Transparency, Anonymity, and Moral Courage

In my recent blog post on Maricopa County, I referred to the problem of harassment and intimidation by government officials against other government officials and employees. I have also referred in the past to the even more serious problem of harassment, intimidation, and ad hominem attacks by government officials against citizens. There is a new sort of fear in politics, the fear of disclosure of political beliefs, and the harassment and intimidation (usually anonymous) that this can lead to. The occasion for consideration of this sort of harassment is the Supreme Court's decision on Friday, Doe v. Reed, concerning disclosure of the names of those who signed the Washington state petition for a referendum on the rights of same-sex domestic partners.

Dalia Lithwick has an excellent piece in Slate about this issue.

The issue was also raised with respect to televising a court case involving Proposition 8 in California, because witnesses in favor of the proposition were afraid of harassment, professional retaliation, and death threats. Their argument was accepted in a 5-4 U.S. Supreme Court decision, despite the fact that, as Justice Breyer pointed out, these witnesses had already appeared on TV and internet broadcasts related to the topic.

Doe v. Reed
The court in Doe v. Reed balanced the first amendment rights of those signing the petition against the various governmental interests involved in transparency. Only two justices in a very split case (opinion-wise, that is; it was an 8-1 split on the basic decision) mentioned the right of privacy, Alito concurring and Thomas dissenting.

The plurality decision written by Chief Justice Roberts refers to the famous case of Buckley v. Valeo, 424 U. S. 1, 74 (1976):  "we have explained that those resisting disclosure can prevail under the First Amendment if they can show 'a reasonable probability that the compelled disclosure [of personal information] will subject them to threats, harassment, or reprisals from either Government officials or private parties.'" The "personal information" in that case was the names of contributors to a party.

Transparency vs. Anonymity
The ironic fact central to the current debate is that in a case that opts for disclosure (transparency) the biggest problem is the anonymity (the lack of transparency) of harassment on the internet and harassment following on disclosure of information on the internet. Yes, in the old days, people could have gotten hold of the names of people who signed a petition or gave to a candidate they didn't like, and used that information to make harassing calls. But in the internet era, such anonymous harassment is far easier and therefore far more common.

Moral Courage
Justice Scalia said in the oral argument for Doe v. Reed, "you can't run a democracy this way, with everybody being afraid of having his political positions known." And in his concurring decision, he wrote, "There are laws against threats and intimidation; and harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self-governance. Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed. For my part, I do not look forward to a society which, thanks to the Supreme Court, campaigns anonymously (McIntyre) and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave."

No other justice used the word "courage" in his or her opinion, but that really is what it comes down to. A world where political participation is anonymous is very much like the world of high finance:  few act ethically, individuals don't take risks, and the whole society loses.

Courage is at the center of ethical conduct. As I wrote in a review of Rushworth Kidder's book Moral Courage, "Moral courage's principal purpose is to take values from the theoretical to the practical, from thought to action. Without moral courage, an official will not act on his or her values."

At the heart of much unethical conduct by government officials is the lack of moral courage of individuals in power as well as of individuals afraid to speak truth to power.

Standing Up to the Fear of Retaliation
Anonymous voting is important, but anonymous contributing, petition signing, and public commenting are far more problematic.

Yes, there are some people who will not give to a candidate opposing an incumbent, or to an opposition party, because they are afraid of the consequences. But it is exactly this fear that is the principal reason why they should work hard to get rid of the incumbent. If people are afraid of contributing to any candidate (or afraid of failing to contribute to the incumbent), something is seriously wrong, and everyone should know about it. Think what effect on an election there would be if a hundred people afraid to oppose an incumbent took out an ad or signed an open letter stating the fact that their city had an ethical environment characterized by such intimidation!

We can't let anyone intimidate us into silence. If those with a view about an issue resort to harassment, it must be emphasized that they are effectively admitting that they can't make a reasonable argument and that they are people without sufficient ethics to be respected.

But to assume that there will be harassment, that it will undermine our democracy, and that nothing can be done about it, is to give up, to show not only a lack of moral courage, but also a lack of appreciation of the strength of our democracy and of our will to preserve it in the face of anonymous harassment.

The best thing that can be done about anonymous harassment and nasty online writing is for everyone who believes it's wrong to stand up to it, to mock it, and to make it clear that it undermines an argument and that responses to it will not be made. In short, delegitimize it. Every person who fails to do this is effectively letting intimidation win the battle for control of our democracy. The way to preserve open democratic participation is to practice it.

I had a blog dealing with my town government, which was effectively taken over by nasty anonymous commenters. I did not want to discriminate against those who disagreed with my view and personally (usually falsely) attacked me, and that was a mistake. From the beginning, I should have insisted that every comment be signed or it wouldn't be published. I would certainly do that here if anonymous attacks became a problem.

I understand the argument that some people resort to anonymity because they are afraid of retaliation. But they are only afraid of retaliation because they and millions of others remain silent about their fear. To go anonymous is not the answer, and certainly to harass and to viciously and often falsely attack others is certainly not acceptable no matter how much fear there might be.