Children and child advocates must deal with a very different First Amendment world than did our forefathers. They had the Village Green. They almost always knew who was speaking. Even the anonymous anti-British pamphleteers could encounter a responding pamphlet. In general, America has allowed those who are criticized to respond close in time to the same audience. In later times, concealed speakers making anonymous claims were limited in their access to mass media by professional journalists who insisted on a second independent source if someone wanted to hide, and letters to the editor quickly juxtaposed in editorial pages with some variety of viewpoint. And rules of libel gave false accusers pause. But the Internet is very different. And its differences affect children directly in terms of bullying and privacy, and the political efficacy of the child advocates who represent them.
The Internet goes into our homes. Its messages go to listserves chosen by the sender and likely not entirely known by the accused subject of the message. Or the postings are accessible based on search engines of Google and other private corporations. And the Internet service providers have won a major concession from the Congress – they are absolutely immune from libel. Accordingly, they rank and disseminate anonymous libel with impunity. And their messages cannot be easily answered per the assumption of “free speech interchange to ascertain the truth.” Far from it. You do not know who got the message. Anyone receiving it can transmit it to others and then to others. Even the search engines rarely allow a response to be juxtaposed so it is accessible to those seeing the accusation. And it gets worse. Because the concealed speaker can post multiple messages all from purportedly different sources. And the messages stay there…sometimes accessible by search engines at the very top, for years.
The implications of all of this for child bullying and suicide are well known to those of us who represent children. But it goes beyond direct abuse and affects basic political/ethical standards. For wealthy corporations, after Citizens United, are largely “persons” with First Amendment rights. Concealment of the speaker has some limited First Amendment value where a whistleblower is speaking truth to power, truth that feared retaliation would prevent from utterance. But that is actually a fairly narrow First Amendment circumstance, one most advantageously addressed by statutes (now in a majority of the states) that inhibit employer sanctions or litigation to punish someone who blows the whistle. And those important protections apply whether the speaker is courageous enough to announce himself, or whose identity is known already by the accused – as is often the case.
As noted, sometimes concealment can serve a First Amendment purpose, but the underlying value in knowing who is talking is entitled to relatively high priority in the hierarchy of free speech valuation. That identification means that the audience knows who is talking, and can accordingly decide whether they want to listen or read – a rather significant right in a world of message barrages. Perhaps more important, it allows the audience to weigh bias and expertise. It improves the ascertainment of truth, a First Amendment purpose. And the accountability that public disclosure provides discourages the bullying that we have seen increase exponentially over the past decade, as well as privacy incursions and false accusations generally.
Apart from the discouragement of child abuse, speaker identification also performs a critical function on the political front. Historically, political reformers have advocated for transparency. We want to know who is providing our political messaging. We want to know who is funding it. We want to know campaigners, and campaign contributors. We want to know who is lobbying, who they represent and the subject matter of their attempted influence. Here is the fact many of my colleagues have not fully absorbed: Much of all of this is now taking place on the Internet. Regrettably, Public Citizen, otherwise an admirable advocate for consumer rights, inconsistently backs “concealment of the speaker.” It backs the so-called Dendrite rule that posits “concealment” itself as a constitutional right – one that requires a federal court order making multiple separate findings to overcome, including that the posting be actionable “libel.” Of course, in the political sphere, the leading Supreme Court decision (NY Times v. Sullivan) requires for such libel that the speaker have actual knowledge of falsity (or be in reckless disregard) – rather impossible to allege when you do not know who the speaker is. The Dendrite approach benefits very few whistleblowers but has momentous collateral consequences. Indeed, the vast majority of those interested in hiding their identity are doing it because if the audience is so informed (be they the Koch brothers or an oil company or someone with an obvious grudge) their messaging potency will be reduced. And they seek concealment precisely because transparency and accurate information inhibits deception efficacy.
The denigration of the audience’s right to know who is talking (and who is financially behind the talker) necessarily occurs with the overly broad elevation of “concealment” itself as a First Amendment right. And it has implications for any statutory or rulemaking effort to require speaker identification of himself and his financial stake/backers – for any such requirement then must be a “compelling state interest” to limit this “concealment” right, and any such limitation must be narrowly tailored. In practical terms, this will mean that effective disclosure obligations will be impossible to enact or adopt. Where concealment itself is so elevated, it necessarily remains effectively inviolate – except for very narrow allowable disclosures. For example, requiring disclosure of campaign messaging may be allowed for the period (only) just before an election. It would interfere with the primal “concealment right” that some have elevated, to abridge it to any degree beyond a clear “compelling state interest to do so” and even there, only where there are “no less restrictive” means of accomplishment and where it is narrowly tailored to achieve that state interest. There are many examples of how this fundamental rule of Constitutional interpretation will hamstring transparency and allow special interests to hide with effective impunity. For example, concealment of Internet lobbying sources will be protected so long as the message “does not urge a particular vote.”
These are but several of the many expected “narrow tailoring” limits required for any restriction on a First Amendment (Fundamental Liberty Interest) right. Declaring such a right as occupying the First Amendment Liberty Interest – necessarily triggers this regime of “strict scrutiny” of any limitation to it under Constitutional Law doctrine. And the irony here is that when concealment itself is elevated to that Fundamental Liberty Interest status, it necessarily supersedes the contrary free speech right to know who is talking. Concealment may then be limited (or disclosure compelled) only sparingly. Instead of promoting disclosure as the primary First Amendment-serving value, and concealment as one that may be allowed as a compelling state interest where retaliation or other factors commend it, the Dendrite rule reverses the ranking. Indeed, an approach preferable to such a perverse hierarchy would posit concealment and disclosure as, at the least, co-equal First Amendment elements and allow a more equitable balance.
The “concealment as paramount” rule of law will not only prevent school rules to discourage anonymous accusations about who 14-year-old Dolores is sleeping with, but will on the larger political front prevent statutes and rules to let the electorate know who (or which corporation operating now as a “person”) is publishing an attack. Those promoting concealment out of sympathy for “whistleblowers” do not appreciate the reality that when we conceal, we do not know they are innocent angels. They can be anyone. The whole point behind concealment is that we allow it to be anyone. We do not know, and we hobble ourselves to preclude us from knowing, by the presumption that concealment is the Free Speech rule unless a high burden is met. And, as noted, that burden is often catch-22 precluded (e.g., if you knew who it was you could show actual knowledge of falsity to qualify as libel or meet the other Dendrite tests, but you do not, so you cannot).
We do not know that the speaker is accurate, and do not know his often profound economic or personal bias. Political accusations commonly denigrate those who support a child safety net or medical coverage or any other public policy not consonant with short-term corporate profit considerations. Many of those with such an economic bias will gladly assure each other that they are the whistleblowers, seeking to stop socialism or domination by the “moochers.” More relevant, those behind some of this messaging and influence know that were their identity to be disclosed, it would undermine message efficacy precisely because the electorate will discount the speaker, knowing his identity and economic interest. Increasingly, the public lacks that information – knowledge essential to transparency and democratic efficacy. The balance between influence of the body politic by those with an immediate profit-stake and those of us who necessarily represent the diffuse and long term interests of children, is much affected negatively by policies that favor speaker concealment.