The Power of Anonymous Speech

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.

Supreme Tautologies 101

Yesterday, Justice Scalia gave an interview/lovefest at the Federalist Society's something-or-other, and had this to say about why he hires almost exclusively from the high and mighty Ivies:

He then reprised his somewhat controversial defense of elitism in law clerk hiring: “The best minds are going to the best law schools. They might not learn anything while they’re there [laughter], but they don’t get any dumber.”

(Note how Scalia did not use politically correct terminology. The PC approach calls for referring to the “highest ranked” law schools rather than the “best” law schools.)

As an initial matter, I respectfully disagree that law school can't make one dumber. It can, and it does.

But what is this basis for determining the "best" law schools? I suppose it's rankings, historical prestige, and alumni. Given his joke, it's not the quality of education (e.g. "Harvard can take a 160 LSAT and make him a better lawyer than Stetson."). He seems, without question, to be of a nature-over-nurture belief. That's fine; I am, too.

But if Justice Scalia believes in nature over all, doesn't that imply that the best schools are wherever the best students have gone previously? So wherever the best minds go are the best schools, and the best schools are wherever the best minds go? Can you be any more tautological?

Again, it's depressing to see a member of a body charged with rationally interpreting the law so sincerely flawed in its reasoning. Of course, I don't actually believe Justice Scalia is dumb or irrational. On the contrary, he's highly intelligent. I just think it's obvious that he's rationalizing his naked elitism in a rather puny attempt.

If you want to hire "the best minds," why not have some objective criteria that goes beyond the name of the school? Why not just go to LSAT scores? Why not give a generalized knowledge and intelligence test to anyone wanting to apply? Besides, if you're hiring from the pool of appellate clerks nationwide, you're already dealing with "the best minds" and you shouldn't have to use "Harvard" or "Yale" as a lazy-ass short-cut to weed the applicant pool.

I say all this because at my own top 100 school, there are approximately 10-15 people in each graduating class who are fully qualified to compete at any T-14 in the country. Approximately 8-10 of them could have gained admission out of undergrad (167+ LSAT, 3.5+ undergrad GPA). Why did they go TTT when they could have gone T-14?

First is full-tuition scholarship money and second is that you learn the same darned law at the TTT while being the faculty darling and being first in line for every opportunity the TTT has. Almost every TTT in the country pays to bring in these "ringers" to up their LSAT medians.

I'll fully admit that a school like Pepperdine is not as "good" of a law school as Cal or Stanford, mostly because the average student at either Cal or Stanford would mop the floor with the average student from Pepperdine. But there's no doubt in my mind the top students at Pepperdine would compete and possibly be the top students at Cal or Stanford, mostly because in terms of pre-law intellectual ability they were likely indistinguishable and the law schools really don't advance that innate intellectual ability Justice Scalia so craves.

This is not 1940 or even 1980. It is not Ivy-or-bust, either in undergraduate or in graduate school. Just as intelligent minds wind up in all sorts of undergraduate locations, bright people get lured into going to schools outside the T-14 for any number of reasons. In an age where the private T-14s cost 40k a year, it's completely plausible that a highly-intelligent student would choose a degree from a respectable lower-ranked school for $0 in tuition than take out $120k in debt. And there's evidence that this has been happening; one only need to note that the award winners at Moot Court and Trial Team competitions routinely come from lower-ranked schools. It's not like Georgetown or Wash U. send their chaff to these things. It's just that, now, the very top students at TTT would fit right in at a T-14 and possibly wind up at the top. Assuming that those students would finish lower at the higher-ranked schools is nothing more than baseless speculation based on elitist presumptions.

Perhaps if Justice Scalia were truly open to more objective criteria to discover "the best minds," he would have realized this a long time ago. Instead, he perpetuates his superstitious and elitist beliefs that best minds = best schools = best minds, perpetuating silly superstitions. It should go without lengthy explanation that irrationalities backing elitism that smacks in the face of promoting candidates on true merit is to the detriment of the entire legal system.

Your Honor, Who Are You Kidding?

I like to look for possible solutions here, ways to restore the stature attorneys once had, but it's hard to do so when the people at the very top of the legal field pyramid are out-of-touch with reality.

