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Whelan v. publius Post-Script:

Two last posts from Ed Whelan and one from publius that should end the matter.

byomtov (mail):
Having criticized Whelan sharply, I commend him for his apology.
6.9.2009 9:01am
Snaphappy Fishsuit Mokiligon:
Good for him. While many partisans were defending his actions, it appears Whelan independently reconsidered what he had done and made the decision to try and make things right. That happens far too infrequently these days.

I wonder whether those who defended the outing here and elsewhere will now reconsider whether the conduct merited such a spirited defense.
6.9.2009 9:12am
rick.felt:
I wonder whether those who defended the outing here and elsewhere will now reconsider whether the conduct merited such a spirited defense.

"Spirited"? If you say so...

Although I agree that anonymous speech has its merits, I don't consider it an unqualified good, and I certainly don't think the internet suffers from a lack of anonymous bloggers. What it does lack is civility, and I'm willing to sacrifice some anonymity to increase civility.

I'd like the anonymous to have to think carefully before they use anonymity to express opinions, particularly when engaging in impassioned arguments with the non-anonymous. I hope that someday it would become socially unacceptable for the anonymous to attack the non-anonymous. This was an opportunity for that. Had Whelan not backed down, he could have helped to make it socially acceptable to reveal the identity of anonymous bloggers who attack the non-anonymous. I guess that norm is not going to develop.

We hear all the time - ironically enough, from those who are most interested in anonymity - that "information wants to be free." Perhaps anthropomorphized information does. But an anonymous blogger's identity is information, and I can't see why that information wouldn't want to be free. If anonymous bloggers' identities are known, they will be made public. Don't expect that to change.
6.9.2009 9:26am
rosetta's stones:

"...that should end the matter."


It's amusing that this blog sniping is deemed worthy of all this discussion, and should wind up as a "matter" in the first place.

It's the frickin internet, kids. Take your average tavern discussion, lift it onto a 17" screen, add in a notch or 2 of vocabulary, and you've about got it covered.

I suspect Mr. Whelan and Mr. Publius are taking themselves a bit too seriously, as are their other blogger brethren.
6.9.2009 9:30am
DennisN (mail):
His apology means nothing. It's nothing but empty words by a vicious coeward who has chosen to attempt harm on a political rival.

Let him shut down his blog is he is truly sorry.

Otherwise, he is nothing but a hypocrite.

The man is no gentleman.
6.9.2009 9:31am
DennisN (mail):
rick.felt:


I'd like the anonymous to have to think carefully before they use anonymity to express opinions, particularly when engaging in impassioned arguments with the non-anonymous.


It's an old Internet axiom that you should treat everything you post on the 'Net as if you were publishing it in the New York Times.

If you follow that axiom, you have a good chance of staying out of trouble.
6.9.2009 9:33am
DennisN (mail):
Sorry, I should learn to spell.
6.9.2009 9:34am
rick.felt:
It's nothing but empty words by a vicious coeward who has chosen to attempt harm on a political rival.

I don't know about "vicious", but it's hard to say that the coward in this dust-up is the one who put his name behind his opinions.
6.9.2009 9:36am
ChrisIowa (mail):

It's an old Internet axiom that you should treat everything you post on the 'Net as if you were publishing it in the New York Times.

Considering what is happening to the readership of the New York Times, that axiom should be reconsidered.
6.9.2009 9:39am
Kovarsky (mail):
those familiar with my less-frequent comments already know my relationship with publius so i wont issue another "in the interest of full disclosure" notes again.

one of the things that bothers me in this coverage is that the intellectual argument has been framed as whether, when someone is personally attacked, the putative victim may 'out' the attacker.

that is indeed an important discussion, but the premise that john attacked ed to begin with is problematic here. the only thing john said in the sotomayor exchange (the two of them had a flare up about harold koh a few months back) was that ed was a 'know nothing demagogue.' that's it. and many people analyzing this imbroglio (no doubt without actually having read the exchanges) act like john said something about ed's kids.

i chalk a lot of this up to the fact that, i'm guessing, whether they admit it or not, many people simply proceed from a syntactic error: 'know nothing demagogue' means 'demagogue of know nothing [people].' john was not calling ed stupid. john approvingly cited anonymous liberal's post about ed being a 'hitman,' but if that was what really got ed's goat, why not go after anonymous liberal? the reason, i suspect, is because - as john notes - what REALLY pissed ed off was john's assertion that eugene had badly bettered him in the exchange about whether appellate courts make policy. and certainly THAT is not a legitimate reason for retaliatory identity disclosure, even if such justification might exist in other circumstances.

all of this is to say that there are legitimate questions about whether pseudonymous blogging is good or bad, and whether retaliatory identity disclosure is justified. it just bothers me to see many proceed in this debate as though john said something particularly nasty about ed personally. (or 'tugged on his cape,' an expression that fits into the 'reveals more about the speaker than the subject' category.)
6.9.2009 10:07am
Dave N (mail):
I think both Ed Whelan's apology and publius' comments in response were gracious. Acknowledging that you did something wrong is difficult. Being gracious in accepting an apology can be difficult as well.

