Among other claims that struck me as odd in the most recent Down by Lawcast, the suggestion was made that anonymous speech (which I'm going to equate to pseudonymous speech for this entry) is limited in what it can do, that credibility is lacking, etc. This is an often-spouted view that has some appeal, but is ultimately wrong.
Let's start with a lesson in history and basic theory:
Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind. Persecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all.
The obnoxious press licensing law of England, which was also enforced on the Colonies, was due in part to the knowledge that exposure of the names of printers, writers and distributors would lessen the circulation of literature critical of the government. The old seditious libel cases in England show the lengths to which government had to go to find out who was responsible for books that were obnoxious to the rulers.
John Lilburne was whipped, pilloried, and fined for refusing to answer questions designed to get evidence to convict him or someone else for the secret distribution of books in England. Two Puritan Ministers, John Penry and John Udal, were sentenced to death on charges that they were responsible for writing, printing or publishing books.
Before the Revolutionary War colonial patriots frequently had to conceal their authorship or distribution of literature that easily could have brought down on them prosecutions by English-controlled courts. Along about that time, the Letters of Junius were written, and the identity of their author is unknown to this day. Even the Federalist Papers, written in favor of the adoption of our Constitution, were published under fictitious names.
It is plain that anonymity has sometimes been assumed for the most constructive purposes.
--
Talley v. California (1960) (paragraph breaks added)
"Don't underestimate the common man. People are intelligent enough to evaluate the source of an anonymous writing. They can see it is anonymous. They know it is anonymous. They can evaluate its anonymity along with its message, as long as they are permitted, as they must be, to read that message. And then, once they have done so, it is for them to decide what is `responsible', what is valuable, and what is truth."
--
McInteyre v. Ohio Elections Commission (1995), f.11 (quoting
New York v. Duryea).
Anonymous speech can be worthless, of course. But it can also move mountains.
The whole point of using anonymous speech is partly for protection against backlash, true, but in a less cynical description, one may describe the purpose as completely removing criticisms unrelated to the content. A true wordsmith, or believer in a worthy political cause, would want the focus to be on the content and not the speaker.
A signature, however, is irrelevant to content unless some type of expertise, inside knowledge, or personal experience is claimed. In the alternative, one may include a signature in order to gain regard for themselves or to try and bolster their credibility by attaching their name to it. In trying to build and use goodwill for his name, an author is ultimately engaging in a business move, but 95% of the time, the attachment of the name is irrelevant to the content therein.
Rather, attaching one's real name is an authorial decision as significant as any of the substantive content. It binds one's own personal characteristics with the speech and invites both
ad hominem attacks and for the listener to give more credence to the words by who's speaking them.
In other words, because this choice alters how most people perceive the speech, it's wrong that we
expect everyone to give their name to content before completely discrediting it, just as it's wrong to mandate that everyone say "God bless America" at the end of their speech. That reaction - to discredit anonymous speech when all other variables are equal - is driven by the power-elites who always want someone to hold accountable, to prevent whistle-blowers and others who want to speak truth without having their words unduly jeopardized, either by
ad hominem or by their own persecution (at which point the speaker becomes the issue and not the content of his words - see, e.g., the HUAC hearings as an example of this).
Of course such a view invites fringe lunatics to write anonymously, but as the judge noted above, readers are not stupid. If someone writes "buy Microsoft stock, will shoot up 200% tomorrow," no one would believe them, but that's not because it was anonymous, but rather because there's no grounds to believe what it says. The quote could be "Joe Hargish says to buy Microsoft stock, will shoot up 200% tomorrow" and the result would be the same. If it's "Joe Hargish, analyst at Goldman Sachs, says to buy Microsoft," now we have a grounds for credibility.
But the point is that a name is not the only grounds for credibility. You can also gain credibility by having incredibly rational arguments or by presenting a volume of verifiable facts. And a name isn't grounds for credibility itself. For example, let's say you read this:
Let me go to hell, that's all I ask, and go on cursing them there, and them look down and hear me, that might take some of the shine off their bliss.
And I tell you that Glen Beck said it on last night's show. Most people would discard it as rambling anger. But what if I told you Samuel Beckett actually wrote it. Now most people would probably think it's something literary, give a whole new meaning to "them." Anonymous speech wants to avoid this whole evaluative process.
