[IRP] [governance] Declaration of Internet Rights by 15 Chinese intellectuals

[Paul Lehto]

On 10/11/09, Rebecca MacKinnon <rebecca.mackinnon at gmail.com> wrote:
> http://rconversation.blogs.com/rconversation/2009/10/happy-internet-human-rights-day.html
>
> *Internet Human Rights Declaration
> Issued by 15 Chinese Intellectuals*
>
[snip]> 7. Netizens? freedom of speech encompasses a right to express themselves
> anonymously. Anonymity enables some authors to express their opinions in
> ways that best suit their needs. This legal right should be respected as
> long as an anonymous author is expressing his views in accordance with legal
> and constitutional requirements.


I am a party to internet discussions among top election law scholars,
lawyers and professors with a concentration in the United States but
with worldwide participation.  What I'm about to say is not a
prediction but an accurate characterization of what is actually
happening right now, which seizes upon principle 7 above and attempts
to expand it in a way that I believe is highly damaging to democracy,
namely:

Taking arguments and precedents from anonymous internet speech cases,
which there have been a good handful recently upholding anonymity even
in cases of defamatory speech posted on the web, scholars and lawyers
sympathetic to and working for wealthy sponsors are arguing that they
must have the right to contribute to political campaigns anonymously,
without anybody ever finding out who is behind the political campaign.
 This takes the anonymous speech/whistleblower protections envisioned
above and harnesses it as a force AGAINST transparency and
accountability.

Because the people, the voters, are the sovereign entity (like a king
is the sovereign in royalty) when they are voting, this idea is
equivalent to asserting that people could appear in front of the king
and the king would have no right to know who is advising them/lobbying
them or "whispering in the king's ear" as it were.  Obviously, if the
people are the sole source of political legitimacy or ultimate power,
in this specific context, UNLIKE the context of web-posted internet
speech, the sovereign voters should clearly have the right to know and
evaluate who is talking to them. If they don't have that right and
power, they aren't really being treated as the sovereign they're
entitled to be.

I don't see any problem with the principle #7 regarding anonymous
speech if the scope of that anonymous speech is restricted.  But I
wonder if that principle can be kept within a reasonable scope.  It
can be if everyone remembers that elections are extraordinarily unique
and that every voter wears a different "hat" -- the sovereign hat of
the voter, as opposed to the normal hat in non-voting situations of
being a subject of the law, having to obey it whether we know what it
is, or not.  But since the fundamental distinction between people
acting as voters and when they act as normal citizens is all too often
forgotton, underplayed or ignored, I do have concerns that this
principle would be seized upon and then spill over into areas into
which it doesn't apply.

Actually, I don't have "concerns" about that, it's really happening.
I'm making an observation.

This observation reminds of the aphorism that one ought not to act
unless the principle of that action is something the actor would wish
to become a universal law.

Paul R Lehto, J.D.
P.O. Box #1
Ishpeming, MI  49849
lehto.paul at gmail.com
906-204-4026