On a side note, I want to welcome back Kovarsky. I have missed his commentary here (even when I disagree with it).
6.9.2009 10:18am
Allan (mail):
I think Whelan did the right thing in the end. Unfortunately, as he recognizes, the damage has been done. Too bad for that.

The problem with what Whelan did is that it was for vengance. His argument did not gain strength because he publicized the name of his accuser. And he knew that at the time. The only reason he exposed the name was to embarrass his accuser. IMHO, that is wrong.

While eye for an eye might be good in concept, it served no-one here.
6.9.2009 10:23am
rick.felt:
all of this is to say that there are legitimate questions about whether pseudonymous blogging is good or bad, and whether retaliatory identity disclosure is justified. it just bothers me to see many proceed in this debate as though john said something particularly nasty about ed personally

Even if we agree that "retaliatory identity disclosure is justified," I submit that in a charged debate, who drew first blood, and who "crossed the line" will usually be impossible to determine objectively. It's an unworkable standard.
6.9.2009 10:37am
David M. Nieporent (www):
I think both Ed Whelan's apology and publius' comments in response were gracious. Acknowledging that you did something wrong is difficult. Being gracious in accepting an apology can be difficult as well.
So's yer mother.

On a serious note, what's interesting to me as an observer is how many people refuse to be gracious on someone else's behalf. Publius accepted the apology, but lots of people who weren't "wronged" by Whelan are nonetheless taking more offense than publius and are rejecting the apology.
6.9.2009 10:42am
Calderon:
For reasons I described in the first thread, I don't think Whelan (or anyone else) does something wrong when they reveal the identity of either an anonymous or pseudonymous poster (and I don't really think there's much different between those categories).

If Whelan wants to apologize, that's up to him, but his conduct including the apology does seem to reinforce what his critics were saying in the other thread that Blevins got to him and Whelan acted in a fit of pique in revealing Blevins' identity, rather than from some principled reasons about anonymity.
6.9.2009 10:52am
MAM:
That goes more to those who were defending the outer.
6.9.2009 10:53am
John Humboldt (mail):
Yet more proof that Whelan is the better man.
6.9.2009 10:54am
Memetic Technologies:
... whether retaliatory identity disclosure is justified.


Identity disclosure may certainly be justified under some circumstances. But people here need perspective about “internet attacks”.

Just for instance, a few days ago, the FTC issued a news release, headlined:
FTC Shuts Down Notorious Rogue Internet Service Provider, 3FN Service Specializes in Hosting Spam-Spewing Botnets, Phishing Web sites, Child Pornography, and Other Illegal, Malicious Web Content

I'd encourage the legally-inclined here to read the FTC's Memorandum of Points and Authorities in that case. It'll give you some insight into what's out there: Internet attacks. Justification for stripping anonymity.

In contrast, watching Whelan and Publius go at it kinda reminds me of three-year olds tussling. You keep waiting for the first one to say: “U R pwnd! I haxxor U!” And then you then you realize that these two aren't that sophisticated yet. Not that grown up.

Get some perspective here, folks, on real attacks.
6.9.2009 10:58am
PC:
It's the frickin internet, kids. Take your average tavern discussion, lift it onto a 17" screen, add in a notch or 2 of vocabulary, and you've about got it covered.

Maybe back in 1999. In 2009 you have a rich medium full of public, pseudononymous, and anonymous people talking about topics ranging from politics to poetry. These discussions are sliced and diced using things like eigenvector centrality to determine patterns and opinions for a range of clients from Fortune 500 companies to government TLAs.

While individual discussions are pretty pointless, there is a goldmine of data in the aggregate. Toss a 50+ machine server farm to do something like Memeorandum does and add in some more advanced network theory and you'll see what I mean. Make sure it's localized and internationalized (Mandarin, Arabic, Farsi...) and you'll start to see the real value about blogs and arguments on the internet.

Mmmm, data.

Back on topic, I commend Mr. Whelan for his apology.
6.9.2009 10:58am
Talkosaurus:
I think the primary lesson here is how unbelievably over-serious the blogsphere takes itself at times. It's a topic with some meat/discussion-worthy overtones, but there's a bit of a tempest-in-a-teapot quality as well.

At the end of the day 'Publius' is made (internet-relative) more 'famous' by this event than by any of his written content, and essentially trades off 'pseudonimity' that was used (primarily) to be more of an internet smart-ass then he would be under his own name. Ed Whelan take a hit for doing something he probably shouldn't have done, and get's no credit for getting the better of the actual substantive issue that was being discussed between the two, so Whelan-haters shouldn't have much to gripe about.

I thinks there's something to the argument that 'pseudonymous/anonymous', in the limited sphere of directly partisan interaction, enjoy a great potential advantage/different rules of accountability than a blogger under their own name, but that aspect of the issue seems to have been kicked down the road a bit.
6.9.2009 11:09am
MarkField (mail):

I thinks there's something to the argument that 'pseudonymous/anonymous', in the limited sphere of directly partisan interaction, enjoy a great potential advantage/different rules of accountability than a blogger under their own name, but that aspect of the issue seems to have been kicked down the road a bit.


