leiter's outrage, he seems to think that Juan assumed his post was of the Bush=Hitler variety and he didn't mean anything so trite. He meant that today's academics are as spineless as the academics in Germany, but that observation did not substantively equate Nazi conduct and ideology (or for that matter McCarthy's tactics).

Apparently it is not enough that Juan made just such an allowance. If anything the unwritten meaning of the Juan's post is to leave as open question whether future generations will see the Bush Administration conduct as "inhumanity and illegality" on a scale the merits the very comparison's Leiter makes. Obviously Juan doubts that might be so and Leiter does not, but it would have been easy enough to so respond without questioning Juan's literacy.

Nonetheless feeling slighted and having done so, whilst citing a commentor who invoked the irony of an anonymous "supposed academic", wasn't that enough getting your jollies off?

One wonders if Juan might have provoked such a caustic defensive attitude by being right. After all, the logic here runs against all the implications being made by Leiter. Why would Juan need anonymity if academics were all patriotically circling the wagons?

Indeed if the academy, and the legal academy especially since Leiter's allegations fell upon legal scholars, are in the bag for absolving the Bush administration, then any academic who argues against sensationalism in depicting Bush's decisions regarding the Iraq War and the War on Terror is a shoe-in for tenure, right?

Coherence seems to me to be the foundation of any philosophy, but it is sadly lacking in these assaults that Leiter commits in its name.

Brian
6.8.2009 1:56pm
Bob from Ohio (mail):

monstrous manner


Bit over the top.

"Impolite" perhaps or possibly "unethical". He didn't post naked pictures of the man's wife or the schools his kids go to.



(BTW, with a very few exceptions, the breakdown here is left/right as always. Not sure that indicates a firm blog "rule".)
6.8.2009 2:08pm
byomtov (mail):
First, I don't see where Whelan has any obligation to prevent harm to Publius.

Having no obligation to prevent harm is very far from having the right to inflict harm.

Second, Whelan apparently believed he had a good reason--that's why he published his identity. That belief was sufficient.

Nonsense. Thinking I have a good reason to do something doesn't give me the right to do it. If you call me stupid to my face I might think I have the right to punch you in the nose. But I don't have that right. My belief has nothing to do with it.

Whelan doesn't like publius' writing about him. Fine. Let him respond, or publish an article calling attention to publius' foolishness, or do something else to defend himself, or ignore it altogether.

But revealing publius' actual identity is none of that. It is the act of a child kicking sand in someone's face. It does nothing to make Whelan's case.
6.8.2009 2:27pm
Bad (mail) (www):
There's really no issue here other than that Whelan was childish. None of his defenses wipe that away. He let his emotions get the better of him, decided to do something nasty for the sake of it instead of contending with Blevin's arguments, and its simply an embarrassing for a grown man to behave. End of story.
6.8.2009 2:35pm
Cato The Elder (mail):
Sorry, but I have a real problem with analyzing Whelan's behavior with the idea of "rights" here. There are no rights that are not agreed upon by people beforehand. Perhaps there was an unwritten code of general civility before the fact, but both Publius and Whelan chose to indulge in trampling over that code. I sympathize with neither party.
6.8.2009 2:35pm
Seamus (mail):

I think Ed Whelan was wrong.

But "Publius" would have been wise, when he was writing things like:

"And don't feel sorry for Ed. He knows all this -- he's a smart guy with outstanding legal credentials. He just enjoys playing the role of know-nothing demagogue. Anonymous Liberal pretty much captured it:..."

Yada, yada, yada. (And the smug "Yep" at the end of the attack by "Anonymous Liberal" almost certainly didn't help "Publius"!)

...to remember the wise council of Benjamin Franklin and Harry Truman:

"Those who live in glass houses should not throw stones,"

and...

"If you can't take the heat, stay out of the kitchen."



I think this pretty much sums it up. Publius got ad hominem, and Whelan got pissed. I've gotten similarly pissed when people made that kind of ad hominem comment about me; it usually takes me about 24 hours until I'm no longer so angry that I'm tempted to tell the commenter that I'll be happy to meet him the next lunchtime in Lafayette Square, where I will do my level best to punch his goddam lights out. Whelan's (more moderate) reaction wasn't being a dick (as some here have suggested); it was being human.

