I don’t want to disturb JMTGst’s moment of zen, so I’m starting over.

CAAFlog started out as basically a public version of e-mails that the No Man, the Super Muppet, the Kabul Klipper, and I previously privately exchanged with one another. We have enjoyed expanding the conversation to include CAAFlog’s several readers and we have learned a great deal from you.

But, as you may have noticed, some comments on this blog have been creating hate and discontent lately (as, I’m sure, have some posts on this blog as well). Of course, creating hate and discontent isn’t necessarily a bad thing. How exactly did that Rumsfeld Rule go about if no one’s mad at you, maybe you aren’t doing anything? But I do have the overall sense that many comments on this blog have been causing hate and discontent gratuitously and I also have the general feeling — which I haven’t sought to confirm or reject through a serious historical content analysis — that the percentage of comments that can be fairly termed “useful,” while probably still high by most blogs’ standards, has declined over time.

Of course, hateful and discontenting comments may be related to the ability to comment anonymously and pseudonymously. Some people no doubt post inappropriate anonymous comments that they would not were their names associated with them.

The blogs that I read the most have responded to this problem in very different ways. After one of TNR’s blog contributors was outed for sock puppetting in 2006, Franklin Foer considered whether to require those posting comments to use their real names. TNR ultimately decided against disallowing pseudonymous comments. But while I used to regularly read comments on TNR’s The Plank, now I almost never do. The quality of the comments seems to have diminished markedly over time. And I don’t think that this reflects lack of fresh insights. Rather, the ratio of juvenile attacks to useful comments seems to have greatly increased. It is simply no longer worth the effort to look for the gold in an expanding pile of pyrite. So The Plank retains an open marketplace, but one with fewer customers if my behavior is typical.

SCOTUSblog approached the issue very differently. SCOTUSblog’s commentariat had always been a cut above most other blogs’. But responding to some inappropriate posts, starting in the October Term 2006, it disallowed pseudonymous comments. But even that proved insufficient and starting in April 2008, as explained here, SCOTUSblog stopped allowing comments on most, but not all, of its posts.

One particularly insightful commentary about SCOTUSblog’s change in policy observed that a blog faced with the problem of inappropriate comments has three choices:

(1) let it go uncorrected; (2) police the comments, an expenditure of time that few sponsors wish to make; or (3) turn off the comments, as SCOTUSblog has now done. If the sponsor chooses to let the problem go uncorrected, what typically happens is that thoughtful people stop or greatly reduce commenting, and the insult slingers come to dominate the comments. Choices (1) and (3) lead to the same result, then, that a useful medium is eliminated either de facto or de jure.

This perfectly describes my experience with my favorite blogs: I choose not to read The Plank’s comments while SCOTUSblog no longer has many comments to read.

What are the implications for CAAFlog? Many of the comments posted are extremely valuable. JMTGst made his first appearance on CAAFlog as a commentator rather than contributor and CAAFlog certainly wouldn’t be CAAFlog without JO’C. Some anonymous comments have also been invaluable, such as the one that corrected me when I misidentified NMCCA’s new chief judge. And the substantive give-and-take on jurisprudential issues is often interesting and sometimes enlightening. So following SCOTUSblog’s example by disabling comments would be a horrible idea.

My solution, instead, is to call for self-restraint in two ways. First, before posting an anonymous or pseudonymous comment, please ask yourself why you are hiding your actual identity. I realize that some individuals have legitimate reasons to do so. Heck, two of our contributors write under pseudonyms (or at least used to; I don’t think we’ve heard from Guert lately), and one of this blog’s and CAAFlog.com’s co-founders only recently outed himself. But if there is not some special reason to hide your identity, please don’t. I ask this for two reasons. First, a writer’s identity may provide important information to the reader. It could alert the reader to potential sources of bias or potential ulterior motives. Alternatively, it may enhance the credibility of a message. Second, attaching one’s name to a post may encourage some salutary self-censorship. While SCOTUSblog’s experiment with requiring posters to use their actual names didn’t succeed in eliminating the problem of “silly sniping,” as SCOTUSblog termed it, that problem was certainly seen less on SCOTUSblog than on most other blogs. Remain anonymous if you must, but please do not use anonymity as license to escape the normal bounds of civility.