In so-called "scamblogging," anonymous speech has been central to propagating the message. To my knowledge, only two hardcore "scambloggers" have been front and center with their real identities: Scott Bullock of the now-defunct Big Debt, Small Law and Kimber Russell, who, if I recall correctly, "came out" late summer or early fall of 2010. Nando at TTR neither hides his identity nor expressly posts it to the world, but it can be found fairly easily. Other than that (someone correct me if I'm wrong), the scambloggiest of scambloggers remain more or less unknown. Loyola2L, Esq. Never, JD Underdog, Exposing the Law School Scam, Fluster Clucked, Jobless Juris Doctor, "Angel" and "Hardknocks" at BIDER, Jobless Juris Doctor, and Knut at First Tier Toilet, I'm pretty sure these are all anonymous.
I will posit here that, contrary to what Kimber suggested, the scamblog movement only has had its successes because the latter group chose anonymity as a theme.
Law is notoriously elitist, tiered, and approached with a view that "I am better than that person." When people found out Scott Bullock was a Seton Hall graduate, the response was that he should have gone somewhere nicer. But such allegations can't hit someone like Jobless Juris Doctor without making a series of assumptions, and indeed the assumptions become more difficult when (a) the number of anonymous angry bloggers increases and (b) some of the bloggers, like Knut and Angel, claim to be first-tier graduates.
The anonymity thus gave a solidarity and an ambiguity about what class of people was being affected by the "scam," and because a broad range of personalities had been adversely affected by going to law school enough to make blogs about it, the shared claim - that law school is a losing investment - became more credible. You didn't need names to achieve that effect, which is clearly shown by the number of people who have been deterred from going to law school as a result of reading them. And that, after all, was the point.
This is precisely the type of situation that calls for anonymous speech as a powerful tool for change. And it
did bring change.
Law school applications dropped 12%. LSAT takers were down by a similar amount. For both of those, you generally prepare at least two or three months in advance. So anything influencing change needed to be present earlier, in November and December.
The much-ballyhooed New York Times article came out on January 8. But because early admission deadlines are generally December 1/15 or January 1, that can't have affected early admission, and the odds that people read an article and suddenly dropped applying to law school when they'd already done all the work seems remote.
Rather, that precipitous drop from the mid-2010 highs had to come from somewhere, and that "somewhere," seems, to me, to come from saturation of these blogs. Whether they have a name on them or not seems irrelevant, since blogs like TTR regularly link to news articles and connect them together with the common thesis: that law school is a losing investment.
If Kimber wants to believe that her 2-3 months of being "out" prior to the number of LSAT takers dropping had a disproportionate effect compared to her anonymous peers, I suppose she's free to do so even if there's no proof that such is true.
But looking at a simple causal chain, the only reason that administrators and other institutional players are willing to talk about change - including giving Kimber the time of day - is that law school applications and LSAT takers are down. If law schools were still pulling in customers at the click they were a year ago, it would be much easier for the ABA to say nothing was fundamentally wrong or in need of change. But because the "scambloggers" created awareness, which caused a drastic drop in customers, now everyone is all-too-willing to change. Law School Transparency was a decent idea, but it would have accomplished nothing without the angry anonymous crowd corroborating its claim and actually deterring people from applying for that $160k job track.
For Kimber to now claim that anonymous speech can't change things is disingenuous. It already has, and it will continue to do so. For if the law schools won't publish accurate data, the most believable perspective may actually come from the collective knowledge of anonymous bloggers, That, if given enough time, will cause actual law applicants to weigh the risks of going to law school where they would if they had accurate data from the schools themselves. And with that, the number of qualified applicants will continue to drop and law schools will be forced (by capitalism, a force greater than personal identity) to lower tuition, lower class sizes, or close. Likewise, USNWR is not changing anything because they got a pleasant phone call from a real person or because LST made a request; they're changing things because their integrity as a news magazine has been under under assault by their collusion with law schools' "Enron-like accounting standards." You can talk to them until they're blue in the face, but until their goodwill is jeopardized, there's no incentive whatsoever for them to do anything.
Those results can come about entirely from well-written, well-placed anonymous speech and it is simply wrong to claim otherwise. Anonymous speech helped convinced a nation to adopt our Constitution against considerable opposition. I think it can handle changing the law school structure and, in fact, it has.