If Whelan had asked me, I'd have advised him not to do what he did, but I fully understand his thinking along the lines of "I don't have to stand here and let this clown snipe at me (as opposed making reasoned criticisms of my arguments) behind a wall of anonymity. If he wants to make personal attacks, then he can goddam well make them under this own name."
6.8.2009 2:42pm
Bad (mail) (www):
"And that's what Whelan did. It's the malicious intent behind outing publius that makes Whelan's conduct disgraceful. Whelan had no legitimate reason, besides retribution, to out publius. The outing in no way furthered the debate nor clarified it. It served no purpose other than attempting to cause harm to publius. "

And, lets not forget, potentially harm third-parties like publius' family that had no stake in or involvement with the debate at hand.

Ed owes it to his reputation to come around on this one and apologize for acting so intemperately.
6.8.2009 2:45pm
Magic Dog (mail):
Ed Whelan used anonymous source to uncover the "Publius" identity. Come on, Whelan, who were they? What wingnut principle are you hiding behind now?
6.8.2009 2:50pm
Dilan Esper (mail) (www):
monstrous manner Bit over the top. "Impolite" perhaps or possibly "unethical". He didn't post naked pictures of the man's wife or the schools his kids go to.

Monstrous because it was disproportionate to the alleged wrong perpetrated by Publius.

Publius speculated whether Whelan was being a right wing tool. That sort of motive-questioning may not be strictly within the Marquis of Queensbury rules, but it isn't exactly uncommon.

Whelan revealed personal information about Publius that had nothing to do with the argument being made.

I'd say that this sort of overreaction is indeed "monstrous".

As I said and a couple of others agreed, I think that the most plausible inference is that Publius found Whelan's soft spot (i.e., Whelan knows perfectly well that he is espousing Republican talking points that don't in fact correspond to the real world of judging) and this enraged Whelan to the point where he did something really stupid, petty, and malicious.
6.8.2009 2:54pm
Blue:
"There are no rights that are not agreed upon by people beforehand."

And that was exactly the point I was trying to make, Cato--Whelan has absolutely no obligation to Publius either to respect his anonymity nor to be proportional in his response. As students of game theory might note, disproportionality is sometimes the winning strategy.
6.8.2009 3:10pm
EH (mail):
As students of game theory might note, disproportionality is sometimes the winning strategy.

So what was the "win" here?
6.8.2009 3:35pm
Cato The Elder (mail):

So what was the "win" here?

Uh, satisfaction. Utility. Whatever.
6.8.2009 4:06pm
Seamus (mail):

Ed Whelan used anonymous source to uncover the "Publius" identity. Come on, Whelan, who were they? What wingnut principle are you hiding behind now?



Does it really matter? This isn't an instance where you can discount the conclusion on the ground that the source is unreliable. It's pretty obvious that even if Whelan got his information from Louis Farrakhan, who in turn arrived at his conclusion through a combination of numerology and I Ching, the conclusion was nonetheless accurate.
6.8.2009 4:30pm
jack lecou (mail):
And that was exactly the point I was trying to make, Cato--Whelan has absolutely no obligation to Publius either to respect his anonymity nor to be proportional in his response. As students of game theory might note, disproportionality is sometimes the winning strategy.


I believe this ethical philosophy is known as "might makes right". (And I use the word "ethical" in the loosest possible sense.)
6.8.2009 4:40pm
Blue:
Um, no. The relative power of Whelan and Publius are irrelevent.
6.8.2009 5:02pm
geokstr (mail):
wyswg: "Can I assume that you will be blasting those people on the left who are committed to making public the names of those who oppose various gay marriage measures? "

Randy R.:
Actually, it is our election laws that are committed to making public those who oppose various gay marriage measures. Whenever any person donates to a political cause, that information if public. IT is public whether a person is on the left, right or middle. The only way you have privacy is to not donate at all.

Unless of course, your campaign deliberately turns off all the required checks so that anyone, even foreigners, can donate using prepaid credit cards and ficticious names. This allows us to know that Doodad Pro, John Galt, Hbkjb jkbkj, and Good Will, among lots of others, made significant contributions to a former recent candidate for POTUS. But now at least we know they are all on the left.

So transparency in campaign laws apply to all donors, both those who favor Prop 8 and those who are against it. And this is an example of dishonesty of the left?

Yes, since there was legitimate fear that those evil right-wing religious nuts would set up and promote a website with maps to the home and business addresses of all the opponents of Prop 8, then incite picketing their homes and trying to get them fired for their political position, I can now see how honest the left was. My bad.
6.8.2009 5:07pm
Randy R. (mail):
geo: "Unless of course, your campaign deliberately turns off all the required checks so that anyone, even foreigners, can donate using prepaid credit cards and ficticious names. This allows us to know that Doodad Pro, John Galt, Hbkjb jkbkj, and Good Will, among lots of others, made significant contributions to a former recent candidate for POTUS. But now at least we know they are all on the left."

