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June 07, 2009

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He had no reason to do this, other than pique.

Ah, but there's another dimension to Failin' Ed Whelan's act. Remember, Failin' Ed was a conservative dealing with a liberal, so their interaction falls under Rule 7: If you can't think of anything positive to do, do something that will piss off liberals. Being outed would piss off publius, so that's what Failin' Ed did.

In addition, the whole disingenuous business about what constitutes an "obligation," coming from someone who purports to be an ethics expert is just ... bizarre.

Exactly.

Look, it's easy enough to 'out' most internet pseudonymous personas; the only compelling reason (absent some criminal behavior) to do so is to be an unethical thug. It's the equivalent of being a peeping tom.

Folks like Franklin, Hamilton, Madison, Jay and a host of others published pseudonymously. They did so for a number of reasons but one was the liklihood that foes would commit violence and retribution for those voicing opposing opinions.

I don't think it's bullying. It strikes me more as a spontaneous act of childish petulance which Whelan is now trying weakly to justify with all sorts of ex post facto rationalisations, like any immature person caught out in an act of petty spite. And he even has the gall to deplore the publication of his schoolboy 'idiot and coward' name-calling on the grounds his email was 'private'! So it seems that in his peculiar moral universe he has the right to decide what is private and what is fit for publication, but he declines to extend the same right to others.

I do care that Publius has been "outed," but for selfish reasons I am glad to know who he is. I read him because he makes a lot of sense. Now, I will pay special attention to his legal writings.

As for Hizoy, my wife and I have read books by her mother, and I have enjoyed Hilzoy's posts.

To everyone on Obsidian wings, keep making sense.

From Ed Whelan, President of the Ethics and Public Policy Center:

". . . I don’t see why anyone else has any obligation to respect the blogger’s self-serving decision."

Apparently, the Ethics and Public Policy Center eschews the deontological branch of ethical theory.

It seems to me that this argument is just a smaller part of the broader left/right argument about privacy. The left sees privacy as a right that should be protected unless there's a compelling argument in favor of disclosure. The right sees privacy as a way of hiding wrongdoing that should only be protected when there's a compelling argument against disclosure. That's why Whelan's argument boils down to the old saw "if you're not doing anything wrong, what do you have to hide?"

That's http://volokh.com/posts/1244411084.shtml (in case Typepad decides to eat the link later).

That's rich. Whelan disparages publius for making a "private e-mail" calling him names, public.

No mention of the fact that HE made the contents of the first two e-mails public himself:

I e-mailed Blevins to ask him to confirm or deny that he is publius, and I copied the e-mail to the separate e-mail address, under the pseudonym “Edward Winkleman,” that publius used to respond to my initial private complaints about his reckless blogging. In response, I received from “Edward Winkleman” an e-mail stating that he is “not commenting on [his] identity” and that he writes under a pseudonym “[f]or a variety of private, family, and professional reasons.”

I won't give him the hits by linking to his first post, where this appears, but it's easy enough to find.

Oh, I love this comment, at Volokh:

So publius is now Blevins, and Whelan is still Whelan.

Blevins has the better of that deal.

"So publius is now Blevins, and Whelan is still Whelan.
Blevins has the better of that deal."

That's why Whelan is so unhappy; and so he should be.

So publius is now Blevins, and Whelan is still Whelan.
Blevins has the better of that deal.

And after the Temple went down, the Romans were still the Romans, and the Jews the Jews, massacred and dispersed, but still with the moral highround. Hallelujsh. (And who won in the lon run)

The powerful will very often let the defeated have these small comforts. I mostly find it pathetic.

Great post, hilzoy.

I think it's also worth noting that the long-term consequences of this act are likely to be the silencing of other bloggers who may have even greater reasons than Publius for remaining pseudonymous. Bloggers who are in positions of far less privilege and security than a law professor at a major university, and who would face considerable risk to finances or personal safety if their identities were exposed.

Those are the voices that the non-hierarchical nature of the internet is allowing us to hear speaking on issues of public importance--and those are the voices that will be silenced by this sort of tactic.

It seems to me that this argument is just a smaller part of the broader left/right argument about privacy. The left sees privacy as a right that should be protected unless there's a compelling argument in favor of disclosure. The right sees privacy as a way of hiding wrongdoing that should only be protected when there's a compelling argument against disclosure. That's why Whelan's argument boils down to the old saw "if you're not doing anything wrong, what do you have to hide?"

I'm not sure I buy this. In part, that's because I don't think Whelan was acting nearly rational enough to be applying a principle like you describe: he wanted to hurt publius and he had no scruples, so he outed him. If a pseudonymous conservative blogger was outed, I wouldn't be surprised if Whelan criticized that outing. Having principles one disagrees with is different from having no principles, or at least no principles beyond 'anything I do is correct'.

I'm really wary of tarring all conservatives with Whelan's actions. Now, to the extent that he acted unethically on NR's site and NR hasn't done anything response, I think NR comes out of this episode looking pretty shameful, but that doesn't tell me anything I didn't already know.

The left sees privacy as a right that should be protected unless there's a compelling argument in favor of disclosure. The right sees privacy as a way of hiding wrongdoing that should only be protected when there's a compelling argument against disclosure.

I wish that this were the case, but, amongst other examples, 12 years of Labour government have destroyed any illusions one might have had, that people on the left/liberal side of the political spectrum honour the right to privacy more than others.

They did so for a number of reasons but one was the likelihood that foes would commit violence and retribution for those voicing opposing opinions.

So other than the level of "violence" involved, how is this different on the Internet today?

Going by the occasional troll-response on publius' other threads, the notion (at least on the Right, anyway) seems to that a blogger's "real" identity ought to be open and public: but only so that they can be harassed in their personal and professional lives offline.

How civilized.

I don't see this as a left/right issue, but as a decent person/bully issue. That's why it would surprise me if, say, Feddie ever outs someone, absent a very compelling reason.

Andrew Sullivan is trying to get into the act and pit other bloggers against you. I have no problem with a guy if he will willing to stand up for his views face-to-face. But I have no time for sleazy whimps like Sullivan who cowardly try to stage battles between other people because they are spineless slime.

Has anyone commented on one aspect of Whalen's cowardice? He was attacked by three people, Eugene Volokh (a libertarian/conservative), Anonymous Liberal (who basically riffed off of Volokh's demolition of Whalen's arguments, with a few personal additions -- respectful but hardly complimentary) and Publius, who basically linked with and agreed with the first two.

He couldn't attack Volokh for 'anonymity' because he isn't. All he could do was try and refute Volokh's arguments. (But, as several people have pointed out, Whalen's own experience made it practically certain he knew how weak his argument was. As a SCOTUS clerk -- as was Volokh -- he knew what the Court actually does, and that Sotomayor, in fact, has more of a reputation as a 'pure legal technician' than had any of the other justices.)

He could, I am sure, have found out who A.L. was, and published his name. Of course, since A.L. is currently a practicisng attorney with real clients, at a large firm, I can see how rapidly the firm would sue Whalen if they lost one client because of his 'revelation.'

So he picks on Publius, 'merely' a Professor. (Did he think your college didn't know, or that he would stir up the parents of students to protest? Whatever, he knew his liability was pretty small.)

Whalen = coward.

I'm still not 100% sure where I stand on pseudonymous blogging, but the strongest argument in favor is a compelling one: it takes the focus off the author and puts the focus on the ideas presented. The piece isn't automatically granted credibility because it's appearing in the NYT or is written by a prominent statesman or academian; it stands or fails on its own merits. Ed Whelan seems pissed because it's so often the latter for him.

"He had no reason to do this, other than pique."

On the contrary, he's letting people know that it can be personally costly to disagree with him. This is one way conservatives keep public discourse conservative.

On the contrary, he's letting people know that it can be personally costly to disagree with him. This is one way conservatives keep public discourse conservative.

Most likely because their preferred method of dealing with disagreement - i.e., dueling - is somewhat discouraged nowadays.

I'm not sure I buy this. In part, that's because I don't think Whelan was acting nearly rational enough to be applying a principle like you describe: he wanted to hurt publius and he had no scruples, so he outed him.

I guess I'm thinking more about his post hoc rationalization for why it was OK to out him rather than his initial motives in doing so. Those rationalizations certainly seem to have the standard "what do you have to hide" at their core. And I'm not sure that "no scruples" is exactly correct. If you genuinely don't believe in a right to pseudonymity in the first place, then violating it is a sign of disrespect rather than unscrupulousness.

I don't see this as a left/right issue, but as a decent person/bully issue. That's why it would surprise me if, say, Feddie ever outs someone, absent a very compelling reason.

There are probably some overlapping reasons involved. Somebody may believe that there's no inherent right to privacy but still be reluctant to violate another's privacy without a good reason, and somebody who does believe in a right to privacy might lash out and violate it in a fit of pique. But I think that it's going to be a lot easier to violate somebody's privacy if you start with the attitude that asserting privacy is prima facie evidence of wrongdoing rather than a simple desire to be left alone.

jim: "it takes the focus off the author and puts the focus on the ideas presented."

This is another reason I like having a pseud: I never wanted any extraneous facts about me to affect any view anyone might have of what I wrote.

