The world of online public discourse has had its darker side for some time. One of the more unpleasant aspects is the act of trolling: posting inflammatory messages with the deliberate intent of provoking readers into an emotional response. But when public officials get involved in this juvenile act, it can become really messy.
That’s what happened when a small cadre of misbehaving prosecutors posted anonymous comments relating to the allegations of corruption against former New Orleans Mayor Ray Nagin on the Times-Picayune website. One post about Nagin read, “You three stooges wrought upon this city one disaster after another.”
Ultimately, the source of the comments was discovered and called out in a blistering 129-page ruling by U.S. District Court Judge Kurt Engelhardt that overturned convictions in two unrelated cases. Not surprisingly, defense attorneys were able to use the prosecutor’s misconduct to win a reprieve in Nagin’s corruption trial.
This act of trolling, described as an “on-line 21st century carnival atmosphere” in Judge Engelhardt’s ruling, did not serve the interests of justice. But it did add to the growing litany of complaints about online commenting in general and raises concerns when public officials get involved in the act.
Some media outlets have shut down commenting completely, including Popular Science, which called them bad for science because “a fractious minority wields enough power to skew a reader’s perception of a story.” Notably, The Huffington Post, which has garnered more than 260 million comments in its eight-year history, ended anonymous commenting in an effort to raise the civility of online discourse. Others, including media and government sites, are moving commenting and discussions to their social media accounts, where commenters cannot be anonymous and the discussion can be moderated in an environment separate from where the content appears.
Chris Horner, a Washington attorney and senior fellow with the market-oriented Competitive Enterprise Institute, has been fighting anonymity, obfuscation and deception by public officials for years. He says the trolling prosecutors not only “angered a federal judge in a criminal case, which is never good, they also violated the Federal Records Act” because their online comments were directly related to active cases on which they were working.
Horner says adopting false online identities is still relatively rare, but reflects what he sees as an increasingly widespread willingness to avoid official channels to do official business. It may be an unintended consequence of moving “government over to private email accounts, private computers and even privately owned and managed servers,” says Horner, but it “plays into the hands of those whose intent is to avoid detection.”
Horner recently sued the federal Environmental Protection Agency for its failure to disclose information about thousands of nonpublic email accounts used by the agency. In his experience with public agencies from school boards on up to federal agencies, he sees deliberate efforts to make all or parts of public records hard to find and, harder still, to hold accountable the people who created them.
Horner says he has no problem with privatization. But in the three states where he has active cases, he sees evidence of attempts at “deliberate deception” by people who should know better. Try as they might, Horner says, “My BlackBerry made me do it” is not a legal defense.