When I made my donation against Prop 8, I was asked all the right questions, and I complied. If there was a problem with the way donations were handled on a presidential election, then you should bring it to the attention of the FEC, who is empowered to deal with election issues, if they arise.

"Yes, since there was legitimate fear that those evil right-wing religious nuts would set up and promote a website with maps to the home and business addresses of all the opponents of Prop 8, then incite picketing their homes and trying to get them fired for their political position, I can now see how honest the left was. My bad."

You mean like how anti-abortionists put the names and addresses and phone number of private doctors on the internet so that people can find them and kill them? I guess those doctors didn't have a 'legitimate fear' in your opinion, right?
6.8.2009 5:20pm
Randy R. (mail):
In fact, geokstr, I distinctly recall a SCOTUS ruling several years ago. Several doctors complained that their rights were violated because some right wing religious nut (of the type you correctly describe) put their photographs online with home and business information. The ones were had been killed had a red X over the photo.

SCOTUS ruled that the 1st amendment prohibits any interfering with the placing of public knowledge upon the internet. I understand that people like you don't really like it when the tables are turned and you actually have to live with the laws that you support. But, hey, that's life, right?
6.8.2009 5:25pm
Randy R. (mail):
Ken: "Republicans often get outed in the hope that the Republican will suffer personal harm from being known as gay, in the belief that their families and supporters are violently homophobic and will refuse to vote for him simply because they don't like gay people, shun him, fire him, force him to move etc. "

Of course. Which is exactly why it was wrong when conservatives from McCarthy on to fairly recently would out gays, and even blackmail them. Strangely, though, no one on the right (and of course many on the left) really didn't care about the privacy rights of closeted gays back then.

And I don't think that most people are violently homophobic (although quite a few are. So much so that they kill people just because they are gay, but that's another matter). But the fact remains that throughout much of America, being known as gay is a career ender, whether it is politics or in business. And this is doubly true within the republican party, as Washington is awash in closeted gays in that party.

So here's a simple solution: We are working towards that day when being gay isn't a stigma at all. Anyone should be able to come out and feel safe in their person and their position. Then, outing of anyone will no longer have any effect. Unfortunatley, we are constantly stymied in this process, and when we try to remove the stigma, we are accussed of trying to 'normalize' homosexuliaty, or promote it. And you often see that on the VC. And the people who take that position are by and large from the conservatives.
6.8.2009 5:47pm
Vader:
ShelbyC:


The Emperor doesn't wand the publicity, eh?


The Emperor is not as forgiving as I am.
6.8.2009 5:47pm
Seamus (mail):

Strangely, though, no one on the right (and of course many on the left) really didn't care about the privacy rights of closeted gays back then.



Oh, I think Roy Cohn did.
6.8.2009 6:54pm
geokstr (mail):

Randy R. (mail):

geo: "Unless of course, your campaign deliberately turns off all the required checks so that anyone, even foreigners, can donate using prepaid credit cards and ficticious names. This allows us to know that Doodad Pro, John Galt, Hbkjb jkbkj, and Good Will, among lots of others, made significant contributions to a former recent candidate for POTUS. But now at least we know they are all on the left."

When I made my donation against Prop 8, I was asked all the right questions, and I complied. If there was a problem with the way donations were handled on a presidential election, then you should bring it to the attention of the FEC, who is empowered to deal with election issues, if they arise.


You obviously haven't followed the controversy over the Obama campaign's online donations, have you?
More Bogus Obama Donors Surface
This is from CBS, who, like most of the legacy media, downplayed it as much as they could. There are lots of other sources who have documented much more, but this was the first one in my google search, and because it's not a right wing blog or Fox, I linked to it for you.

Here is a story that contends that an FEC analyst had major concerns about the legality of $200 million in Obama donations. However, despite repeated attempts, he couldn't get his bosses to take action:
Obama's Fishy $200 Million

Another from the Washington Times (which references a NYT article):
FEC Should Start Obama Audit Now
"Turns out that "Doodad Pro" and "Good Will" are not the only phony contributors to Barack Obama's presidential campaign. The New York Times finally bestirred itself to apply some basic investigative journalism attention to the Democratic presidential nominee's donor list. The Times found nearly 3,000 other questionable donors like "Jgtj Jfggjjfgj" and "Dirty West" after what the paper admitted was just a cursory look at the Illinois senator's September financial filings. But then Times reporters Michael Luc and Griff Palmer revealed an incredible level of naivety by stating "it is unclear why someone making a political donation would want to enter a false name."