I mean: there are zillions of reasons why someone might want to blog under a pseud. I'm not deeply attached to mine (as my not that huge response to being outed might indicate), but I hate it when people assume they know what those reasons are.

And let's not even get into G'Kar and his reasons for moving to pseud-hood...

@9:09-
In fairness to Andrew Sullivan, he is doing no such thing. His post on this episode lays into Whelen (here: http://andrewsullivan.theatlantic.com/the_daily_dish/2009/06/classy-ed-whelan.html). Are you referring to another blogger?

Roger: you wrote

Andrew Sullivan is trying to get into the act and pit other bloggers against you. I have no problem with a guy if he will willing to stand up for his views face-to-face. But I have no time for sleazy whimps like Sullivan who cowardly try to stage battles between other people because they are spineless slime.
The only relevant Andrew Sullivan post I've seen is this short one, which I will post below in its entirety except that I have substituted "[Whelan]" for its first two words and that I haven't bothered with its hyperlink to Steve Benen's post on the matter:
[Whelan] acts as a kind of distillation of far right rigidity. He will target others mercilessly if they dare criticize his hackish Hannityesque legal screeds. And if anyone dares imply that a member of Bush's torture-authorizing OLC, who refuses to say what his position on waterboarding, could be, you know, in favor of torture, he goes ape-shit.
Now, I'm not usually in the position of defending Andrew Sullivan, because in fact I have a very low opinion of the man based on some of his past actions and his refusal to take responsibility for them, although he is definitely a very talented blogger and he has in recent years mostly held positions congruent with my own. But unless there's some other comment of his that I'm unaware of, you seem to have greatly wronged him in this instance.

-- -- --

Turb:

Now, to the extent that he acted unethically on NR's site and NR hasn't done anything response, I think NR comes out of this episode looking pretty shameful, but that doesn't tell me anything I didn't already know.
One thing I find grimly amusing (along with the general notion that National Review, which manages to have an incredibly racist image and Jonah "Liberal Fascism" Goldberg on its current cover, has any credibility) is that Jonathan Adler starts his post on the subject, which I found from KC's comment upthread, by identifying himself as Whelan's co-blogger at The Bench - but has not (yet) posted his views on the controversy there (he did post a link to them on the Corner).

Maybe Adler didn't want to go too far in contradicting Whelan's position.

I am really, really itching for someone to explain the pervasive confusion between "pseudonymity" and "anonymity", e.g. over at the Volokh post and its comments. Why is this distinction so hard to understand?

Different assumptions about privacy are not so much a right/left distinction, but a privileged/not-so-privileged one. Of course, being privileged or higher on a hierarchy tends to make people want to keep that status (and other people's lower status), which is one definition of conservativism, so there may be a secondary effect. But I've certainly seen some powerful leftists be anti-pseud.

The Harvard-Harvard-Scalia pedigree, we have now been warned. (It's an argument for the taxation of university endowments.) We also know something both important and cautionary about the Whelan brand. This is Ed the Third. I guess they get classier with each generation.

It must be really tough to watch Sotomayor about to get that precious SCOTUS post. (A Puerto Rican cleaning lady!) There are only 4 or 5 appointments in a generation. Ed Whelan has made such compromises, such a descent into hackery, to prove he is a team player. (She doesn't deserve it!) I think it really put him over the edge. (Whatever it takes. Remember Harriet Miers.)

The notion that a blogger is always irresponsible if not identified by name, or that a blogger's ideas should never be taken seriously unless attached to his or her actual name, is ludicrous.

As a lawyer with a master's degree in religion (and some philosophy thrown in), I look to hilzoy and publius for thoughtful, intelligent commentary and depth of analysis. When hilzoy was "outed," the credentials made sense, but I had already made the judgment long before that this was a writer worth reading. I'm interested in what you think, not in what you do everyday or where you live. Same for publius now.

These juvenile and pathetic attacks only demonstrate how very insightful and compelling you are.

My spidey sense gets tingly when I think about our new psuedonymous friends when I read this POS from Michael Krauss. Key quote:

We have the moral (not legal -- I'm making no argument here about legislating any of this) right to confront our virtual accusers when they confront us, I think. Ed Whelan was deprived of that right until someone (who? I have no idea, but that would be an interesting story) had enough and removed [Publius'] hood. (emp mine)

I am really, really itching for someone to explain the pervasive confusion between "pseudonymity" and "anonymity"...Why is this distinction so hard to understand?

To say nothing of Whelan's bizarre claim (quoted by hilzoy above) that he "expose[d] [publius's] pseudonymous blogging."

That publius was blogging under a pseudonym was, I think, quite obvious to all. And anyone prone to draw negative conclusions based on that fact could have done so without any further information.

What Whelan exposed was publius's identity.

Again, this distinction doesn't seem that hard to understand.

Oh for heaven's sake, Ben. Whelan's behavior was clearly and undeniably scummy, adding a lack of civility and decency to the retrograde ideas you'd expect from someone who'd clerk for Scalia, work at the early Bush OLC, and write for the National Review. But he's not illiterate, or even particularly careless in the phrasing of his bile, and he is perfectly accurate when in his post he writes that he exposed Blevins's pseudonymous blogging.

There are now at least two comments in these threads taking issue with Whelan's statement that he exposed [publius]'s blogging, and the only explanation I can see for these comments is that they are going off of a version of Whelan's claim in which some other commenter kindly but misleadingly replaced Publius's real-life name with his pseud (as, indeed, I do in this very paragraph, because it is not normally my inclination to write the real names of people who prefer to stick with their pseudonyms, even in a thread that starts with the revelation).

I think it's also worth noting that the long-term consequences of this act are likely to be the silencing of other bloggers who may have even greater reasons than Publius for remaining pseudonymous.

Cofax makes an important point. This has been overlooked in the discussion, but the implications of Whelan's act, and other outings, extend beyond the parties directly involved.

W.T.,

I've just reread the passage in question, and you're right. I'm wrong. I was misreading Whelan.

No need to belabor the point. As you say, there's plenty of other stuff that Whelan has done wrong here.

This has been overlooked in the discussion, but the implications of Whelan's act, and other outings, extend beyond the parties directly involved.

That's a feature, not a bug. According to Whelan, "people who aren't already the Presidents of their things shouldn't be blogging."

As far as I know, Publius has never, ever posted anything on a site that doesn't allow comments.

Krauss's nonsense, on the other hand, is out there, unrefuted and unchallenged.

Why is that?

ObWi does a very good job of tamping down the inflammatory rhetoric and directing comment toward a useful discussion of some kind. So it's not like respectful and contentious dialog can't take place online.

Point of Law (Information and Opinion on the U.S. Litigation System) is not interested in your opinion, or mine. Which would be fine if they limited their commentary to the U.S. Litigation System and its workings, which is a restricted (though fascinating!) area of expertise.

But as soon as they weigh in on less esoteric topics, shouldn't they be open to comments from the great unwashed? Otherwise, why put it online?

Ben, I apologize for going over the top in my response there. I guess I'm a bit on-edge with all the drive-by commenters who've been proclaiming variations on "all you ignorant/bigoted/etc. libs smear conservatives and so don't deserve pseudonymity", so I hastened to reprimand an apparent smear lest they seem to have a point, and I did so in a regrettably intemperate fashion.

Cofax gets the point. Publius will be OK, but other people will avoid being part of the weird, democratic discussion of the blogosphere.

Whelan has nothing to worry about it, because, as the wobblies used to say, he can always make a living taking coins out of blind men's cups.

Maybe a better analogy than the unlocked house is the age-old argument about women who choose to dress in revealing clothes. (1) Should people dress this way? Very much a matter of opinion, although I'm guessing Whelan would answer in the negative here too. (2) If a woman chooses to dress scantily, should she expect to be hit upon by boorish frat boys? Probably. (3) If you see a woman with some skin showing, should you approach her and make a lewd comment? Exactly.

So, to summarize, Ed Whelan is the blogger equivalent of a drunk frat boy. At least he wears his letters proudly.

"...I owed some sort of obligation to Blevins not to expose his pseudonymous blogging."

If one of Whelan's friends (does he have any friends?) decided to blog pseudonymously, would Whelan respect that choice?

Or is he one of those sleazeballs who would expose his own mother if he thought it would advance the cause of the NRO?

Some people never grow up.

No worries, W.T. Crap like L'Affaire Whelan tends to put everyone's nerves on edge. And you were right that I (not Whelan) was being sloppy. You (correctly) called me on it. I withdrew my complaint.

For drive-by-ers who don't know this site (and its unusual-for- teh-internets comity): see how that works?

I'm finding this turn of events really disconcerting, particularly coming from a putatively conservative commentator who ought to think clearly about individual liberties, not from a political point of view, but from a moral point of view.

Does Whelan simply think that publius does not have the prerogative of pseudonymous blogging? That's a little hard to imagine. Now if publius does have that prerogative, why shouldn't Whelan and the rest of us respect it? And, even if publius somehow forfeited that prerogative (not that I even know what that would amount to), what gives Whelan the moral authority to decide and act to strip it away from him?

What *is* Whelan's argument exactly? This is really the kind of her hurtful, petty behavior you would scold in a toddler. It just doesn't say good things about this person's maturity.

