By Joseph N. Hosteny of Niro, Scavone, Haller & NiroTo quote talk show host Roe Conn of WLS Radio in Chicago, “The
blogosphere is angryonymous.” It sure is. Jon Stewart said at the Oscars – this is
hearsay, because I believe Dick Shawn’s description of the Oscars as a yawn and never watch
– that Hollywood needs a hug. Maybe America does, too, at least if one reads too many
anonymous blogs. I once recommended that a high-strung commentator try the decaf. Maybe we all
should.
My March column (“The Cowardice of Anonymous Bloggers”) dealt
with the anonymous blog, TrollTracker, the death threat anonymously posted to that blog, and the
abuses to rational public discourse that those practices encourage. My April column
(“TrollTracker, Cisco and the Coalition for Fairness to Foxes in the Hen House”), pointed
to the motivation of TrollTracker, who turned out to be a Cisco attorney, and the evidence of
sponsorship by Cisco, whose views of the value of IP are so plastic, varying depending on the identity
and size of the owner of the IP, rather than the value of the IP itself.
Now we have Cisco, a member of the Coalition for Patent Foxes, backing away. It
disavows Rick Frenkel’s blog after he reportedly described the Eastern District of Texas as a
banana republic.1 Cisco,
realizing it might not be a smart idea to disrespect federal judges the same way it routinely disses
American citizen-inventors, said:
That said, we would like to underscore that the comments in the employee's personal blog
represented his own opinions and several of his comments are not consistent with Cisco's views, . . . .
We continue to have high regard for the judiciary of the Eastern District of Texas and confidence in the
integrity of its judges.
The assertion that Mr. Frenkel’s views aren’t consistent with
Cisco’s views is rubbish. He attacks small companies and inventors; so does Cisco. He uses
disparaging terms to describe them; so does Cisco. He uses a type of ad hominem attack:
to defeat your adversary’s argument, belittle the adversary. If the adversary is a rat, nothing he
says can be believed. So does Cisco.
Although the company tries to distance itself from Mr. Frenkel, to my mind, Cisco
was clearly using Frenkel's blog to advance its own position. Business Week
reported in its March 27, 2008 issue (“Busting a Rogue Blogger”), that Cisco's General
Counsel Mark Chandler "cited the blog as a good independent source of information while
in Washington lobbying for changes to patent law that would rein in trolls, unaware he was
plugging the work of a Cisco employee." 2 I am very skeptical that Chandler was unaware that the blog originated
from within Cisco, since Mr. Frenkel has said that his boss, who is not far removed from
the general counsel, knew about the blog.
Even Cisco’s official blog admits that Mr. Frenkel’s blog wasn’t
produced in isolation; it was influenced by views of still other anonymous persons inside Cisco. On
March 24th, in a posting titled “Lessons Learned,” its official blog acknowledges the
obvious, that other Cisco employees were involved:
We believe that a few Cisco employees used poor judgment when they suggested topics to Rick for
his anonymous blog or pointed third parties to the blog without disclosing that the content was created
by a Cisco employee.3
Ironically, as the blog legalpad pointed out on March 25th, this official posting was
itself anonymous, signed only by “Cisco.”4
So, it’s apparent that the Frenkel blog was not a one-man show. The
question that remains is: Who was feeding him information, and why? What were his
contributors’ motivations? Were these the same people who are responsible for lobbying
Congress to pass the Patent MisReform Act? The Recorder reports that the Coalition spent
$500,000, just in 2007, in lobbying for its passage.
Of course, as I pointed out in my April column, Rick Frenkel’s blog, once
open to all, is now by invitation only. Imagine if your morning Chicago
Tribune or New York Times was suddenly encrypted, or if past issues were taken
out of the library, simply because some of its readers complained. The standards of this blog have a
way to go to meet minimal standards of good journalism. The ability to rewrite history by taking down
Internet pages smells of Orwell’s 1984, and is to me one of the most troubling aspects of
journalistic amateurs on the Internet.
Is it a good idea to blog anonymously? Some say it is, citing the Federalist Papers,
which were written in support of the adoption of the Constitution, as an example of anonymous
authorship. They say that Alexander Hamilton, John Jay, and James Madison were anonymous authors,
which justifies anonymous blogging and commenting. This doesn’t strike me as an adequate
justification for the kind of wacky commentary we are seeing now on the Internet. On the very
controversial blog, juicycampus.com, it is deemed fair for an anonymous poster to publish the name of
a college student and brand her as a slut.5 If you want to see what some college students are talking about, visit the
site, but be prepared to have your hair stand on end. According to the Associated Press, an anonymous
poster on Craigslist said the owner of a farm had to abandon it, and that everything was free for taking.
A lot of people thought -- or claimed they thought -- the ad was true, went to the farm, and took
whatever wasn’t nailed down. It turned out that the posters were two thieves.6 There have even been reports that
some Internet postings may have contributed to suicides.7
There are a lot of differences between the Federalist Papers and these modern
anonymous postings, and there are a lot of differences between the 1780s and now.
First, when the Federalist Papers were written, there was no Internet. So, no one
could post an asinine, vitriolic comment within three nanoseconds of the publication of a Federalist
paper. I have seen the effects of the development of more rapid means of communication. Any lawyer
practicing for the last twenty years or so has, too. We used to correspond by letters sent by mail. You'd
write a letter. You'd expect a response to it, maybe in a few days, or in a week or
so. And, if a letter did contain insults, at least it could not be forwarded with one or two
keystrokes to ten thousand persons on an email list.
