This article was published in OCPA's Perspective magazine. View Issue
An Oklahoma agency recently demanded the power to take away the free-speech and free-association rights of its political enemies. Like all who seek to take away others’ rights, it justified its power grab with specious appeals to the common good. While the attempt has been shelved for the time being, it will likely return in some form. Everyone who cares about real protection for free-speech rights should be watching this apparently esoteric case.
The Oklahoma Ethics Commission wanted the power to compel private groups to post their membership rolls online if they expressed an opinion on legislation. As a sinister cherry on top of the sundae, they didn’t just want names; they wanted to compel people to post home addresses and even their employers. This was needed, they said, to ensure transparency in public discourse about legislation. We need to know who is saying what, who is hiding behind the innocent-sounding names of groups that engage in free speech—and, apparently, we also need to know where they work and where they sleep.
The proposal was quietly set aside after public comment exposing its dangers, including expert testimony and an OCPA petition. But “set aside” does not mean “dropped forever,” and attempts of this kind are growing more frequent nationally. Some alternative form of the proposal is likely to emerge—if not at the ethics commission then possibly from some other agency, or a legislative proposal. The Tulsa World and a conga line of Oklahoma pundits and professional mean-wellers endorsed the proposal, after all.
This may seem like a small issue. But it strikes at what has always been a vital element of real freedom. From the authors of the Federalist Papers in the 1780s to the National Association for the Advancement of Colored People during the civil rights era, some groups have kept their memberships confidential in order to facilitate speech and civil activity. Call them shadowy cabals or secret societies if you like; there has never been a time when anonymous speech and confidential associations were not an important part of the rough and tumble of a free society.
I made a decision years ago that I would always use my real name in all my speech, even online, and be transparent about what I belong to and why. I wanted to make it easy for others to find and criticize my ideas. Sure, it’s embarrassing when people catch me making mistakes or bad arguments, but it helps me learn and grow.
But I’m a public intellectual. It’s my job to be held publicly responsible for what I say and join. I signed up for that and take paychecks for it. The risk of what might happen to me because I’m in the public eye is part of my job, just as the risk of a highway accident is part of a driver’s job.
Most people aren’t in that situation. If they’re going to participate in the public discourse and also keep their jobs, they often need anonymity. If they’re going to participate in civic activity, they often need to join groups confidentially. And even I don’t post my home address online.
Try posting the home address or the employer of another person on any of the major social media platforms. Your account will be swiftly disciplined—suspended or terminated. It’s called “doxing” and it’s a serious infraction of their terms of service. Social media companies police doxing more aggressively than almost any other offense.
The reason we need rules against doxing is obvious. People post this information for only one reason: to facilitate violence and harassment. I don’t have to shoot you or beat you. I don’t have to spread toxic lies about you that will make you unemployable. I don’t have to smear your little restaurant or shop so it will go under. Others do the dirty work. All I do is provide information about you, so the doers of dirty deeds can find you.
“There are few more toxic practices online than doxing,” wrote Lily Hay Newman in Wired in 2017. “It’s…deployed regularly and devastatingly as a means to harass and intimidate….Doxing is an effective tool for bad actors.”
But it’s different, of course, when the state does it. The state is never a “bad actor.” It only has the public good at heart. Everything the state does is rightly motivated, as is proven by the fact that the state did it. The state exists to enforce justice, therefore whatever the state does is justice.
Father State doxes you for the public good. And if you’re murdered, or you lose your career, or your business is destroyed, you can take comfort in knowing that you were sacrificed by Father State for the public good. After all, Father State loves his children, and he can’t make omelets to feed them without breaking a few eggs.
These days, we’re hearing a lot of irresponsible talk about limits on free speech. If you criticize someone’s ideas, or refuse to host their speech on your platform, before you’re done speaking they’re already wailing “stop taking away my freedom of speech!” But this is different. This is a real and dangerous threat to basic rights.
To understand the difference, it’s important to grasp that freedom of speech is closely connected to freedom of association (protected in the First Amendment as “the right of the people peaceably to assemble”). Your right to free speech includes the right to associate with groups you choose to associate with, and not associate with groups you do not choose to associate with.
"Father State loves his children, and he can’t make omelets to feed them without breaking a few eggs.”
That is why it isn’t necessarily a violation of your “free speech” if Twitter doesn’t let you post on their platform. Twitter has free-speech and free-association rights, too. (Of course, “Twitter” is not a real person, but the people who own Twitter are, and Twitter’s rights are their rights at one remove.) There are, admittedly, other issues involved in the complex world of online speech law. And of course if Twitter makes decisions we don’t like, we’re free to criticize those decisions. But the platforms still come to the table with rights that need to be respected in law.
One of the rights we all bring to the table is the right not to reveal membership in groups we create. The most relevant question here is not why a group wants to keep its membership secret. There are often very good reasons, but that’s beside the point. The relevant question is not why we want secrecy, but whether we have the right to it.
The phrase “right to privacy” has been much abused. But the Constitution does protect some privacy rights. Consider, for example, “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” This privacy right is a specific instance of a general rule that guides the American political and legal tradition on the question of where rights start and stop.
The United States has never adhered to the view, common in European liberalism since Kant, that people surrender all their natural rights when they enter civil society, and get civil rights in exchange. We hold Locke’s view, that although we do gain some civil rights in civil society, we also retain natural rights. We give the state the authority to resolve conflicts that arise as we use our natural rights, but not the authority to take those rights away.
Kantians can demand a liberal state, but can’t justify any hard limits on the scope of that state’s power. Lockeans can justify, and must demand, such limits. The right to privacy—secrecy—is a test of the difference. If you can’t speak anonymously or join confidentially, you have no zone of privacy, and the state has no limits.
It’s the same old story, century after century. Whoever is riding high on the political waves of the moment wants to grant themselves all the power they can, because of course they mean well and will use that power only for good. Anyone who wants to limit their power must be up to something nefarious. What are they hiding? If they were doing nothing wrong, they’d have nothing to fear.
But do those currently on top have any right to the power they seek? Will they continue to “mean well” after they have it—are they the sole exception to the otherwise universal rule that power corrupts? And what will happen when the current political waves crest, and new political waves rise, sweeping the people on the other side of the political spectrum into the positions of power now being built up?
Everyone who wants to take the ring of power always sees themselves as Frodo. They only take it because they have to. No one is ever Denethor, who thinks he wants freedom and justice, but really just wants more muscle for himself and his own people. Not to mention that even Frodo succumbed to the temptation of the ring in the end.