I don't think the advantage is all that great. In fact, I'm skeptical that it even exists. Sure some names people use on the internet sound like real names, but who's to know that they "really" are? Absent some other public disclosure, the mere fact of posting under an apparently "real" name doesn't give you any certain information about identity. In that sense, a pseudonym works exactly the same way.
6.9.2009 11:30am
Adam B. (www):
The problem with what Whelan did is that it was for vengance. His argument did not gain strength because he publicized the name of his accuser. And he knew that at the time. The only reason he exposed the name was to embarrass his accuser. IMHO, that is wrong.
Bingo. There are circumstances -- a paid partisan not disclosing his ties, say -- in which outing a pseudonymous blogger might be justified. But doing it under these circumstances is clearly wrong.
6.9.2009 11:34am
Ken Arromdee:
On a serious note, what's interesting to me as an observer is how many people refuse to be gracious on someone else's behalf. Publius accepted the apology, but lots of people who weren't "wronged" by Whelan are nonetheless taking more offense than publius and are rejecting the apology.

Politeness often requires that we utter empty words that we don't mean. Publius's acceptance of the apology could very well be such politeness. I have no way to tell, so his acceptance provides me with no useful information. Why, then, should I pay any attention to it?
6.9.2009 11:45am
DennisN (mail):
rick.felt:

I don't know about "vicious", but it's hard to say that the coward in this dust-up is the one who put his name behind his opinions.


Depending on the circumstances, outing someone can have social, employment, or even career implications. There is the real possibility of 3-D harm, over, what, some nasty words in the ether? As David said, "So's yer mother." So, yes, I would describe that as vicious.

For someone who cannot be harmed by a similar action to launch the attack, in this instance is a cowardly act.

In the Good old Days (Oh, how I miss the Diphtheria! ;-) ) this would have been settled by the sending of seconds.

David M. Nieporent:

lots of people who weren't "wronged" by Whelan are nonetheless taking more offense than publius and are rejecting the apology.


It depends on how you define "wronged." If I punch the guy next to you at the bar, were you wronged? It makes the place appear less safe for everyone.

Is this overblown, particularly in the face of Publius' acceptance of the apology? Everything in the blogosphere is overblown. As long as we're only trading nasty words, it can blow over.
6.9.2009 11:48am
M N Ralph:

Yet more proof that Whelan is the better man.



I'd like to give you a swift kick to the testicles. Then, I'd apologize. Then, you'd acknowledge me as the better man. Brilliant!
6.9.2009 12:15pm
Talkosaurous:
I don't think the advantage is all that great. In fact, I'm skeptical that it even exists. Sure some names people use on the internet sound like real names, but who's to know that they "really" are? Absent some other public disclosure, the mere fact of posting under an apparently "real" name doesn't give you any certain information about identity. In that sense, a pseudonym works exactly the same way.

While there's a bit of point there, I feel fairly confident that 'Ed Whelan' is, well...Ed Whelan. Ann Althouse is most probably Ann Althouse, Glenn Reynolds is a good bet to be Glenn Reynolds, etc. In short, I think the good portion of 'bigger name' bloggers, left or right, are who they say they are (assuming a blog under their own name).

To me, the internet is a relatively 'flat' commodity. There are popular 'heirarcies' of course, but the instance of someone with a relatively high-level public background like Ed Whelan involved in a spat with 'Publius' isn't translatable to a 'real world' parallel, such as a political figure going after someone who sent him an angry letter. In the internets Whelan and 'Publius' occupy the same ground, each get's links/support from their own partisan factions.

People take what they write on the internet pretty seriously (as said, perhaps too seriously, but that's a side point). Ed Whelan cares about what he writes, and cares about responses, supportive and critical. I'm sure 'Publius' is the same. But in a heated debate, are the 'rules' the same for the named blogger and the 'pseudonymous/anonymous' blogger?

Say 'Mark Field' is your real name, and you run MarkField.com, for all to see. Let's say you're a law professor, and you take your blog relatively seriously. Along comes 'Talkosaurous', a pseudonymous blogger on the other side of the partisan spectrum from you. I declare I'm also a law professor, and my professional opinion, in short, is that you're a partisan ass who spews talking points. Let's say I regularly snipe at your postings, with a few good point but also a whole lot of snark. I get a lot of support from my partisan 'amen' chorus, and your inbox fills up with 'So, what's your response to Talkosaurous?' Opposing partisan blogs link to exchanges, citing 'law prof Talkosaurous cleans Mark Field's clock' again!'.