Given that people do have the prerogative to blog pseudonymously (and I'm pretty sure for obvious reasons any conservative would wholeheartedly endorse that), what would happen if we simply casually outed people?

What's Whelan's motive here? To do something hurtful? To improve the public discourse? Is that what he thinks he's accomplishing? If the attacks are unfounded, then they will simply be forgotten. And if they are not, it doesn't really matter whether their author is pseudonymous or not. What I'm getting at is that the quality of our discourse here rests on the arguments, and I don't see how outing somebody's identity improves it any. No one is being coerced into reading publius.

This is all very disappointing from a putative conservative. And I imagine there are plenty of conservatives that are going to be nauseated by this sort of thing.

Terrible. Whelan is on same scale as Mike Doogan, who outted Mudflats. Very low indeed.

"And I imagine there are plenty of conservatives that are going to be nauseated by this sort of thing."

See the quotes I gave here, which I've already linked in other threads.

Following up on Ara's (good) points, what I find shameful and a little disconcerting is the extent to which Whelan and most of his defenders have abandoned even the pretense of civility, of ordinary human decency.

Back in the days of William Buckley, this value - honored in the breach though it may have been* - was, I always thought, one of the few good points of conservatism. (*"Hypocrisy is the tribute vice pays to virtue.")

To the extent that WB, or NR, or other classic conservatives could maintain that what they stood for was, among other things, the defense of a social system in which people treated others well because it was the right thing to do, it seemed to me a positive sign. Weighed against other aspects of conservatism, and the failure of WB/NR/many conservatives even to practice this virtue, it didn't count for all that much, but at least it was on the "right" side of the ledger, in both senses of that term.

Now they no longer even pretend. Sad, that.

The self-justifying tendentious ridiculousness of this is just beyond belief. The fact is that law professors, like all academics, have an obligation to argue consistently *over time*, in all their publications, both online and in print. One of the chief (and totally fair) ways to disprove, or at least raise questions about, what a law professor is saying in 2009, in X, is to point out how it is inconsistent with what he wrote in A in 1995, B in 2002, and C in 2007.

If A, B and C were written by "Bradford William Short", but X is on a blog and is written by "the Scarlet Pimpernel " (who is the guise Bradford William Short chose to assume when he took on his role a blogger), and X contradicts, indeed, is proven wrong, by A, B or C...there is no way to force Bradford William Short to admit his error by the use of reason in critically analyzing his texts since...for all intents and purposes in reading X, Bradford William Short doesn't exist...and it might as well have been written by an English guy who tried to overthrow Robespierre.

You people are law professors, you've published articles, and we have no fricken idea what on because of your use of anonymity. You damn well know that you are fallible and could be publishing stuff here that is, on critical analysis by someone who is against your policy preferences, totally inconsistent and even disproven by *your own writings.* You know that therefore your use of anonymity, or even pseudonymity (does Prof. Blevins put " Publius" on all his law review articles? if he doesn’t then there is no way to judge his whole corpus, and the same defect is still present), gives you a totally unfair advantage in debates such as these, and it undermines the critical use of reason by those who might be inclined to be your opponents in these debates. Indeed, assuming that your motives are as honorable as you say they are, you wouldn't even know when you are being, in X, inconsistent with what you wrote in A, B or C. If you did, you wouldn't merely be a wrong, in error, inconsistent person, but a hypocrite. Therefore you cannot judge for yourself whether you deserve anonymity in engaging in debate X. The default should always be to put your own damn name behind your own damn work.

The fact is, using anonymous-anything gives you an unfair force-field in engaging in all legal-politico-moral debates, and that kind of conduct has no business in the pursuit of truth.

FWIW, I am a conservative-originalist reader of the Corner who used to be a blogger for almost two years while he worked at the Catholic Family & Human Rights Institute (ran the now-defunct "TheThingIs" blog on "TheFactIs" web magazine). I left C-FAM in early 2007, in large part because I came to dislike a certain kind of social/religious right form of advocacy, and as of now my relations with people at C-FAM are certainly not good (to put it mildly). But I am still as opposed to abortion, euthanasia, gay marriage, as I always was. I wanted to get back to legal history, which I would die for in the name of Originalism (which I also hold dear and believe in), and after starting law school again in 2008, I am now finishing up my LL.M. Thesis for Dr. Robert Cottrol at the George Washington University Law School over this summer. My law review publications, my one article I wrote for National Review, my white-hot opposition to abortion and my admission that Mel Gibson is an anti-semitic bigot who Catholics should be ashamed of, all of it both right and the occasional left, was published online and in print, under *my own name*, and you can find all of it on either Westlaw or the NRO search page (if it has to do with TheThingIs, it is only lost because the webpage is defunct, and if it is catched somewhere, by all means, look me up and post it if you think it worth the time). As I continue to add to my work in my legal career, be it on the side from private practice, or in a more fulltime way in teaching law, I won't publish a word under some fake name. I think both John Lott a few years ago, and Jon Adler today are totally wrong in their defenses of this practice.
As for having clients, William Blackstone had clients too...and published on the great legal controversies of his day, under his own name. So does everyone from Ted Olson to Walter Dellinger today. Coming from the Upper West Side of Manhattan, I’m a conservative who knows what it is like to have all your neighbors disagree with you, and if Prof. Blevins wants in on the debate, he should just deal with it (as for family arguments, there too, having lived it myself, I am not impressed). As for having Republicans in gov't in his family, I cannot imagine a Texas high official firing someone because his cousin or brother is a (he thinks) wrongheaded Democrat/liberal/etc. Tons of people (Steven G. Calabresi first comes to mind) can easily get work under a Republican and not have their authority questioned just because they are related to some uncle who really, really doesn't like the conservative President/Governor/etc. in question. I find Prof. Blevins talking about this "threat" to be totally fantastical. Peter Hitchens, Bill Bennett, conservatism has got many people who do well in conservatism despite the fact that they have left/liberal relatives, and famous, annoying, mean and nasty ones at that. (Christopher Hitchens has called everyone in the world a name, but especially on the Right…am I supposed to believe that Peter Hitchens was afraid of this keeping him from publishing with Encounter Books? Bob Bennett is not really mean and nasty like Hitchens, but before he defended Paul Wolfowitz, clearly most of what he did conservatives tended to loathe. Am I supposed to believe this “endangered” Bill Bennett’s career? That is ridiculous.)

Unless Prof. Blevins is in real danger for his views (e.g. were he a dissident in Iran, or someone in the U.S. will commit a crime or tort against him because of being outed) or unless the information is truly private, he has no business trying to keep his anonymity in the first place for the first reason I outlined at the start of this post: a Professor has an obligation to reconcile what he is saying now with *everything* in his published past...and if someone can point out a discrepancy, he has to then make a choice between A and X, or at least try to disprove the contradiction. He unfairly forces people to argue with him without being able to scrutinize his record by taking on the pseudonym to begin with. For that reason, I'd "out" any one of you. You all are unfairly advantaging yourselves by taking the pseudonym to start, and since you don't even know where you might be inconsistent with your own corpus (again, since by definition, had you known, you'd have already made the choice between A and X before the debate began), you have no place denying us, your critical reading public, the chance to scrutinize your record of publications. Indeed, I find Prof. Blevins' dichotomy between "hobby" and scholarship to be one of the most ridiculous things in all of this: subjects such as this one that got Blevins and Whelan so interested and angry are clearly scholarship to most people, and you'd think Blevins would realize that. For him to engage in these discussions, but then cut off his past writings that are relevant to this discussion, is just bogus. If he replies that his field of scholarship is clearly not in the area of international law, I say: "Tough, that is not your call to make." He, as a law prof, full well knows that fields of law (like Constitutional Law, Health Law and Medical Ethics, International Law, who knows what next?) are constantly evolving in ways that make their borders harder and harder to define, indeed, one might say that it is his side in these debates that makes that process happen faster and faster. But whatever is the case on that issue, it is in dispute, and he has no place resolving the dispute in his own favor. That is, almost any part of what law schools teach, can produce a law review article that is relevant to what Blevins is writing about on this blog, and he has no business keeping his past scholarship in the dark to those who want to read it with a critical eye.

He is a law prof and a lawyer interested in politics, law and morality. He may have a record of thoughts in that (huge) area and that may be relevant to what he is saying now. The least he can do is give his own damn name when he blogs so that we can know what he is saying here in relation to all the other political things he's said in his career. If what he is saying is right, or in error but defensible (as we all often have made such statements), his career, family, friends, and whatever else, ought to be just fine. To compare what he writes on this page to pornography is itself either a self-indictment, or total hyperbole. To say that conservative prospective students might be afraid of him after reading a post here is either also itself a self-indictment, or it is treating conservative law students like delicate flowers that (I know from my own experience as one) they don't want to be treated as.

