The rally of the alt-right in Charlottesville, Virginia—a motley crew of white supremacists, neo-Nazis, Ku Klux Klan types and anti-Semites—took many people by surprise. It horrified millions of people, who thought that a small, dying breed of elderly rednecks constituted the “alt-right” and the neo-Nazi fringe. But the alt-right too was in for a shock. The men chanting hateful slogans learned a lesson about modern society. They learned that it is hard, and maybe impossible, to stay anonymous in this day and age. They learned, too, that a person who is outed publicly as a neo-Nazi or white supremacist will sometimes pay a heavy price and suffer serious consequences.
Privacy in the Twittersphere
A reader might question the word “anonymous.” Marching in public and shouting a slogan, in full view of people: how can this be “anonymous?” Of course, in a sense it is not at all anonymous. It is public; but still, do you expect to be photographed or filmed, marching in a parade? Do you expect your image to be captured and disseminated so that, in a sense, it can never be forgotten? Worst of all, do you expect that millions of people, far away from the parade, will see you—and will know your name, some of your personal details, and will be able to recognize your face?
Yet this is what happened. A Twitter user (writing under the handle @YesYoureRacist) has been using his platform since 2012 to expose racism. In the wake of the Charlottesville event, @YesYoureRacist went into overdrive, posting pictures and asking followers to help identify the men who attended the rally: He wrote, in the first of these requests (posted at 11:43 a.m. on August 12): “If you recognize any of the Nazis marching in #Charlottesville, send me their names/profiles and I’ll make them famous #GoodNightAltRight.”
In the age of social media, crowdsourcing works. Several individuals who appeared in news photos of the so-called Unite the Right rally were identified. Followers of the @YesYoureRacist account grew from 65,000 before the rally to over 300,000 just a few days later. One of the marchers identified was fired from his job at a restaurant in Berkeley, California. Another left the college he was attending, Boston University, because of the negative publicity. Ironically, men who had gone to a rally to express their deep and hateful prejudices against other groups, were now complaining that people, who did not know them as individuals, were judging them unfairly. A student at the University of Nevada whose image was captured in one of the most-shared photos from the rally, and who writes in his Twitter bio that he is a white nationalist, told CNN that he hoped “the people sharing the photo are willing to listen that I’m not the angry racist they see in that photo.”
This crowdsourcing method is hardly perfect. It makes mistakes. Some of the identifications were just plain wrong; and @YesYoureRacist issued at least one correction. On another site, an assistant professor at the University of Arkansas was misidentified; he did resemble, more or less, one of the men carrying torches in Charlottesville; but he was home in Arkansas at the time. There were death threats all around—for the men at the rally who were identified, as well as for the owner of @YesYoureRacist. The photos led one father to issue an open letter to his son, a white supremacist, explaining that the son is not welcome at family gatherings or in the family home unless he renounces his “hateful beliefs” and his conduct in support of those beliefs. The outing process also revealed connections between the men at the rally and various conservative Republican politicians.
Under Twitter’s rules of service, users are permitted to “name and shame” anyone; but they may not reveal private information (home address, phone number, social security number, etc.). And no threats. Punishing white supremacists for their hateful beliefs, so long as it is not done by the government, raises few if any legal issues. A private employer is generally free to fire workers for any non-discriminatory reason, and white supremacists are not a protected class under civil rights law. No federal law protects employees against adverse action based on political affiliation. Some states, however, do restrict the ability of employers to fire people because of their political affiliation or activities (many of them are listed here), but this sort of rally was not expressly (or even subtly) political. A few states protect lawful, off-duty conduct more broadly, and some such laws could be interpreted to protect against retaliation for attending an off-duty rally or protest. There has been talk in recent years about whether employers should or could (legally) make hiring and firing decisions based on what workers or applicants have done or said on social media accounts. Some employers make workers or applicants turn over passwords to these accounts, so that the employer can monitor them, and search their content. But those supporting broader employee rights are unlikely to use the case of fired Nazis as their lead example—or to urge change on behalf of these people.
Privacy, Group Affiliation, and the Horizontal Society
Social media and crowdsourcing are both examples of what we could call the horizontal society. Authority in traditional society is vertical; parents and children, teachers and students, rulers and subjects. In a horizontal society, peers, friends, people on the same level, people who share your interests, or your religion or politics, become more significant (of course, vertical authority, though it may gradually weaken, is still quite strong). The social media and, indeed, modern communications in general are powerful forces that strengthen the horizontal society. They permit the rapid formation of groups—groups made up of people who had been strangers before—who have something in common, or who have a common goal or destination in mind. When President Trump issued his infamous immigration ban, directed at a group of Muslim countries, protest groups sprang up overnight. Crowds of people got in touch with each other, made plans, and rushed to airports, with banners and slogans; lawyers materialized almost out of thin air; a mass movement appeared with incredible speed. The gangs of the alt-right in Charlottesville were recruited in a similar way. The same for the crowds of counter-protesters.
In a free society, among the many choices people have are choices about what to keep secret and what to reveal, and to whom. This can be a very personal, very individual matter. Some people would not tell anyone how much money they make, even if you tortured them on the rack. Other people are proud to brag about their wealth. Most people hide their naked bodies from the world, and reveal it only during sex or in the shower. Members of a nudist colony have a different take on the subject. Privacy is both a legal and a social issue. We have the right to choose the degree of privacy we want (within limits). You can keep a diary. You can plaster the most intimate facts about yourself on Facebook or the like. You can go on Judge Judy’s program or other “reality” programs and tell the whole world about your problems and your complaints. Or you can keep your secrets close to your vest and avoid any and all use of social networking.