You and I are now rumbling in pretty heated, public terms. Do you feel we're each under the same constraints? Your friends, co-workers, and detractors all can follow your arguments and temperament. What, and how you respond, can impact your reputation. For me, I've got a free hand. If I'm being bested I can play up the snark/troll as much as I please and count on the support of my 'amen' partisan chorus. You've got to take it serious, I can freely play the John Stewart 'Clown-Serious' game; if I've got you on an issue I'm deadly serious, point out a flaw and it's snark/irony clown time. In my view, I've got a much freer hand in our interaction than you do, and you get held to a higher standard to boot.

The standard line in this affair (re: pseudonymous/anonymous) is 'Quality arguments stand on their own. Even if pseudonymous/anonymous, people will still judge the intellectual quality of what's said or written on it's own merits.' This is a wonderful concept, and substantively true in theory. I also hope nobody over the age of 20 thinks the real world works that way. The interenets, like the real world, are most often akin to High School home room than an imaginary cool, calm intellectual salon. The blogsphere, especially in partisan matters, run's on partisan support, oft regardless of (or marginalizing) the intellectual merits. Blogsphere arguments are often upscale pissing matches, and I believe there's a tremendous inherent advantage in not having to answer to any 'real world' consequences, especially if you're going to be taken as seriously as the 'named' blogger.
6.9.2009 12:21pm
ArthurKirkland:

I'd like to give you a swift kick to the testicles. Then, I'd apologize. Then, you'd acknowledge me as the better man. Brilliant!


I do not doubt that, depending upon the strength and aim of that kick, you might emerge as the better man.
6.9.2009 1:13pm
DennisN (mail):
Talkosaurous:


Say 'Mark Field' is your real name, and you run MarkField.com, for all to see. Let's say you're a law professor, and you take your blog relatively seriously.


Probably the first mistake. ;-)
6.9.2009 1:35pm
Ken Arromdee:
I believe there's a tremendous inherent advantage in not having to answer to any 'real world' consequences, especially if you're going to be taken as seriously as the 'named' blogger.

But sometimes these real world consequences are undesirable. For instance, posting that you favor abortion rights, and then having a pro-life employer Google you and decide not to hire you on that basis, is a real world consequence. However, I would argue that it's a good thing to insulate people from that real world consequence. Having your house picketed at 4 AM is certainly a real world consequence too, for that matter, but it's appropriate to try escaping that consequence.
6.9.2009 1:45pm
Talkosaurus:
I believe there's a tremendous inherent advantage in not having to answer to any 'real world' consequences, especially if you're going to be taken as seriously as the 'named' blogger.

But sometimes these real world consequences are undesirable. For instance, posting that you favor abortion rights, and then having a pro-life employer Google you and decide not to hire you on that basis, is a real world consequence. However, I would argue that it's a good thing to insulate people from that real world consequence. Having your house picketed at 4 AM is certainly a real world consequence too, for that matter, but it's appropriate to try escaping that consequence.

What you've quoted is specifically addressing a relatively limited sphere (direct, heated, continued, high-profile partisan/political 'argument/debate' vs. other bloggers), not saying that all forms of pseudonymous/anonymous are without merit. I think 'pseudonymous/anonymous' is reasonable and fine for a whole host of blog-types/comments. Where (in the internet world) the arena is directly combative, political, and high-profile, the pseudonymous/anonymous blogger would seem (to me) to potentially enjoy a different set of 'rules', as outlined in my earlier post.
6.9.2009 2:03pm
devil's advocate (mail):
so the matter is not over for me because there is someone else who got away with rhetorical murder 4 years ago and used this event as cover to re-up his own partisan 'philosophy'.

Brian Leiter has taken the Whelan/Blivens controversy as an opportunity to update his attacks on Jonathan Adler and Eugene Volokh. Now you can color me as a victim of confirmation bias given my membership in the conspiracy [it was the free secret decoder ring that really biased me], but I think Leiter's original complaints unavailing, and his retreaded whining thin gruel.

He accuses Jonathan of smearing people for the temerity of having asked, during his pseudonymous period, whether it was getting a bit trite to make serious anology if not allege precise equivalencies between Nazi conduct in World War II, McCarthy's approach to identifying communists, and American conduct of the Iraq War and the war on terror in general.

I'm not making the case that Jonathan was objectively right in the import of his all but rhetorical question -- but it can hardly be characterized as a smear.

And the case for calling Eugene "Reprehensible" is that he is too polite, while deviously counting on foul-mouthed, slanderous trolls to do his work. The evidence for this was the Eugene asked the same question that we have been debating in regard to Ed Whelan, whether disclosure of pseudonym is polite. Because it was Leiter at the time threatening to ferret out Juan non-volokh, Eugene's question was supposedly a loaded invitation to pile on Leiter.

I haven't read all the responses to the thread, but I have seen enough of Eugene's work to be quite sure that he does not depend upon the invective of surrogates to make his argument -- and that when he asks a question he has not preconceived the answer -- or to the extent he has he does not telegraph some invitation to his own good graces for commentors who respond in some 'favored' manner.