And last, I have had one conversation with Whelan in my whole life, which went nicely, but recently I've thought more adversely about some of his posts on NRO. Thus, I have both positive and negative thoughts about him, and have not spoken to him in about 4 years (and before that, didn't speak to him for 26, since, as I say, I spoke to him once). I was once, in my years since getting my J.D. at Fordham, not adverse to working at EPPC myself...but I wouldn't want to go that route now and there are things that come out of EPPC that I don’t like. This post of mine is to neither defend Whelan nor attack him on any issue of constitutional or international law but to point out that anonymous blogging per se is almost always wrong. (Perhaps, Whelan didn’t try hard enough to figure out if Blevins would be really hurt by being outed, and in so doing Whelan acted negligently or recklessly even by my standard, though, again, I find Blevins’ description of the wrongs he and his family would suffer from being outed fantastical.) As I said, *I* stand behind what I write and say, I believe Adler and Lott are also clearly wrong and shouldn’t anonymously blog, and I think NO ONE, neither conservative nor liberal, has any business blogging or commenting anonymously, and that the internet would suck a heluva lot less if everyone would just have the decency to stop this anonymous posting and say candidly, as a scholar over their whole career, what they believe and what they think they’ve proved.

Of course there was a compelling reason to out publius: publius annoyed Ed Whelan. Don't you know who he IS? He uses his real name and everything!

Ed Whelan's reporting in NRO is irresponsible and unacceptable. I'm sure he won't object if I post his home address, phone number and Silverdaddies.com user ID on my anonymous blog.

Most likely because their preferred method of dealing with disagreement - i.e., dueling^H^H^H^H^H^H^H
lynching
- is somewhat discouraged nowadays.

Fixed

Bradford William Short, I consider myself to be habitually excessively prolix, but that comment of yours was well-nigh 2,000 words, and over 10,000 characters - about twice as long as the post that heads this thread!
And - to the extent that I'm willing to wade through your magnum opus - it seems to be filled with what I perceive to be simple errors:
1) In fact, the fact that someone has stated two mutually inconsistent positions over the course of a decade, or even an afternoon, does nothing to invalidate their current position, nor even does it invalidate their prior position, as maybe they were correct earlier and are have only slid into error. All it does is indicate that they have changed their mind over time, which is no uncommon thing. It's generally considered good form to reference the earlier, discarded position, but hardly mandatory. After all, the position can be examined on its own merits.
2) You invoke anonymity for some mysterious reason. I'm not sure why, as Publius has consistently used a single pseudonym, which is not at all the same thing.
3) You traduce Jonathan Adler when you group his honest use of a pseudonym in with John Lott's fraudulent use of a sock puppet. If you don't understand the difference, I'm surprised for you, and I encourage you to poke around a bit.
4) Who are you to judge the severity of the consequences that Publius faces with his exposure? Why do so many people defending Whelan cite repressive regimes and say that death would be an acceptable excuse, as if other difficulties ranging from inconvenience to career difficulties or family strife were immaterial, just because they are not as great?
5) Your long post, with all of its detail about your biography, seems evidence of your confusion: we don't care that you have had a full and complete life and have moved in some of the same circles as Mr Whelan. We care about the quality of your arguments. You seem to be creating almost a parody of the opposite of anonymity, in which excessive detail about a commenter or a blogger's life is attached to everything they say, and is somehow necessary lest they be ignored.

I see that my own comment is now approaching 400 words and has crested 2000 characters, so I'll stop. I did warn you about my writing style.

Mr Short...

I would be much more impressed if you bothered to take three minutes and understand the difference between anonymous and pseudonymous posting.

As it is, you come off as pig ignorant. That ignorance makes you blather.

The fact is, using anonymous-anything gives you an unfair force-field in engaging in all legal-politico-moral debates, and that kind of conduct has no business in the pursuit of truth.

I might give more credence to an argument like this were Publius engaged here in a professional endeavor. He is not. As he notes, the issues he debates here are often not in his field of speciality and he does not write on them professionally. Would you think that any letters you write to friends, anything you do in a public sphere—conversations at a bar, for example—should be considered part of your tenure review? Barring evidence that the behavior has any application to your professional work, this would quite clearly be irrelevant.

But the quote above is the most ridiculous thing I've heard. What kind of force-field does Publius have? What possible import does our knowledge of him have to do with his argument?

Here's the point that some seem to be missing, willfully or not: when people (like Whelan) put forward arguments with their names attached, they are utilizing their own personal and/or professional authority. The anonymous or pseudononymous blogger has none of that, merely their argument. If, however, someone were to anonymously draw upon personal experience in support of an argument (e.g. "Believe me, I've seen things and know that Whelan is being dishonest."), you might have some cause to say that he is using his anonymity to give him an unfair shield.

But Publius hasn't in this case (or really in any case I've ever seen) done this. In fact, he's notable as a blogger precisely because he DOESN'T do this. He engages arguments on their merits, brings his evidence to the table, and lets the chips fall. It's never mattered at all who he was.

We have the right to face our accuser in a court of law because the accuser is relying upon their own personal credibility to indict someone, so we have the right, in kind, to expose them to the jury and determine whether they should believe that person's word over our own.

But Publius has never asked anyone to take his word. He's made arguments. In this case, it was a harsh accusation, and I have no doubt the Whelan felt stung by the criticism (given his lack of substantive response to the charge, perhaps because he has not response), but he was not justified in outing someone because they embarrassed him with an argument. It was petty, vindictive, cowardly, and ad hominem—all the things he's accused Publius of being, but never was.

These defenses of Whelan (and Whelan's own) are demonstrating far more about his defenders—and justifying Publius's original writings—than anything he could ever have said.

I guess if South Texas is a private school there's not much chance for a Pappas v. Giuliani cite in any potential litigation related to this case? Because that just might make Whelan's head explode...

By the way...

The default should always be to put your own damn name behind your own damn work.

This is utter nonsense. It assumes that the work life and the non work life are one. It's clearly not the case in literary writing, where there is a long tradition of pen names, both in faction and in critical writings. It has not been the case in political writing, where there is a long tradition in American and in the world. And with the growing trend of Internet stalking and harassment, saying that there is no cause to post pseudonymously is both naive and very, very stupid.

Shorter Short: Not only is the argumentum ad hominem logically valid, it's actually a moral imperative.

But to be slightly less snarky. Suppose that we accept the claim that employing a pseudonym is basically wrong, because it doesn't let opponents find contradictions in publications. An easy corollary follows. I might be perfectly consistent on some point in my publications X, Y, A, B, etc. (perhaps I take a firm and courageous stand against crushing puppies), but in private --- in e-mail, or in conversation, or perhaps in my diary --- I could entertain doubts (perhaps the the scientific value of the puppy crusher sways me), or even flat-out reject what I say in public. Clearly, if the critical use of reason is to be possible at all, anyone who ever ventures into the public sphere must make all their past and future utterances likewise matters of public record.

I love the Short-ñata. More double bubble please.

"You know that therefore your use of anonymity, or even pseudonymity (does Prof. Blevins put 'Publius' on all his law review articles? if he doesn’t then there is no way to judge his whole corpus, and the same defect is still present), gives you a totally unfair advantage in debates such as these, and it undermines the critical use of reason by those who might be inclined to be your opponents in these debates."

Why can't you employ your reason in judging publius' statements? He's been blogging for years, his opinions on various issues are a matter of record. His blog entries are open for comment, and he always responds to legitimate challenges. If you can't figure out his thinking on legal issues you haven't been paying attention. What difference does it make if he doesn't wish to reveal the specifics of his personal life, or even his professional life?

If he were a dentist, you wouldn't have written what you wrote. The fact that he's a law professor *and* blogs about his take on the law seems to irk you. Why? What do you need to know about him to debate with him in an on-line forum? What would you gain by knowing who he is or what he does for a living, or even what he wrote ten years ago?

What advantage does he have over Ed Whelan? Ed doesn't allow comments on his blog and doesn't post an email address for responses. I take that as a sign that he doesn't want to engage in discussion. Should I respect that, or ignore his request for privacy, track him down and bug him personally about everything he writes?

In my experience, the only "obligation" a pseudonymous blogger has to his readers is to be honest, fair and responsive to debate.

In all the years that I've followed publius' blogging, I've *never* seen your name in the comments section. You had your chance to object to his statements and opinions, to contribute to the sort of community that develops around a well-written, well-reasoned blog. Now you show up and claim he's got some "obligation" to you. Please.

Of the dozens, or even hundreds, of people who have followed his blogging over the years, both "real" (like myself) and pseudonymous, not one has ever raised an objection to his privacy. We comment on what he writes, and he responds. The fact that he has always admitted to being a lawyer by profession lends some credence to his opinions, but in the end his readers judge him by what he says, not who he is.

BWS: for what it's worth, publius is the only law professor on this blog. Three of us use pseudonyms, and we all have different reasons for doing so. They are not yours to judge. If you don't feel that you can take our arguments seriously without assessing how they fit into our entire collected oeuvres, please feel free not to read us.

However, I think this is wrong:
"If A, B and C were written by "Bradford William Short", but X is on a blog and is written by "the Scarlet Pimpernel " (who is the guise Bradford William Short chose to assume when he took on his role a blogger), and X contradicts, indeed, is proven wrong, by A, B or C...there is no way to force Bradford William Short to admit his error by the use of reason in critically analyzing his texts since...for all intents and purposes in reading X, Bradford William Short doesn't exist...and it might as well have been written by an English guy who tried to overthrow Robespierre."

If A, B, or C disproves X, then it is irrelevant who wrote A, B, or C. If, for instance, I make an argument in logic, and you publish something showing that it's wrong, then you have invalidated my result, period. Whether or not you and I are identical has nothing to do with it.