Then facsimile machines became popular; everyone had to have one, because a fax
machine was a sign that you were among the elite, with the latest gadget. Those machines changed the
response time we had been used to with snail mail. You would receive or send a fax instead of a letter;
rather than expecting a response in a few days, everyone began expecting responses the same day.
Messenger services produced the same result.
Then email became popular. Instead of expecting a response in a few days, or even
one day later, emailers expect a response within an hour. Now, blog comments are nearly
instantaneous. The process lacks a pause that enables one to think first before writing.
The delay inherent in older forms of communication helped let the mind cool down a
bit before responding. That was a good thing. The forced pause ensured your brain was engaged before
your mouth or pen started moving. The Federalist Papers weren’t subject to the instant,
unthinking responses of modern email and blog commenting.
The tempo of the 1780s seems much different, too. The high velocity of modern
events seems to inspire copy-catting. Anyone who is aware of who D. B. Cooper is knows that he
inspired any number of airplane hijackings. One shooting on a college campus or at a high school is
followed by another shooting at another school. The anonymous authorship of blogs leads directly to
the anonymous posting of idiotic and sometimes vicious comments, followed by more comments of the
same ilk, followed by yet still more. Intelligent comments require thought before a response can be
written. Insults and slander do not; they just generate more of the same, like an echo.
Second, unlike so many of the posters these days, the authors of the Federalist
Papers had actually gotten past third grade. They could spell, punctuate, construct a sentence, and
didn’t use emoticons. Alexander Hamilton was the first Secretary of the Treasury. John Jay was
the first Chief Justice of the Supreme Court. James Madison was the fourth President of the United
States. Today’s lesser commenters don’t measure up to those standards.
The first Federalist paper shows its authors adhered to a standard that, unlike so
many blog comments today, recognized that the other fellow was entitled to respect. Hamilton
wrote:
I am well aware that it would be disingenuous to resolve indiscriminately the opposition of any set
of men (merely because their situations might subject them to suspicion) into interested or ambitious
views. Candor will oblige us to admit that even such men may be actuated by upright intentions; and it
cannot be doubted that much of the opposition which has made its appearance, or may hereafter make
its appearance, will spring from sources, blameless at least, if not respectable--the honest errors of
minds led astray by preconceived jealousies and fears. So numerous indeed and so powerful are the
causes which serve to give a false bias to the judgment, that we, upon many occasions, see wise and
good men on the wrong as well as on the right side of questions of the first magnitude to society. This
circumstance, if duly attended to, would furnish a lesson of moderation to those who are ever so much
persuaded of their being in the right in any controversy. And a further reason for caution, in this
respect, might be drawn from the reflection that we are not always sure that those who advocate the
truth are influenced by purer principles than their antagonists. Ambition, avarice, personal animosity,
party opposition, and many other motives not more laudable than these, are apt to operate as well
upon those who support as those who oppose the right side of a question. Were there not even these
inducements to moderation, nothing could be more ill-judged than that intolerant spirit which has, at all
times, characterized political parties. For in politics, as in religion, it is equally absurd to aim at making
proselytes by fire and sword. Heresies in either can rarely be cured by persecution.
There is a defense to be made for anonymity. See, for
example, McIntyre v. Ohio Elections Commission, 115 S.Ct. 1511 (1995),
which held that Margaret McIntyre's anonymous leaflet about school funding was protected by the
First Amendment. The court was careful to point out that the unconstitutional Ohio statute did
not limit itself to false or libelous statements. The dissent in McIntyre says
that disclosure of the author prevents fraud and "promot[es] a civil and dignified level of
campaign debate." 96 S.Ct. at 1536. After describing mudslinging, innuendo, and
demeaning characterization, the dissent, written in 1995, when the public's use of the Internet was
almost non-existent, forecast the future: "Imagine how much all of this would increase if
it could be done anonymously." The dissent concludes, saying that holding the Ohio
law unconstitutional on the "ground that all anonymous communication is in our society
traditionally sacrosanct, seems to me a distortion of the past that will lead to a coarsening of the
future." We have arrived at that coarsened future.
Blogs and blog postings are public debate. I think the answer lies in realizing
that those who use the Internet should observe some reasonable standards. And, like the
authors of the Federalist Papers, perhaps we should not assume that the adversary in every
debate is evil, or that to call someone a "troll" is argument rather than disparagement.
Clearly, it is disparagement. Branding inventors and patent owners who don't happen to be associated
with giants like Cisco is contrary to the spirit in which the Federalist Papers were written.
Modern bloggers and commenters need some standards. They should check their
facts, as well as their spelling and their grammar. They should be willing to stand behind what they say,
by disclosing their identities. They should moderate their rhetoric, and abandon the personal attacks.
They should think before they type gibberish on a keyboard. And finally, bloggers, leave your pages
online, just as if they were in a newspaper. Don't hide them from history's evaluation.
Endnotes
| 1 |
See the article by Ron Zapata in IPLaw360, March
13, 2008, and the Wall Street Journal’s Law Blog for March 14, 2008. |
| 2 |
http://www.businessweek.com/magazine/content/08_14/b4078075822107.htm?
campaign_id=rss_tech. |
| 3 |
http://blogs.cisco.com/news/2008/03/lessons_learnedcisco_updates_p_1.html. |
| 4 |
http://legalpad.typepad.com/my_weblog/2008/03/cisco-blogs-
to.html. |
| 5 |
See “Has Online Gossip Gone Too Far?” in
People, April 14, 2008. |
| 6 |
See http://www.komotv.com/news/17187351.html. |
| 7 |
See “Exclusive: Teen Talks About Her Role in Web Hoax
That Led to Suicide,” by Jonann Brady, on Good Morning America’s website, dated April
1, 2008. |