There is a degree of latitude at the conspiracy that affords for the discussion to go forward without nuns rushing out to slap folk's knuckles every thread. But between the inevitable ad hominem and flaming rhetoric, there is a good deal of useful more dispassionate content. Last I looked, that is how comments work, and Volokh tends to attract as much of the latter as any legal academic site which, I think, explains the popularity of the site.

It is not some perfect world with heavy policing of comments, but the flaming posts tend to undermine the view of their authors and I can't imagine what Leiter was possibly worried about,unless, just as with Whelan, some part of the conversation got to him.

So Whelan has apologized but Leiter still has a chip on his shoulder three miles wide. I suppose quoting the bible might be considered little too fundamental, but that bit about getting the lumber out of one's own eye before chasing the mite in anothers has aphoristic quality with regard to one's own christendom.

More to the point, everyone would be justified in piling on Leiter for passing off his ramblings as philosophy and not polemicism. His claim in an even more absurd post to have "shredded" Juan's commentary is as self-important, self-absorbed and false as any comment Eugene has ever made is "loaded".

I haven't read enough of Leiter's work to call him a fraud, but in studying his posts about Juan and Eugene, I believe I have more than enough evidence to call him a cad.

If that makes me "part of the usual parade of right wing dopes" (Leiter's comment) or one of "the bottom feeders of the blogosphere" (Leiter's wife's euphemism) so be it. Come to think of it, maybe Lieter's wife was just suggesting that he look in the mirror.

Brian
6.9.2009 2:29pm
tvk:
I must say that this is surprising, and quite admirable. I first thought that Whelan was being, at least, quite childish in outing his critic. But it takes real guts to admit to yourself that you erred, and it is even harder to do so in public, especially when other people are defending you.
6.9.2009 2:29pm
devil's advocate (mail):
damn

. . . without regard to one's own Christiandom

Eugene, still begging for editting on the new blog engine.

Brian
6.9.2009 2:36pm
Randy R. (mail):
Ken: "Politeness often requires that we utter empty words that we don't mean. Publius's acceptance of the apology could very well be such politeness. I have no way to tell, so his acceptance provides me with no useful information. Why, then, should I pay any attention to it?"

So why pay any attention to Whelen's apology? Could be just politeness -- we realy have no way to tell, do we?

But I would suspect that if this matter were brought to the attention of Miss Manners, she would agree with you that sometimes that is the case. And so politeness demands that you not question the sincerely of someone's apology or acceptance of the apology.

Unless, of course, it is your desire to start a blood feud to last for generations....
6.9.2009 3:04pm
MarkField (mail):
Talkosaurus, I think the general point you make -- that there's an asymmetry involved -- is right, but that it has a more general cause than pseudonymity.

Let's use the real world as an example. I can say pretty much whatever I want about President Obama, but he can't respond in kind no matter what I say. The reason for this is not that I'm hiding my name, but that my name doesn't mean very much. I have nothing to lose; he does. This remains true even at higher levels. Rush Limbaugh can attack Obama abusively, but Obama can't respond in kind because their situations differ -- again, the controlling factor is that Obama has more to lose.

Now, I'd agree that pseudonymity is a factor in evaluating how much somebody has to lose. But it's not the only factor, and I don't think it was important in the particular case of publius v. Whelan. Publius had been blogging under that name for 5 years. He had reputation to maintain in order to preserve his credibility and status as a blogger. Perhaps that wasn't as much status as Whelan had, but that lesser status wasn't a function solely of being pseudonymous; other factors go into the equation as well.

In short, while I agree with you, I think there are limits to the claim of asymmetry.
6.9.2009 3:08pm
EH (mail):
I think the most meaningful thing in this apology exchange is that Whelan refers to his counterpart by his pseudonym throughout.
6.9.2009 3:35pm
DennisN (mail):
devil's advocate:

Because it was Leiter at the time threatening to ferret out Juan non-volokh,


If that is true (not challenging you, just don't independently know) then he invited the outing of himself. If you brandish a weapon, you can't complain when one is used on you.
6.9.2009 3:46pm
rick.felt:
I can say pretty much whatever I want about President Obama, but he can't respond in kind no matter what I say. The reason for this is not that I'm hiding my name, but that my name doesn't mean very much.

There's that. There's also the public-figure defamation context. I'm not saying that Blevins defamed Whelan, but as a private citizen, Whelan is capable of being defamed without the whole pesky "actual malice" thing. If you're a public figure, potshots from the anonymous and unimportant are expected, but Whelan's still a private citizen, and our conventions say that his hand is more free to protect his reputation.

This remains true even at higher levels. Rush Limbaugh can attack Obama abusively, but Obama can't respond in kind because their situations differ -- again, the controlling factor is that Obama has more to lose.

I guess it depends on what you mean by "abusively," but Obama has shown willingness to go after Limbaugh directly.
6.9.2009 3:55pm
LTR:
P.G. Wodehouse once said "It's a good rule in life never to apologize. The right sort of people do not want apologies, and the wrong sort take a mean advantage of them". Whelan should have considered that quote. I still think his exposure of Publius was justified. It's really pathetic that he can't take the heat, and I think many people who defended him this time around, won't waste time next time he hurts someone feelings. So I hope he enjoys this apology thing, because he will be apologizing a lot in future.
6.9.2009 4:00pm
Ken Arromdee:
So why pay any attention to Whelen's apology? Could be just politeness -- we realy have no way to tell, do we?