If A, B, or C merely contradicts X, then someone concerned to weigh all the evidence should take account of both. Again, I don't see that the identities of the writers matter that much.

Identities do matter if you're trying, say, to work out what Kant meant by a given term, and you go back and look at all his writing to see if you can puzzle it out. I have always assumed that no one is sufficiently interested in me to undertake that kind of study; in any case, I have always wanted my arguments to stand or fall on their own. If they can't be understood without bringing my previous scholarly work to bear, then in my opinion they are failures.

@ Asa:

What's Whelan's motive here? To do something hurtful? To improve the public discourse? Is that what he thinks he's accomplishing?

I don't know him and can only guess based on his writings, but I doubt that his motive is to improve the public discourse. His motive seems to have been to remove a perceived obstacle to his broader goal of denying judicial appointments to people who disagree with his (contestable) ideological view of judging.

Here he chose the wrong means, in part because he is not really sensitive to the broader context of his blogging. Plus, his professional work now consists in trying to "out" Pres. Obama's nominees as people who hate the 2nd Amendment, or like Thurgood Marshall's style of judging, or would trade away US sovereignty interest, or whatever (next week it will be something new). The basic "outing" move is anchoring a lot of his professional energy right now, I bet. When all you have is a hammer. . .

BTW, I'm Grover Gardner, and I approve of "zackthedog's" message because Typepad won't let me use my real name.

"Most likely because their preferred method of dealing with disagreement - i.e., dueling - is somewhat discouraged nowadays."

Heee.

OTOH, every time David Bernstein posts something at Volokh, I have to google him to remind myself who he is because I can't *believe* a law professor wrote what I just read.

To repeat a point from PA, on the net "who we are is what we write." For most of us who are not prominent people, our 'real names' could just as well be psuedonyms. (Who is "Jim Benton" and would it change anything he's written if he were really Jim Sanders? And, ironically, legally I was until a month ago when i finally completed the process to formalize a change I had made 32 years ago -- short, boring story involving no scandalous revelations.)

Would it have mattered to me, or to about 95% of the readers if the posts were signed Stan Blevins? They would have read the same, and few of us would have known who Stan Blevins was -- until Ed Whalen made it necessary for us to know. But it still doesn't add a bit of wisdom to the immense amount that already is there.

Hilzoy says: "I don't see this as a left/right issue, but as a decent person/bully issue."

Fair enough. Not all conservatives are bullies.

But what if it turns out that most bullies are conservatives? Is there something about conservatism that makes it ideologically hospitable to bullies?

I can't help but refer back to the Tiller assassination. Conservatives oppose abortion rights. So do murderers of abortion providers. Conservatives might do well to ask themselves why the murderers (and now, the bullies) keep showing up on THEIR side of the ideological fence.

--TP

Dan K's already made the point in passing, but I thought I'd like to emphasize it. In a world where Whelan got his way, a lot more wingnuts would lose their jobs. This is because he believes that a) pseudonymous bloggers should be outed and b) that Sotomayor should not be on SCOTUS. But as an earlier ObWi post on Sotomayor pointed out, she has defended the right (in Pappas v. Giuliani) of people to make anonymous racist remarks without being fired from their jobs. If it's OK to fire people who make racist remarks and to out people who write anonymously/pseudonomously, there are a lot of racists who should be getting very alarmed about Whelan's conduct now.

Hi Gary.

The fact is, using anonymous-anything gives you an unfair force-field in engaging in all legal-politico-moral debates, and that kind of conduct has no business in the pursuit of truth.

You fool! Don't you know who he is? He's "Bradford William Short", some pseudonymous commentator who is too chicken to post any details that would really identify him, like his social security number and address.

I object to people who have been accusing conservatives/conservatism in particular as more likely to out pseudonymous bloggers.

For one thing, it traduces so many conservatives who are absolutely in the wrong about everything but who would respect another blogger's expressed preference for privacy regardless of their politics. We can argue about everything else, but we can agree that we will argue on a level playing field: even if we figure out who someone else is, we won't post it.

For another, the last time I encountered the phenomenon of bloggers outing someone else's pseud, that was not conservatives outing a liberal: it was just someone who lost an argument being mean about it. This kind of petty-minded bullying knows no political boundaries.

Magistra: "This is because he believes that a) pseudonymous bloggers should be outed and b) that Sotomayor should not be on SCOTUS. But as an earlier ObWi post on Sotomayor pointed out..."

I think that comment just blew my mind.

I forget who mentioned it before, but I want to second an appreciation for the irony that Whelan's outing is based on the informed comments of an anonymous source. Perhaps he might look into that for us, let us know who it is so we can judge whether this source has convincing credentials... maybe then we can all be reasonably assured that this isn't some grand charade where Publius isn't just yanking our chains and playing along with the speculation of some cretin at The National Review. For all we know, the source is wrong, and Publius is actually Keith Hernandez.

There are two other things where blowing the cover is not just legitimate but imo mandatory:
1. Blogging/commenting under somebody else's name with the intent of discrediting that person (e.g. like the person that twittered claiming being Keith Olbermann)
2.Claiming that #1 happened to you without that being true when caught in having said something indefensible (Iirc we had a case here where a commenter claimed that somebody else used his handle although the posts came from the same ID address).
I am not aware that any of these acts have been committed by our hosts here though.

Well, I took a few hours off to see how nasty the responses would be, and am now confirmed in my suspicion to the nth degree. It is nice to know that people who have a problem with what they think is my defense of Ed Whalen's ad hominem behavior respond with the near-ad hominem that my post wrong because it is long (clearly, it might be poorly written because it is long, but that has nothing to with whether it is correct or incorrect).

zackthedog attacks me because he has "never* seen my name in the comments section"...not seeming to understand that talking about my personal behavior in reading blogs (I never read this blog until I ran into this stuff from Whalen on NRO, I’m not a reader of this blog, not saying it is worth my time or not, I’m just not), as some reason to discount what I am saying about the general behavior of anonymous/pseudonymous blogging per se...is inconsistent to the nth degree (I've read the relevant posts here on Blevins' pseudonymous behavior...why do I need to know about his great "blogging for years" before I take issue with his pseudonymous blogging as *pseudonymous* per se? don’t you see how it is totally inconsistent to test me on my knowledge of his past blogging corpus, while you attack me for believing that *everyone* should have more of their total on-point corpus at least attached to their blogging corpus by the fact that we know the dude’s real name?)

While we are on this particular post, let me say that I'd damn well care about what a dentist published and thought in Medical School, were he doing some kind of very experimental and new kind of dental surgery on me...and previous research he did might show that he wasn't as sure about this new dental procedure as he has been letting me think he is sure about *now*, when he’s changed his mind and thinks the dental surgery would work! I am no expert on this blog, but I doubt that you are all arguing about what are the elements of the tort of Negligence. This isn't ministerial here. This is non-settled constitutional law and philosophy stuff. Blevins has a job where he makes money and stays employed by writing on *exactly* the kinds of things he blogs about here (even if his writings are mostly on Telecom policy *now*, I doubt the school will frown on him moving into cutting edge international and constitutional law, especially if that gets him noticed, schools tend not to do that). I don’t care if he has a blog on gardening on the side, or if that is not linked to his name. But he is blogging on things that he could turn into law review articles. That ain’t dentistry.

And indeed, that is the point, the original writer of the post that starts this thread basically says that "identities of the writers" don't matter much. That is too cute by half. None of you honestly believe that people don't have more of an obligation to, when working on X, if A contradicts it (in any way, disproving it, calling it into serious question, semi-serious question, whatever) that they don't have more of an obligation to see that A contradicts it...*if they actually created/wrote A*! If A is merely something amongst the 100,000's law and politics/morality articles out there, everyone believes that there is less of an obligation to see the contradiction/possible error. I mean, come on.

Furthermore, while I am no postmodernist, I do think we are, you know, human beings and not just computers. Something written by Richard Roe in 2002, that disproves some conclusion Richard Roe is coming to in 2009 is much, much, much more likely to actually convince him of his error than something pulled out of the entire world of publications where "identities of the writers" don't matter much. Furthermore, the fact that one has to, for his/her own reputation, be consistent with him or herself (or at least admit that one position must be given up when two of his public writings contradict each other) when there is no pseudonymous/anonymous writing allowed (however it would not be allowed, if no other way than by moral suasion) itself is a profoundly good check on the scholar himself.

You people are seriously saying that you, I guess being perfect liberals without sin or error, never have a tendency to act inconsistently or hypocritically...that is you are never be checked from doing something wrong by the fact that often you know your wife, your kids, your colleagues, etc., can quote something back to you that you said when it was in your favor...but that you are discarding now when it is not?

No, you are all perfect. Prof. Blevins doesn't ever need the check of the fact that others have perhaps kept a record of what he's said in the past. I think *I* need that, I think everyone on "my side of the isle" needs that...but you don't. And there is nothing arrogant at all about that stand. Oy.