Also, nearly half of Obama's donations were under $200, and he refused to release their names, so no one could check their source or legality, and they are not on "Open Secrets" website where all the other donations are listed.

Rather surprising that such a politically astute person such as yourself would not be aware of this controversy.

On the matter of disclosure of abortion doctors' addresses, I find that reprehensible, but still not of the magnitude of the Prop 8 opponents, whose own disclosures were more like publishing the addresses of all the women that got abortions instead of just the leaders of the movement.

Perhaps I am just naive, but I think that both sides should be held to the same standards. But following this forum, I have arrived at the conclusion that "standards" are either non-existent or in the eye of the beholder when it comes to politics.
6.8.2009 7:42pm
jukeboxgrad (mail):
geo:

You obviously haven't followed the controversy over the Obama campaign's online donations


You obviously haven't bothered to pay attention to how online donations actually work (link, link).
6.8.2009 10:22pm
Kenneth Almquist (mail):
"devil's advocate" asserted:
"I think reasonable people could disagree whether Sotomayer's joke captures the policy-before-law sentiment or law-before-policy approach. I can't see Whelan as offbase for using the joke as a jumping off point on this concern. Given Obama's talk about empathy and the 'wise Latina' remark, the sense that outcomes and public sentiment should displace the rule of law with a rapidly evolving social-justice common law seems a quite rational point of concern over this nomination."


When Obama has talked about the value of empathy, he's made it clear that he only sees this as relevant for the hard cases. In other words, he's endorsing a law-before-policy approach; policy is considered only when the law otherwise doesn't apply a clear answer.

Sotomayor's "wise Latina" remark doesn't provide any clue as to whether she favors a law-before-policy approach, but in the 2001 lecture containing the remark, Sotomayor says:
"While recognizing the potential effect of individual experiences on perception, Judge Cedarbaum nevertheless believes that judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law. Although I agree with and attempt to work toward Judge Cedarbaum's aspiration, I wonder whether achieving that goal is possible in all or even in most cases."

Sotomayor attempts to transcend her personal sympathies and prejudices based on "reason of law," rather than rigorous policy analysis. That's about as strong a rejection of the policy-before-law approach as one could hope to find unless Sotomayor has explicitly addressed the question.

Let me say at this point that I don't see any reason to expect her to have commented on the merits of "policy before law." Googling "strict constructionism" or "living Consititution" returns thousands of hits, including Wikipedia pages devoted to those philosophies of judicial interpretation. Searching for "policy before law" doesn't return a single relevant hit. Based on that, I would hazard a guess that there is not a single legal scholar who supports "policy before law."

In short, to accept the devil's advocate's defense of Wahlen, I would have to accept that it's resonable to believe that Sotomayor holds a philosophy of judicial interpretation even though (1) it's a priori unreasonable to believe this because few if any legal scholars accept this philosophy, (2) Sotomayor has rejected this philosophy, and (3) she was nominated by Obama, who has also rejected this philosophy.

The "devil's avocate" goes on to claim that, "Publius is simply over the top in alleging disingenuity on Whelan's part." Since I reject the preceding part of the "advocate's" argument, I'm not convinced that Publius has done anything other than state the obvious. I'd also note that, given that Whelan decided to respond to the allegation at all (by outing Publius), Whelan's failure to attempt to refute Publius's allegation is pretty telling.
6.9.2009 5:28am
Randy R. (mail):
Geo: Not at all. No woman having an abortion agrees to make her name public. In fact, they take great measures to keep the information private.

When you donate to a political campaign, however, you agree to make your infomation public. Don't like it? Then don't make a donation. Those are your choices.

All the information about who donated to what campaigns is all easily avaialble on the internet, and can be found, google map or no, quite easily. I understand that you are upset because the people you don't like used the laws and techology to create something new, yet perfectly legal. It's unfortunate a few people lost their jobs due to their donations, but that is the risk that they took.

I can certainly bet you that conservative organizations combed through the lists of those who donated in opposition to Prop 8, and had they found any employees who donated, they would have eliminated them from their positions.

So yes, it works both ways.
6.9.2009 2:53pm

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