The Loss of Anonymity in the Technological World
Most people on balance value their privacy. They also value a degree of anonymity. At home, we have a high degree of privacy. Home is the place where you can walk around in your underwear. Main Street is not that kind of place. On Main Street, you have much less privacy than at home. But you can and do have anonymity, a kind of privacy in the midst of strangers. In crowds, on busy streets, in the aisles of supermarkets, or strap-hanging on buses, we are part of an anonymous mass. Everybody can see us, but we are still, in a sense, invisible. And most people like it that way.
Anonymity is a value which the legal system, for the most part, does not recognize explicitly. In Talley v. California (1960) the Supreme Court struck down an ordinance of the city of Los Angeles that made it a crime to distribute any “hand-bill” without the names and addresses of the sponsors. Justice Tom Clark wrote a vigorous dissent. The Constitution, he said, says nothing about “freedom of anonymous speech.” The majority, on the other hand, had pointed out that “anonymous pamphlets…have played an important role in the progress of mankind” and that even the Federalist Papers were published under pseudonyms. Rules about the privacy of tax returns, medical records, and the like protect privacy, but they also, in a way, protect anonymity.
Most people take anonymity for granted. They feel they can live anonymously most of the time, even when they are “in public,” walking down the street, sitting in a movie theater, or buying groceries. Nobody really sees them. Today this is no longer true. We now live in what we might call a surveillance society. Millions of cameras watch us in various settings. Cameras on the street see us enter a bank, or a courthouse, or even simply getting on a bus. At airports, we have to go through security, sometimes electronic security. The amount of surveillance in societies obviously varies from place to place. London alone has millions of surveillance cameras. On the whole, people do not seem to mind. They assume that nobody is actually watching these films and that only in the case of some kind of crisis or crime will the human eye rest on these tapes. They also assume that the tapes get erased, after some reasonable period of time. It is not clear that these assumptions are correct.
Anonymity is vanishing in other contexts, too. In the past, when you went (for example) to buy food in a grocery store, you were basically anonymous. This was especially so in a large supermarket, serving thousands of customers every day. But now scanners are recording the stores you visit. Hidden machines are recording all our preferences. Amazon tells you what books they think you want to buy based on your history of buying. When you pay for anything with a credit card, that fact gets noted, stored, available for companies—and government?—to use.
A Right to Be Forgotten?
People also feel a right to something else, something rather vague, which we could call the right to evanescence. The right to have things, words, actions forgotten or expunged. The right, as it were, to have the tapes erased. If you march in a parade, protesting something or other, you expect a certain amount of anonymity, at least in a large enough parade. If you go to a rally, you expect to merge into the crowd. A video camera, focused on the parade or the rally, violates this expectation. It might make some people queasy. It impairs their anonymity. It also impairs their feelings about evanescence. Most of what we say or do in our lives is soon gone with the wind. Memories fade. Images vanish. Our todays wipe out our yesterdays. Would we really like it, if a giant camera recorded everything we did, all day, every day and kept these images forever, and if our families, or businesses, or the government, could access these films and replay them whenever they liked?
The computer age is a deadly threat to any right to be forgotten. Even email, we are told, is indestructible. People think the “delete” key wipes out messages. Apparently they are wrong. Our emails get stored somewhere, somehow, mysteriously, in some strange, magical cloud or storage bin in the sky. And stored there forever. And what is worse, retrievable somehow, at least by people who know how to do such things.
American law ignores, on the whole, the right to forget, and to be forgotten. Not entirely, to be sure. Juvenile misconduct can be expunged from the records when the young person reaches the age of 18. Transgender people can, in some states, redo their birth certificates. European law has gone much further; and has actually recognized a kind of right to be forgotten. To be more specific, the courts have given people the right to demand the removal of certain items from Google and other search engines. There are procedures for doing this, and thousands of people have taken advantage of this right.
German law, for example, has been especially sympathetic to people who want to erase the past. Some cases have even taken seriously demands by criminals who (as the saying goes) have “paid their debt to society” and who then ask for the right to have their crimes forgotten; they want to keep their names out of the public eye; they want the right to let the past be truly over for them. A Bavarian actor, Walter Sedlmayr, was murdered in 1990. Two men were convicted of the crime, imprisoned, and then released on parole. In 2009, one of the men hired a law firm (with the wonderful name of Stopp and Stopp), to bring an action that would force Wikipedia to delete any mention of the man’s name, in their article about Sedlmayr. So far, the claim has been unsuccessful in the German courts, but the courts did take the claim seriously and stopped far short of making any sweeping rejections of his or similar claims.
In certain of the European cases, the courts talk about a “privacy” right, or rights to protection of the “personality.” But clearly what is meant is the right to be forgotten. So far, the right to be forgotten, even in Europe, is fairly limited. It is not clear what can and cannot be expunged, and what should and should not be expunged.
The individuals who took part in the Charlottesville rally were despicable people, expressing dangerous and reprehensible ideas. They deserve our scorn and disgust. But do we want to punish them, and how? And on what scale? Mostly, these were young men. Hopefully, at least some of them will change their minds. A few of them might have already done so. Is society better off if we “out” them, all of them, and let millions of people know who they are, what they have done? Should they all lose their jobs?
Life like politics makes strange bedfellows. These neo-Nazis and other members of the alt-right, who flocked to Charlottesville, are a more maligned version of those young people who indulged in “sexting,” or sinners who reformed and recanted, and, more generally, with all of those who would like to move on and let the past bury its dead. Should we respect their wishes? Or, more to the point, should the law protect their wishes?