I won't even respond to the rest, I obviously didn't defend Whalen's behavior itself, other than to say that insofar as it was simply outing someone, I have no problem with that because you all shouldn't be anonymous/pseudonymous/whatever-less-than-public to start. To the commenter who thinks it is crazy that I bring up examples like Iran, and I am nuts to see no middle cases, yes, you are right...I don't think endangering Prof. Blevins's next Thanksgiving, or him getting into a fight with his brother, or a nasty stare from a colleague at the law school, is a morally serious enough reason for his anonymity, pseudonymity, whatever. He is basically a law professor who writes really long and purportedly scholarly posts on law...but doesn't want anyone on his tenure committee get a look at them and doesn't want the people who read his blog to see if his work is consistent, and he asserts, by his own ipse dixit, that the two spheres of legal publications are separate enough and we shouldn’t worry, even though he damn well knows he is a judge in his own case on that question. I don't believe *anyone* should be able to do that (to put my position another way, if I had a big red button in front of me, that could expose every non-public blogger who writes things in his profession of scholarship without linking that online material to his name and with all the other things he's published in print, etc., and that button would expose every conservative who says whatever, racism, slander, inconsistencies, hypocrasies, and every liberal too, and everyone in between and unable to be defined, I'd probably press it; I wouldn't press it just for the liberals and I wouldn't press it just for my enemies, I'd press it for everyone; that is my position, not to “defend Whelan”).
Indeed, I can’t help but thinking, you all are clearly mostly of the left…groups like FAIR have often attacked reporters (often seen as being on the right) for not providing disclosure of certain things people watching or reading news stories might want to know before watching the story. Do you really think that there is *nothing* to that? That all disclosure is unneeded and all these things should, totally abstractly, stand on their own? We don’t even need to know who wrote it, a la the Economist for all those years. (FWIW, yes, I’ve also always had a peeve about the Economist not having anyone personally responsible for his/her own article.)

Indeed, it is really silly that people keep on asserting that, unlike horrid ad hominem me, they are "only interested in arguments." Oh really? You evidently aren't interested in *any* of the arguments Blevins made in any of his law review articles. Nothing weak in his reasoning on this blog wouldn't be brought into greater relief when you read those articles? There is nothing that *he* could learn by having his feet held to the fire by a closer scrutiny of both the blog and the articles...and you all *know* this...even though, by definition...you can't know anything about what you are missing because your whole premise is that he should be able to keep you from ever finding out anything about any one of his law review articles?

All because, yes, in theory, in the total expanse of all possible human reason, you might be able to figure out what is problematic in his work in this blog...all on your own. I guess by that rule, via a reductio, I could take Einstein's photoelectric effect paper and cast it into the flames before he published it, shoot him dead, and then say..."well, I haven't cost science anything, because you can still re-prove everything he wrote using your own reason!"

Also, I didn't say that what Lott did wasn't worse than what Adler did (it is), but even if it didn't have a kind of smarmy self-praise to it, and was just anonymous/psedonymous writing about his own field, it would be still very wrong. That is, on my view of what is wrong, both Lott and Adler are guilty of the same infraction Blevins is, it is just that for Lott, that infraction is an element of a yet-still greater infraction (i.e. the “sock puppeting”). Just because I am against robbery, that doesn’t mean that I am not also against larceny, or that larceny isn’t a part of robbery (indeed, it is, larceny + assault/battery = robbery).

Obviously bringing up the Tiller murder is quite shocking coming from people who so oppose getting ad hominem. But, I'll even say this...*certainly* if we were debating at what point anti-abortion activists might start encouraging murder with their rhetoric...what I (B.W. Short) said many years ago on, say, what particular thing, say, Al Sharpton might have said during some NYC disturbance/riot that incited violence against, say, Jews, certainly someone of you who might want to convince me that anti-abortionists *did* encourage the Tiller murder, if you could make an analogy of a passage stated by Sharpton that I clearly saw as an incitement to hurt Jews, to one made by anti-Tiller protester X to hurt or kill Tiller, that might make the point clear to me in a way a more abstract argument would not. It also might make that more clear to readers. And I doubt that any of you would have a problem with this mode of argument if the result was that you got an anti-abortion person to admit that antiabortionists incited the Tiller murderer to do his evil deed. And, obviously, none of you could do this if my previous Sharpton comment was behind some wall of anonymity/pseudonymity I created by creating a separate web persona years ago.

And as for this: "We have the right to face our accuser in a court of law because the accuser is relying upon their own personal credibility to indict someone."

I'm sorry but that is just crazy. We have a right to cross-examine witnesses because of the problems we might be able to find in what they have said about us in that court of law. We also might want to identify motive about why they might falsely or just plain erroneously accuse us. We deal with *both* their abstract reason and their flesh-identity persons when we cross-examine them. And, while no crimes have been alleged here, Prof. Blevins is certainly capable of making allegations on his blog that are more than mere arguments. I can’t see how this means we want to know his motives (via knowing who he is) *less.*

Indeed, I think in one sense, a criminal trial analogy helps my case. My understanding is that a witness can be impeached at trial not merely by his testimony at the trial...but also by his grand jury testimony, and even other pre-trial statements. And this is done not only to prove that the grand jury testimony, *or*, the trial testimony is correct, but also to show that maybe the witness is just mixed up in general about everything, and shouldn't be believed by the jury whatever he says. Clearly, those acts bear more resemblance to my wanting to go back to A, B and C, than the metaphysical defense of hermetically sealing off the two Prof. Blevins here.

gwangung shows that he can be both rude and not read what I wrote. Even psedonymous blogging, while allowing readers to hold the psyeudonym accountable to all the pseudonym has wrote, doesn't allow us to hold him to account for his law review articles published under *his own name*-unless, of course, the law review articles were also published under the pseudonym; it is the same problem as anonymous blogging, only of a smaller degree. That was my point about Blevins not attaching "Publius" to his law review articles. It is not totally transparent within itself as a public professor. That is my problem with all of it. I know the difference between psedonymous blogging and anonymous blogging, I just think it is a difference of degree and not kind, and the degree ain’t enough for me to care much. It’s all bad.

The point that my reasoning can be reductioed to wanting every scrap of paper Blevins ever wrote is cute, but it can be reductioed right back: you are saying he can do every post by a different anonymous name...and I shouldn't care, only judge each one, separately, on its own totally abstract reason, not in any way thinking that he ought to have some consistency in his posts that I can judge. You reductio me, and you get me demanding to know about his gardening blog; I reduction you and the distinction between anonymous and pseudonymous blogging, indeed the distinction between any connection in a person’s writing, evaporates, beyond not mattering much, but not existing at all.

The fact is, a tenure-track law prof, writing about high matters of constitutional and international law, in a public forum, where often ideas for law review articles start and are batted about, is a heluva lot closer his professional existence as a law prof in his articles, than his gardening blog. We have to draw the line somewhere, I draw it at stuff that is in “law, morality and politics” being all grouped together under the same man in a way where we can look into it if we want to. You haven’t shown that that is crazy.

Next to last, as for "who am I to judge": I am someone who has blogged for years, and in that time been told that I would "burn in hell" for pointing out that Catholics in Ireland were often not the good guys in 17th century England, been compared to Robespierre, and pissed off his boss who controls his pay, all the while letting the whole damn world know who I am and bringing this all on my own head (and I am just relating what the conservatives did to me when I blogged). And yet, I find these worries about "internet stalking" to be, again, fantastical, and if people want to compare me to tyrants put me in hell, that is there right, and as for my employment, sometimes it is good to leave a job. I piss off my neighbors, argue with my professors before they give out grades, and let the whole world know who I am. No one yet has come to kill me. If you think that makes me stupid, I think you are totally paranoid. I find Blevins claims that he might have some Republican relative lose his job because of this just. not. believable. at. all. If I am presented with a pink slip by him from the Texas Republican who fired the guy because he learned that he was related to a liberal, I'll publicly apologize and call on that Republican to resign for being imperious and an insane ass. Somehow, I think I won’t have to eat crow on that point before Prof. Blevins. I think the burden of proof is on Blevins, though, because I think anonymous/pseudonomymous blogging, especially from scholars, is a terrible thing for society in general, I have only thought that more as the years go by, and think the people who benefit from this practice shouldn't get to blithely talk about all the horrible things that will happen to them if they have to give up the practice. I just simply don’t buy what Blevins is saying. Maybe he is just paranoid, but I don’t have to answer to his paranoia. (I also note that the general tone of some of Adler's posts are that he largely overestimated the degree to which he could have endangered his career by blogging not anonymously/pseudonymously. That he admits that, I think, is quite telling.)
Last, I note that in his first post where he responds to Whalen’s outing of him Blevins states that “Also, I write and research on telecom policy – and I consider blogging and academic research separate endeavors. This, frankly, is a hobby.”
Now that struck me as really unlikely. I mean, all he writes about is telecom policy, outside of this blog? It is possible, but less and less likely as the years go by in legal academia. Everyone wants *in* to constitutional law in some way, or to say *something* about it. So I decided to look up Blevins’ profile/c.v. at the law school webpage, not to kill his kids, but to check on his publications (a very non-stalker activity). His first one is this: “Lyons v. Oklahoma, The NAACP, and Coerced Confessions under the Hughes, Stone, and Vinson Courts”, 90 Virginia Law. Rev. 387 (2004). I looked it up on Westlaw, and it is the very essence of a criminal constitutional law, political-y, law review Note. It is pretty long (69 pages) so it is a pretty substantial part of his writing all by itself, and it seems to have very, very little to do with telecom policy.
Now, it was his law review note, maybe he doesn’t think about that as what his career is really about *now*, maybe he thinks that is all in the past before he got onto the scene as a professional, I’m not saying Blevins’ was deliberately lying to readers, trying to make the division between his writing on this blog and his publications seem larger than it really is. But guess what? Even if not intentionally, his statement is sure as hell wrong. Prof. Blevins, who is only 5 years removed from this law review note after all, most certainly does not only write and research on telecom policy. I think he might very well come back to constitutional criminal law again in his career, and I also think he might come back to issues concerning constitutional and international law like those that come up on this blog, and that there is a heluva lot less daylight between Lyons v. Oklahoma and Harold Koh than there is between telecom policy and Harold Koh (indeed, a case like Roper v. Simmons might be just where Koh and Lyons meet).
And the only way I ever could have found out that Blevins’ description of what he works on as a public law prof, is more than what he described here on his blog, is because Ed Whalen outed him. I think that fact is very telling too.
(Oh, and last, last, I actually think the post that just appeared at the top of this blog in its main cover page, on Stuart Taylor’s piece, is pretty much correct, and that Taylor’s thinking there is really quite bad. Though calling it “hackery, pure and simple” is exactly the kind of un-civility that you all want never visited upon you, but then you visit right back at almost no provocation at all.)