I only care about Whelan's apology as an acknowledgement that his behavior is considered beyond the pale by the community at large. Whether he really regrets his behavior is irrelevant to this. Publius's acceptance of that apology, on the other hand, has nothing to do with the larger community.
6.9.2009 4:15pm
KWC (mail):
Why the change of heart? I'm still not clear.

And why are comments disabled on Bernstein's Israel post? I find that utterly inexcusable. For whatever reason, from time to time, contributors to this blog decide that they don't want comments on their posts. I'll suggest that there is no good reason for doing that.

It could be that the poster is worried about their post's inciting negative reactions. But what principled reason exists for distinguishing between when it is okay to speak at us (the commenters) and when it is okay for this blog to be a dialogue? If you can't defend your position, or if your statements are outlandish, that reflects a problem with your post, not us. Why are we punished?

It could also be that the poster expects there to be some "trolling" or "spam" that is offensive. But there is a mechanism for that. You can delete the comments, or better yet, ignore them. Why should legitimate speech be stifled just because certain people will abuse the forum. They always do anyway.

It seems to me that there is no obligation to allow comments on a blog. But once you do allow comments on a blog, you've opened the forum. And the forum should always be open. Picking and choosing which posts welcome comments and which do not cannot be justified by any legitimate rule. It is extremely condesceding. It sends the message that we should sit anxiously awaiting your wise words and, on occasion and only when you deem it appropriate, you, too, may speak.

In sum, David, we are not students in your classroom. Stop treating us that way.
6.9.2009 4:41pm
devil's advocate (mail):
Dennis N



Because it was Leiter at the time threatening to ferret out Juan non-volokh,





If that is true (not challenging you, just don't independently know) then he invited the outing of himself. If you brandish a weapon, you can't complain when one is used on you.


Dennis, the contemplation of this is contained in Leiter's own posts on his own blog, however don't confuse Leiter and Blevins.

Leiter is not a party to the present dispute and did not blog anonymously. He said about Blevins in his update that Blevins should be proud to be exposed and proud of the things he said about Whelan.

So no hypocrite here. Just someone who is remarkably dense as to what constitutes winning an argument. And caddish for calling Jonathan illiterate, Eugene reprehesenible, and then complaing about commentors who "smear" people as the "bottom feeders of the blogsophere."

At the risk of falling into a puerile moment as did Whelan, I feel compelled to dredge a phrase from my schoolyard repartee: it takes one to know one.



Brian
6.9.2009 4:50pm
rosetta's stones:
I agree, this blog is abusive. It is an outrage, that we're being forced to click in and accept this abuse. Are we going to sit still and take this?!

No!

Every once in a while, the tree of liberty has to be fertilized with the residue of bloggers and other tyrants.

(but lissen... you bring one bit of residue from these bloggers near my trees, and there's gonna be trouble!)
6.9.2009 4:52pm
loki13 (mail):

There's that. There's also the public-figure defamation context. I'm not saying that Blevins defamed Whelan, but as a private citizen, Whelan is capable of being defamed without the whole pesky "actual malice" thing. If you're a public figure, potshots from the anonymous and unimportant are expected, but Whelan's still a private citizen, and our conventions say that his hand is more free to protect his reputation.


Uh, huh?

1. It is unclear whether Ed Whelan is a private or public figure. I think a former high-profile government employee who appears on numerous television shows and has a relatively high-profile journalism gig might well qualify as a public figure.

2. Second, while he might be a private figure (cf. Gertz) this would certainly be a matter of public concern, so that the actual malice requirement would be in play if he wanted real (presumed) damages. I find it hard to believe that Ed suffered any actual damages.

3. Third, you misunderstand the caselaw dealing with anonymity on the internet. It would take too long to go into here (I have a life and work), but as a general matter you go after the ISP for disclosure of the identity, allowing the anonymous "defamer" to attempt to squash the release of the information. None of this was done.

4. Finally, I don't think there was any defamatory content from the speaker (publius) without getting into ISP liability (CDA) for republication (where they would be protected).

To sum up- what? How about this- "I'm not saying publius committed battery on Whelan, but this is the kind of self-help our conventions would allow."

I've managed to stay off this topic so far, but I would just add the following-

I like commenting anonymously. I also am aware that anyone with way too much time on their hands could probably figure out who I was. I think that, for someone to do so, would be an amazingly evil and "dick"-ish thing to do. While most of my posts have been reasonable and pleasant, I have been as guilty as anyone else of some that I have regretted, and I have posted some comments that, while accurate and truthful, I would prefer to not have a conversation with my employer and (some of) my family about.

I think that anonymous comments allow for a multiplicity of opinions, and a freedom that you might not otherwise get. Do they get abused? Yes. But I think the benefits greatly outweigh the drawbacks.