I have a lot of respect for Stephen Breyer. I disagree with him on a fundamental point of Constitutional interpretation, but overall I find that his opinions are well-written and backed by sound argument.

But this, to me, is laughable:

Breyer argued the court makes more decisions unanimously than in narrow 5-4 splits, and that media often oversimplify conflicts as left versus right.

“I don’t think it’s political. I don’t think there are politically-based decisions. I don’t think that people are sitting there thinking what’s good for anybody.”

Unless one limits the word "political" to being technically Republican or technically Democrat, these are outright lies. Granted, 85-90% of what the Supreme Court does is non-political, but that's not because the judges don't make politically-based decisions, it's because the decisions before them don't easily ally with recognizable political sides. Yeah, the Supreme Court has a lot of 8-1 or 9-0 opinions. So what?

Would a Republican and a Democrat decide the outcome in Burnham v. Superior Ct differently? Of course not; no one in the political sphere has any opinion on issues of personal jurisdiction. Are Republicans and Democrats going to differ over invalidating an obviously-overbroad infringement on First Amendment rights, as in U.S. v. Stevens? Not really.

But for better or worse (mostly worse), Supreme Court justices often have to make decisions or draw lines in a manner inseparable from the formation of political policy preferences. When one is asked, "what is the scope of government power/personal liberty x?" the answer inevitably coincides with one's own political views. Contrary to Marbury's discussion of leaving to politics to what is political, or our own Chief Justice's analogy to balls and strikes, it is plain as day that the modern Supreme Court is a political body. They may ground their decisions in methods of interpretation, but the fact that mainline political parties now adopt preferred methods of Constitutional interpretation should be all the proof one needs that the very of choosing a method of interpretation is a political act in and of itself.

Legal realist theories have been around for over sixty or seventy years. Nothing that has happened in the mean time has diminished their relevance. It is impossible to read the 4th and 5th-amendment line of cases from the 60s-present without seeing a clear division based on policy preferences. Or gun rights cases, like McDonald v. Chicago. Or the abortion cases. Or the affirmative action cases. Or Citizens United. Or Bush v. Gore, which directly contradicted the stated Constitutional preferences of those in the majority.

Notice how when there's actually a political issue before the court and the nation's major political sects line up on opposite sides, the Court neatly does the same thing? You'd really have to be out to lunch if you think that's just a coincidence based on pre-existing legal philosophies.

And yet Stephen Breyer, Harvard and Oxford graduate, apparently doesn't "think there are politically-based decisions."

My guess is that he said so either for his own psychological sake (i.e., to bring the Court's actions in line with his legal training and beliefs) or because he wanted to protect the Court's integrity to the public (i.e., because courts in general are supposed to be neutral, they should give the appearance of neutrality).

In either event, it's misguided. Blatantly lying - or making continual feeble attempts to lie - damages the integrity of the Court far more than making decisions based on policy preferences. No one seriously equates the Supreme Court with their local trial court, nor should they. The political nature of the former has nothing to do with the integrity of the latter. Most people acknowledge the Supreme Court as a political body and have for quite some time.

This isn't to say there's no difference between law and politics. There undoubtedly is. But upholding that difference is not the same as claiming " I don’t think that people are sitting there thinking what’s good for anybody." They very clearly are, and, like the puppet-masters in the old USSR, denying a self-evident truth brings no dignity to the office or respect from the average citizen.

If we want the law to be a dignified profession, perhaps we should start by being honest.

What's the Big Deal with SUCOLitis?

For non-lawyers, lawyers have a perception of being horribly unfunny, stuffy, alien, etc. In other words, lawyer jokes are much, much funnier than jokes told amongst lawyers. First-year law students regularly laugh at things that are not, under any objective standard, funny (reasonable person jokes, blackacre jokes, etc.), and the level of humor does not improve much from there. To wit, from Skilling v. United States' oral arguments:

MR. SRINIVASAN: In the Martha Stewart case, for example . . . the only reason you needed an extended voir dire was because of the celebrity status of the defendant. You didn't have the deep-seated community passion and prejudice that characterized the Houston venue in this case. So, I think it's not at all unusual to have that kind of extended voir dire, and, in fact, we would say it's absolutely necessary to assure that the defendant receives the fair and impartial jury to which he's entitled.