I wonder what Bradford W. Short, champion of Whalen, thinks about Ed Whelan's outing of Publius?

(Not that I'm normally one for picking at typos. Just that if I were a concerned champion for justice to be done, I'd be sure to check how the person I'm championing spells his surname.)

I comment using a semi-pseudonym (my initials)because I'm a lawyer in private practice. and I don't want to have to worry about my politics getting mixed up with my clients, although thats probably a concern more theoretical than real. But that's not at all the same thing as being anonymous--at this point, rea the blog commentor probably has a bigger and better reputation than R___ E___ A____ the lawyer . . .

And the only way I ever could have found out that Blevins’ description of what he works on as a public law prof, is more than what he described here on his blog, is because Ed Whalen outed him.

Bradford W. Short could have clicked here and seen

Publius is a law professor in the so-far, so-good state of Texas. In past lives, he blogged at Legal Fiction and was a lawyer in DC. He likes to eat things with hot sauce on them.

Juxtaposed with

Next to last, as for "who am I to judge": I am someone who has blogged for years,

suggests that Bradford W. Short is also aware of all Internet Traditions.

Bradford W. Short ( A terrible eponym if there ever was one) believes that arguments should not be made with logic. No, that's far to messy. He believes that arguments should be made with words. A wall of words and names.

Look at this drivel:

I’m not saying Blevins’ was deliberately lying to readers... I'm just implying it in the pre-amble.

This is the kind of special kind of commentator who takes seven thousand words to even recite the completely obvious subject os his verbal hemorrhaging:

And the only way I ever could have found out that Blevins’ description of what he works on as a public law prof, is more than what he described here on his blog, is because Ed Whalen outed him. I think that fact is very telling too.

Two words: Duh, and Congratulations. I'm sure he needs the support because comprehension isn't his strong suit:

We have a right to cross-examine witnesses because of the problems we might be able to find in what they have said about us in that court of law.

Apparently when choosing to blog about such high matters of constitutional and international law, in a public forum we all undertake an oath that carries the weight of bearing evidence in a court of law.

But what do I know, I'm just some guy on the internet. I'm not Bradford W. Short.

Eh, 'Short' (Talk about irony!) does have a bit of a point. Though it's not strictly a logical response to one's current argument, pointing out that you're saying X here, and not-X there, does tend to powerfully undercut the force of your arguments. Certainly, it leads to a demand that you make clear which, if either, you really believe.

And that IS a tool that's denied the opponent in the case where X is published under one name, and not-X under another. A bit of an unfair advantage, though not a huge one.

Of course it is not logical. It is the textbook definition of an ad hominem argument, also known as argumentum ad hominem (Latin: "argument to the man", "argument against the man").

But what do I know of things logical? I'm not Bradford W. Short.

Dear Bradford, please could you provide me with a link to your blog? I'd like to come and comment. I will even do so using my real name, if you like.

best wishes

Rachel Stone

I'm not sure that pointing out somebody is arguing one position in one forum, and the exact opposite in the one you're in, is fairly described as an ad hominem. It doesn't logically imply that the position you're arguing against must be wrong, (Your opponent could be wrong in the other forum, instead.) but it's not like we're exclusively trading syllogisms. There's a certain amount of rhetoric involved here, too, and being caught out arguing both sides of a position is a powerful rhetorical weakness.

Which using multiple names disguises.

Though it's not strictly a logical response to one's current argument, pointing out that you're saying X here, and not-X there, does tend to powerfully undercut the force of your arguments.

Yes, one would think so.

Brett, Whelan could have come in the comments and stated his case. He could have asked for a front page post to make his case. That advantage only obtains if Publius refused to allow Whelan to comment and denied him any chance to state his views in the forum. That would be a patently false accusation. Whelan short-circuited all of that by going to the nuclear outing option immediately.

Also, as a putative libertarian, don't you think that what Whelan has done attacks a libertarian philosophy? If not, why?

Also, as a putative libertarian, don't you think that what Whelan has done attacks a libertarian philosophy? If not, why?

Presumably, because it's not been done by a wicked government, but by a private individual and is therefore OK.

As a slightly more substantive response to Bradford Short (and as someone who blogs pseudonymously about an academic topic and also writes scholarly articles about it), what the hell is wrong with that? Who does that harm? Why is my pseudonomymous blogging 'a terrible thing for society'?

Short makes an analogy with a dentist, and says that if you engage someone's services, you have a right to know all their relevant opinions: but he's not hiring anyone's services here. He talks about responsibilities in a criminal trial, which is equally irrelevant.

His sole vaguely coherent point is that you cannot assess someone's argument unless you have read all their work, in case there's a contradiction in it. Now, I would have said that Publius has written enough as Publius to find contradictions if you're looking for them (and the ObWi audience is quite good at finding such contradicitions in front page commentators). I've certainly contradicted myself many times in what I've written (but I am large and contain multitudes).

Personally, I'm quite happy to point out the problems of Bradford Short's arguments without reading all his work (I have some far more interesting medieval Latin sermons to read, for example).

It's also ironic that both Hilzoy and Publius have made clear that, as lecturers, one reason they blog pseudonymously is because they want to separate out their personal political opinions from their professional role, so as not to influence their students unduly. Given that it's conservatives who are constantly whinging about liberal lecturers importing politics into the classroom, surely they should be supporting such an ethical stance?

It doesn't logically imply that the position you're arguing against must be wrong, (Your opponent could be wrong in the other forum, instead.)

That would be the hominem part of the phrase ad hominem. The notion of identity constrained to one hominid, or human. When you say "position you're arguing" in the phrase above, you are conflating the identities of the authors of each position in meatspace, by tying them to a single body. BY DEFINITION, this is an ad hominem attack. If it wasn't you would cite the alternate identity as a source of conflating opinion without trying to link the identities.

It probably has been done, but I assume that those against anonymous blogging have damned the original Publius (or one of three) and all the others of that era that anonymously wrote all those pamphlets and newspaper articles. Roughly speaking, the blogs of the day.

http://www.law.cornell.edu/supct/html/93-986.ZC1.html

Fun fact: Jeffrey Rosen's wife works for Whelan's Ethics and Public Policy Center.

(h/t to DougJ at Balloon Juice)

Also, see this comment by kid blitzer.

Ted Hitler would like to weigh in.

Oh, and Bradford? You are one long-winded SOB.

(See? Now that's an ad hominem attack. It's also true.)

As usual, it all comes down to metaphysics. If the way you know things is through evidence and logic, then the identity of the person making assertions is unimportant. If, however, you think evidence and logic are less important than the authority of the person making the assertions at issue, then pseudonymous blogging is a cowardly refusal to expose your arguments to refutation. (Don't beleive him! The law school at which he teaches is not of the first rank, and not all of his grandparents won Noble prizes--who is he to argue against a former deputy assistant cabinet member?)

And as for this: "We have the right to face our accuser in a court of law because the accuser is relying upon their own personal credibility to indict someone."

I'm sorry but that is just crazy. We have a right to cross-examine witnesses because of the problems we might be able to find in what they have said about us in that court of law. We also might want to identify motive about why they might falsely or just plain erroneously accuse us. We deal with *both* their abstract reason and their flesh-identity persons when we cross-examine them. And, while no crimes have been alleged here, Prof. Blevins is certainly capable of making allegations on his blog that are more than mere arguments. I can’t see how this means we want to know his motives (via knowing who he is) *less.*

Indeed, I think in one sense, a criminal trial analogy helps my case. My understanding is that a witness can be impeached at trial not merely by his testimony at the trial...but also by his grand jury testimony, and even other pre-trial statements. And this is done not only to prove that the grand jury testimony, *or*, the trial testimony is correct, but also to show that maybe the witness is just mixed up in general about everything, and shouldn't be believed by the jury whatever he says. Clearly, those acts bear more resemblance to my wanting to go back to A, B and C, than the metaphysical defense of hermetically sealing off the two Prof. Blevins here.