And if Whelan truly thought that publius's comments crossed a *legal* line, then there were legal remedies available to him. Instead, he did something that was intemperate and foolish and reflects poorly on him, and I am glad that he realized it and apologized.
6.9.2009 4:52pm
Sid the warmonger (mail) (www):
It's the frickin internet, kids. Take your average tavern discussion, lift it onto a 17" screen, add in a notch or 2 of vocabulary, and you've about got it covered.

This may become one of my favorite quotes. They had a passionate, heated, intellectual debate and were publishing it on the internet.

I am happy that an apology was offered and accepted. That speaks to the nature of both men involved. But I think it really is a tempest in a tea kettle.

Words have meaning. There are any number of axioms that stem from that thought. It seems here that some bystanders and key individuals want to have a nuanced and sophisticated truce. Words that you publish on the internet can be held against you unless you use those words anonymously or through the use of a pseudonym. Really? Hmmm.....

So, what f'ing dimension are you living in? There are consequences for our actions, words, and perceptions. We had a public firing of a civil servant for using the word "niggardly" correctly because his supervisors did not know what the word meant.

My father had a differing and real perspective on the expression - people who live in glass houses should not throw stones. My uncle understood the expression that if your faults can be seen that you should not express an opinion on someone else's faults. True. But my father went to the simple truth - the consequences come when they throw back. Life has consequences. It just does. The "academic" world will get its butt kicked everytime it forgets that life has consequences.

Back to Rosetta Stone's words, I think there is truth in that perspective would have kept this from becoming the brouhaha that it did. There is no protection of anonymity in the real world. Conversely, you will get called on the carpet if you reveal someone's identity for vengeance. And in other news, the Earth is round, people in Africa are starving, and price of rice in China is still influenced by market volatility.
6.9.2009 4:52pm
conlaw2 (mail):
kwc if you want a forum for commentary on a subjetc, it's pretty easy. Do what others have done, including the bloggers here.

Create your own blog. Link to a blog here with disabled comments. Make your own comments. Invite comments.
6.9.2009 4:54pm
Perseus (mail):
I, of course, am all in favor of anonymous opinion pieces, and while I could contemplate certain circumstances where revealing a person's identity would be justified, this wasn't one of them (perhaps Whelan could have challenged 'publius' to a duel instead). So Whelan's apology was welcome.

Picking and choosing which posts welcome comments and which do not cannot be justified by any legitimate rule.

You might want to e-mail DB directly with your childish complaints or simply read the comment policy: "if you prefer a more free-for-all approach -- there are surely plenty of ways you can still get your views out."
6.9.2009 5:08pm
DennisN (mail):
devil's advocate:

don't confuse Leiter and Blevins.


Oops. Whack me upside the head with a clue-by-four every now and then. ;-)

He said about Blevins in his update that Blevins should be proud to be exposed


We may carry our scars, even virtual ones, with pride. But it's kinda nice not to collect them at all. These day's I'd rather keep most of the napalm in the drum and avoid flame wars. This board is a pretty good example of how to do it.
6.9.2009 5:32pm
KWC (mail):
Conlaw2, Rosetta's Stones:

I understand your points, but you don't understand mine. Of course, they can disable comments. Just as Whelan can -- but shouldn't -- "out" anonymous bloggers.

And of course I have other forums in which I can express my views.

What I am saying, quite simply, is that it is unnecessary and mildly condescending to close a post for comments. I see no principled reason to do so. If unprincpled acts of condescension don't bother you, that's fine. They bother me; I was just expressing as much.
6.9.2009 5:48pm
Leo Marvin (mail):
A subtext of the outing was, in a momentary loss of control Whelan blew the cover on the nastiness he usually hides (poorly) behind a veil of civility. In other words, he outed himself. Some take it further as confirmation that conservatives as a group are nasty. And finally, you can replace "Whelan" and "conservatives" with "Leiter" and "liberals," rinse and repeat.

I do think there's a nasty streak running through the commentaries of both, but it jumps to conclusions to suggest that reveals much about the character of either. It may, but it may also just be their personae as advocates. As for the notion that this or any other week's bogeyman is representative of millions of people who generally share their politics, that's the kind of inductive silliness that makes too much of the blogosphere infomercial credible.

And not that a Whelan-Leiter comparison means anything just because they were both involved in outing controversies -- there are lawyers, academics and other bloggers of every stripe who make them look like Miss Manners -- but Whelan should send Leiter a nice thank you for publicly reviving his unflattering animosity for JA and EV while Whelan was at least apologizing to Publius. On both substance and style there's almost nothing I like in what I read from Ed Whelan, yet along comes Brian Leiter, with whom I agree on most matters of substance, and he manages to make Whelan look good. Beautiful.
6.9.2009 6:06pm
M N Ralph:

And why are comments disabled on Bernstein's Israel post? I find that utterly inexcusable. For whatever reason, from time to time, contributors to this blog decide that they don't want comments on their posts. I'll suggest that there is no good reason for doing that.