JUSTICE SCALIA: So either this was too little or Martha Stewart's was too much?
(Laughter.)

Or this, from Florida v. Powell's oral arguments:

MS. BRUECKHEIMER: ...[the Florida S.C.] starts out talking about Traylor and our constitution at the beginning, and they . . . never say that -- that our constitution isn't insignificant or that it's not important. If they did, they wouldn't have felt the need to cite Traylor.

JUSTICE GINSBURG: I think you would have had a much weightier argument if it hadn't been for Michigan v. Long. If you could have said --

MS. BRUECKHEIMER: It -- it would have been nice.
(Laughter.)

JUSTICE GINSBURG: We could have then remanded to ask the Florida Supreme Court: Was it independently ruling under its constitution?

MS. BRUECKHEIMER: I -- I will keep that in mind.
(Laughter.)

For the non-legal-minded reading this, these snippets are as unfunny to you as they should be. You're not missing anything. Incidentally, both of these were criminal cases where the "laughter" moments came during the criminal defendant's turn to argue, both of whom more or less lost. I'm sure if you did a widespread correlation of "laughter" moments, you'd see similar patterns, but I digress.

The real reason for this entry is the satirical blog SUCOLitis. Although it is now been taken down, SUCOLitis purported to be an Onion-style blog concerning the goings-on at second/third-tier Syracuse College of Law. It was ostensibly run by a group of 2Ls and 3Ls, but for the time being school administrators are apparently investigating 2L Len Audaer for "harassment." Syracuse considers this a violation of their honor code based on "complaints from un-named students."

I understand fully that as a private institution* punishing a student, Syracuse's actions have no First or Sixth Amendment issues. But for the love of Johnny Marshall, if you're going to be an institution instilling students with legal ethics and respect for the Constitution that keeps some of us employed, maybe - and perhaps this is just me - but maybe you could respect the values behind Freedom of Speech or the Confrontation Clause? Perhaps you could not punish someone on anonymous tips for expressing themselves in an outside forum?

More importantly, maybe you could allow your students to try having a sense of humor. Although I can't access the blog currently, these are some of the titles I can find in archived items:

• Beer Bong Elected 2L President in Recall Election
• Senate President Elected SU's Sexiest Semite
• New Chipotle Praised for Spike in 3L Employment
• Class of 2013 Named Most Attractive In History

Brilliant, Swiftian satire? Aside from the 3rd one, no, but who can blame them given the Supreme Court's feeble attempts? In good taste? Of course not, but what satire is?

But what in the hell is the problem here? Oh, yes, because it's "bullying" just like that which leads gays and lesbian teenagers to kill themselves.

Dear heavens. This is exactly the type of behavior people make fun of lawyers for. If we expect law students to go out into the world and be social and political leaders, god willing, they're going to have to deal with indecent satirists. If we expect lawyers to interact with their clients like real people instead of greedy trolls who crawl out from under bridges when there's a remedy to be had, we should encourage this sort of creative outlet. My opinion of Syracuse went up as a result of the blog and down as a result of the backlash. I can't imagine I'm in the minority of Americans on that front.

If individual students are having their reputations harmed, they have a remedy in the civil courts with a plethora of defamation and modern privacy claims** - and possibly with the school's disciplinary body. But anonymous complaints of generic offensiveness? That's cause for Syracuse to investigate a wordpress blog? Really?

No wonder lawyers are miserable. Our institutions are set up to warp their senses of humor away from genuine attempts at satire and towards finding lifeless Supreme Court banter worthy of laughter.

*It's rather curious that institutions like Syracuse Law are still considered "private" when the overwhelming portion of their income comes from federally-backed loans to pay exorbitant tuition fees, most of which will be eaten by federal taxpayers. Differentiating between public and private law schools on this point is little more than an exercise in semantics, but hey, isn't that much of law?

**...which in turn may employ Syracuse alums. By acting and sending a highly-paid professor on a goose chase to investigate this kid and shut down the blog, Syracuse may have prevented legitimate legal work from developing that may help graduate solo practitioners trying to pay off their debts. Is it really smart of a law school to go out of its way to reduce demand for legal services? I think not.