I confess, reading this made me seriously question the intelligence of Mr. Short. The lack of comprehension is so profound it must be some kind of ideological blind spot. But since that's a bit ad hominem, I'll just go after the logic (or lack thereof).

"We have a right to cross-examine witnesses because of the problems we might be able to find in what they have said about us in that court of law."

In relating this analogy back to Publius, there was nothing preventing Whelan from doing this at all. He could talk directly with Publius and point out the failures of his logic or anything else in what he said. Strictly speaking, what you are discussing here isn't the reason we are allowed to examine witnesses but see the evidence against us. In this case, Publius's evidence and argument were in full view.

"We also might want to identify motive about why they might falsely or just plain erroneously accuse us."

Exactly. If you can't attack the evidence, you attack the credibility of the person offering it. And, as I noted, if Publius were making an argument that relied upon his credibility, this would be an issue. Except he wasn't. And hasn't. He was pointing out that Whelan's arguments were inconsistent and contradicted by other available evidence. The trial analogy wasn't mine, but I've seen people use it as justification for outing Publius on several occasions. But in truth, he's really more like the lawyer, who presents his argument in court.

Actually, I think that's a perfect analogy. Would it be relevant to the determination in a particular case if the accused were to start arguing that the lawyer in this case actually argued the exact opposite in a trial last week? Of course not. But why? Because the issue is the argument at hand, not the individual making that argument. And by choosing instead to make this about the lawyer rather than the evidence, Whelan has engaged in an ad hominem.

"And, while no crimes have been alleged here, Prof. Blevins is certainly capable of making allegations on his blog that are more than mere arguments. I can’t see how this means we want to know his motives (via knowing who he is) *less.*"

This is certainly the problem with coming into a real world situation and making abstract arguments. Is it possible for Publius could do this? Sure. Has he? Um, no, which you would know if you knew his pseudononymous work. But logically it makes no sense whatsoever. You argue that because someone using a pseudonym could act in this way ergo it is wrong for people to use pseudonyms and this one possibility trumps all other concerns. Further, this complete hypothetical means you can't evaluate his argument, but must know the reason for his argument as well. (Oh my God! That lawyer doesn't actually believe what he's arguing about his client! How can the legal system function?!) Complete and total nonsense.

" And this is done not only to prove that the grand jury testimony, *or*, the trial testimony is correct, but also to show that maybe the witness is just mixed up in general about everything"

This is where an understanding of the difference between anonymity and pseudonymity really would have helped you to even understand the arguments here. (How can you evaluate them though? You don't know who we are!)

You would look for inconsistencies in testimony to determine if the evidence is valid—in the case of witnesses, whether they are telling contradictory or varied stories. But, look, Mr. Short, you are simply conflating arguments that are carried by the weight evidence of a personal nature (I saw this, I heard this, I know this) and arguments that seek to use evidence already available. This is not some minor issue and it's why the lawyer analogy is infinitely more apt.

Publius wasn't asking us to take his word for anything. He was an observer, making an argument based upon the evidence available. If he is wrong or misrepresents the evidence, he will pay a price. That price would have been proportionate to his crime. His hard earned reputation would have been sullied. But he's not writing professionally here, nor presenting himself as a self-styled expert, which is why all your cries about his professional ethics is simply wrong. You have decided this is academic writing. Neither he nor his audience considers it such. It's a debate, an argument, one that can happen more honestly because people feel no concern about their livelihood.

If I'm wrong, people can knock me down. If I'm right, I've added something to the conversation. Have you become such a slave to your own system that you've forgotten the purpose and value of actual debate?

I think the rest of your argument is drivel as well, but I have neither the time nor energy to get into it and I'll leave that to others.

The issue seems pretty simple to me.

Publius preferred to blog anonymously. Absent some really compelling reason to disclose his identity without his consent, plain old common decency and respect for other people would say that you should not do so.

The argument that use of a pseudonym prevents you from "confronting your accuser" is nonsense. It's a blog, not a court of law. If you want to make a reply, you post a comment. Your thoughts will have all of the authority and credibility of whatever it is you're responding to.

Which is to say, if you're spouting nonsense, folks will rightly ignore you (or perhaps mock you in an ever-so-friendly way). If you make sense, they'll engage your argument and offer their own thoughts.

Welcome to blogistan.

Likewise, the argument that writing under a pseudonym prevents you from reviewing the full body of the bloggers work is nonsense.

Blogs aren't court cases, law reviews, or anything else than a place where people gather to discuss stuff that is interesting to them. What people say stands or falls on its own merits.

If publius says Whelan is full of crap and provides the reasons why, we can all consider that claim and make our own decisions about it.

If Whelan wants to refute it, he can engage it on its substance and make his reply.

Who publius really is, what he has written in other fora on the topic, what he does for a living, where he lives, and what size hat he wears (or if he even wears a hat) ARE NOT NECESSARY items of information to anyone participating in the exchange.

It's a blog.

Publius called Whelan out. Rather than engage the substance of publius' remarks, Whelan discovered publius' real name and identity and disclosed it publicly, AGAINST PUBLIUS' EXPRESS AND EXPLICITLY STATED WISHES.

The exact thing that that accomplishes is to establish Whelan as a gold-plated jerk.

The rest is noise.

Thanks -

Buried in the middle of the latest "Bradford W. Short" novella, we find this sentence:

"Obviously bringing up the Tiller murder is quite shocking coming from people who so oppose getting ad hominem."

Is "Bradford W. Short" confessing to the Tiller murder, or is he confused about the meaning of "ad hominem"?

--TP

I'd agree with you, russell, except you said Publius preferred to blog anonymously.

For cryin' out loud, how many times do we have to say this? THERE IS NO ANONYMOUS BLOGGING HERE.

I'm not just beating this drum because I'm picky about language (though there is that), but because "anonymous" has a well-earned reputation in RL for going along with "cowardly, threatening, lying" -- as in "anonymous letters, anonymous phone calls".

Do you honestly think pseudonymous = anonymous, or was it just a braino?

One thing that's odd about BWS's views is: it never occurred to me that anyone would want to devote all that much time and energy to scrutinizing my collected works.

You people are seriously saying that you, I guess being perfect liberals without sin or error, never have a tendency to act inconsistently or hypocritically

News flash, Bradford: we're not all liberals. Furthermore, there are plenty of conservatives elsewhere (kindly linked to by Gary Farber) who objected to Whelan's outing of publius.

Now, we may have significant differences regarding our grounds for objection, but objection is in fact widespread.

Me: conservative, objecting to Whelan's petty attack on publius. If Whelan acted "inconsistently or hypocritically", then he ought to have the decency to at least acknowledge his sin, and apologize. Not that doing so amounts to an undo, but it's what to do, after you've fncked up.

I'm reminded of the movie 'In and Out' where high school teacher Howard Brackett played marvelously by Kevin Kline is supported by students, family and friends by a ground swell of 'admissions' that "I'm gay". Although more of a gnat here than troll, I am appalled by what took place; and am equally pleased by the outpouring of support for pseudonymous blogging by the mainstream blogging community. Although I wouldn't be nearly as hard for anyone to find if they would want to, I would rather they wouldn't but don't give a damn if they do - it's a reflection on them not me. I'm usually in polar opposite to publius' positions, but greatly expect his right to express them in this forum - a forum where the ground rules are quite obvious and heretofore pretty well respected. Just goes to show that some are not just small and petty, but downright mean. Says who? Says me - Randy R. Dunn, Oak Ridge, MO. publius, your loss is our loss. 'Tis a cruel world we live in.

I do think we are, you know, human beings and not just computers

Knock me over with a feather.

You, Bradford, are a man who is very, very badly in need of an editor, or at least some more effective self-editing tendencies.

From mpv it was a selfish act to fame or to show power.

See, this is what confuses me about our dear friend Brad here. Is he really so self-important as to believe that our time would be well spent poring through his comments? Or is he so dim that he hasn't noticed that no one else is writing comments of anywhere near that length? Or is he one of those people who feels that ordinary norms don't apply to him when he gets excited, and (judging by the length of his comments), this issue clearly excites him? Or is he one of those people who has never really engaged with people who disagree with him and is thus totally flummoxed by the whole concept?

I'm not really an ethics or lawyer guy, I'm a numbers and data guy. So let me add my two cents. Let's assume this is a valid objection to out pseudonymous bloggers:

The self-justifying tendentious ridiculousness of this is just beyond belief. The fact is that law professors, like all academics, have an obligation to argue consistently *over time*, in all their publications, both online and in print. One of the chief (and totally fair) ways to disprove, or at least raise questions about, what a law professor is saying in 2009, in X, is to point out how it is inconsistent with what he wrote in A in 1995, B in 2002, and C in 2007.

Has this in point of fact ever actually happened? Has it ever been the case that someone has achieved an influential position by flying under false colors, so to speak, and caused harm to others by reverting to their true opinions? And were those opinions ever expressed on a blog under cover of a pseudonym?

Positing what-ifs is all very well. But there's got to be some possibility that they can actually happen. And the fact that no examples are actually brought forth is telling.

So does anyone have any examples of this sort of thing? Any examples? (I don't buy the argument, btw, in fact, think it's a dissembling cloud of ink, but let's be fair and dispassionate.)

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