It's almost always a dead giveaway that the contributor knows his post is superficial or slanted, or he just wants to get in a cheap shot at a person or cause without facing criticism. The contributor is likely afraid that he'll be made to look foolish if the post is open to comments, which not so coincidentally happens most to the contributors who frequently close comments.
6.9.2009 6:12pm
rick.felt:
loki13:

I think you wasted a lot of time with that, and you didn't read carefully at all. I'm not trying to argue that anything was actionable. I was explaining in extremely general terms one reason why an anonymous attack on the President is not the same as an anonymous attack on a fairly prominent attorney.

I did not make any statements, express or implied, about the case law surrounding anonymous speech. Reading comprehension FAIL.

To sum up- what?

Yeah, exactly. It's fun to show off how much you know, but try thinking before jumping in.
6.9.2009 6:13pm
Desiderius:
Leo Marvin,

Hear, hear. I see this as something of a watershed for the blogosphere, as evidently enough sense made it through the partisan divide to persuade Whelan that it was in his interest to reconsider his actions. Given the evidence of this blog, perhaps even Leiter is not beyond such influences some day.

This is a good day.
6.9.2009 6:55pm
Desiderius:
Leo Marvin,

On a different note, is it any surprise that a blogosphere so dominated by lawyers is likely to influence its participants to act as advocates?

The adversarial model is in the DNA. Perhaps its not the worst one.
6.9.2009 6:57pm
Hank Gillette:
I'm sorry I took your virginity.
6.9.2009 8:06pm
devil's advocate (mail):
here, here, another thread that could have gone up in flames saved by the VVFD [ Volokh Volunteer Fire Dept.].

Leo,

I think that you found many people who agreed with Whelan on the substance of his criticisms of Sotomayer disagreeing with his temperament and/or actions -- including EV whose post purported by Publius to have "decimated" Whelan's work was really a subtle discussion of how to distinguish judicial activism and the elevation of judicial policymaking from potential benign or necessary considerations of effects in judging. So, I trust that you feel some sense of reciprocation vis-a-vis your analysis of Leiter's jumping in.

I am probably not with Leiter on substance, but I did read his entire 2005 organic post faulting academics like Cass Sunstein who argued against impeaching Bush. This post had some substance and reasonable points. While he was mostly calling to task fellow leftists for deserting what he saw as a vital cause, I felt that he spoke to all who had at least forborne in our military actions to account. I didn't find his arguments persuasive on balance, but they weren't irrational, unbearably polemical, or particularly ad hominem.

But let the least criticism sneak in and the guy went ballistic. I don't get it, but neither do I discount the possibility that he can be redeemed.

I think it may be a little bit of a stretch to suggest that when people react angrily it reveals the nastiness lurking always beneath the surface. Rather it reveals nastiness, but not whether it is the rule or exception.

Just to gauge what your measuring stick is, do you consider Rush Limbaugh nasty, or a polemicist or ? I'm no big fan of his but I don't consider him particularly out of bounds.

Brian
6.9.2009 8:23pm
Perseus (mail):
perhaps even Leiter is not beyond such influences some day.

When pigs fly.
6.9.2009 8:33pm
Just an Observer:
The relevance of disallowing blog comments, as far as the Publius-Whelan controversy is concerned, is that Publius typically posts on a blog that allows comments and Whelan posts on a blog that does not.

This is pertinent, I think, to the asymmetry that MarkField discussed above. I primarily relate to Whelan and Publius as bloggers. In this medium the cred of Whelan, like that of his fellow bloggers at NRO, is diminished to some degree because that venue disallows comments. By contrast, if one disagrees with Publius, one can make the argument directly at Obsidian Wings.
6.9.2009 8:33pm
Desiderius:
Perseus,

"When pigs fly."

Come to Cincinnati and I'll hook you up.

Admittedly, Leiter does have the smug superciliousness of a 19th Century prelate down pat, but even some of those prelates came around once reality smacked them upside the head.

In the better late than never department, it's probably not the best form to talk about someone without that someone being present to defend himself.
6.9.2009 8:53pm
loki13 (mail):
rick.felt,

That was an interesting response. While I clearly cut people slack when they throw around terms like "defamation" and "slander" since they are in common parlance outside of the legal community, I am a little less forgiving of people that seek to introduce actual legal terms (like actual malice) when making particularly bad analogies.

I posted the full relevant part of your analysis along with my response. I'll allow others to decide if my comprehension was, as you so pithily put it, a "[r]eading comprehension FAIL". Nevertheless, I recommend not using actual legal standards with "extremely general terms" that don't involve "case law" (whether or not involving anonymous speech). People reading legal blogs (some of whom might, you know, expect some intellectual rigor when terms of art like actual malice get thrown around with the grace of manhole covers) might get the wrong idea.
6.9.2009 9:21pm
Careless:
devil's advocate: please look up "cad" in the dictionary and understand why it is inappropriate for the people/disputes you are writing about.
6.10.2009 1:57am

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