My second call for self-restraint is in the content of posts themselves. I certainly don’t have standing to object to snarkiness, but please give consideration to whether a comment you’ve drafted will add value to the marketplace of ideas. Judge Cox once wrote, “I know that young judge advocate officers love witty exchanges, practical jokes, and a sense of the macabre in their humor.” United States v. Smith, 27 M.J. 242, 252 (C.M.A. 1988) (Cox, J., concurring). But there is a difference between wit — even biting or macabre wit — and insult slinging, “silly sniping,” and sophomoric asides. I’ll try to be more mindful of that difference and would appreciate it if others joined me in that effort.

Any other ideas to improve the quality of CAAFlog — either posts or comments — are most welcome.

26 Responses to “Another thought about blog comments”

  1. Cloudesley Shovell says:

    Volokh generates some robust discussion in the comments. The commenting community there seems to be generally self-policing, with off-topic, rude, “hate and discontent” and troll commenters either called out or ignored by the commenting community, which acts as its own marketplace of ideas. Volokh does reserve the right to delete comments, and publishes a common-sense comment policy on the website. (click on any comment thread and scroll to the bottom to see the policy.) I recommend CAAFlog take the same approach. Perhaps you could post a brief comment policy on the comments page, assuming the blogger software permits that.

    Blogging and commenting anonymously or pseudonymously is nothing new; the internet just makes it easier. Benjamin Franklin was doing it over 200 years ago as Silence Dogood. Other founding fathers engaged in the Federalist and anti-Federalist debates as Publius, Cato, and Brutus, among other names. Just as those folks had reasons to remain anonymous, so do many of the commenters here, who continue to actively practice before the military courts. We all know the judges read this blog; pseudonymous commenting permits a free flow of ideas in the comments without tainting anything. Thus, one may criticize a court’s opinion without fear that future briefs before the court will be discounted.

    Will the “marketplace of ideas” approach result in some intemperate comments? Sure. I’m not sure that’s necessarily a bad thing. One man’s intemperate comment may be another’s strong opinion. More troubling are the personal attacks and sniping, but if you allow comments at all, you’re going to occasionally get that.

    An alternative is to consider pre-approving commenters (if blogger software allows that), to limit your commenting community. At the end of the day, it is your blog. The rest of us are guests. This blurb from Volokh’s comment policy says it best, I think: “Here’s a tip: Reread your post, and think of what people would think if you said this over dinner. If you think people would view you as a crank, a blowhard, or as someone who vastly overdoes it on the hyperbole, rewrite your post before hitting enter.”

  2. Anonymous says:

    I post anonymously as I am in the reserve and have a day job. My clients there want me to be _their_ zealous advocate. I find there is extraordinarily little up-side to having personal opinions on much of anything when you have to please paying clients.

  3. Jason Grover says:

    I suspect some post as anonymous because they are actively litigating in front of a service court or CAAF and don’t want to put their name next to a perhaps perfectly reasoned, but critical discussion of a new case. For example, if Judge Wagner wrote an opinion I though was illogical, and I said so, I might have some fear that he would hold it against me. Now, in real life, I know Judge Wagner is not afraid of people disagreeing with him, but I can see where somebody might not want to attach their name.

    That said, I agree, the quality of the blog’s comments have slipped. I hope CAAFlog’s suggestions are well-taken. If the trend continues, perhaps another option would be for the contributors as a group to be more active in deleting comments. I have only done so once or twice, but I know No Man has as well. If all of us make more of an effort to just delete the inappropriate as we see it, rather than ignoring it, that might send a more effective message. It could be too time-consuming for any one person to be responsible, but if the group gets in the habit of removing comments, that might help if CAAFlog’s appeal to self-restraint does not.

    Lastly, I would like to respectfully disagree with CAAFlog’s characterization of the origins of this exercise. It was not emails freely exchanged among Klipper, No Man, myself, and CAAFlog. It was emails from me complaining that I lost yet another case or failed to get another grant, from Klipper on some entertaining trivia item, from No Man on Apprendi (it was before his Article 2 days), and from CAAFlog (about 25 times a day if something really got him excited) on everything. So while he makes it sound like an exchange of equals, it wasn’t quite like that.

  4. Gene Fidell says:

    I would ban anonymous/pseudonymous posts and comments. For Pete’s sake, ours is supposed to be a learned profession. We ought to be willing to put our names on what we write. Precisely what are people afraid of? (I’m referring to the anonymous reservist commenter.) There is plenty to say without harming client interests or bruising judicial egos. I am glad CAAFlog has raised this issue and I predict that within a year anonymity will be a thing of the past on this blog (although I’ll miss the creative pseudonyms).

  5. John O'Connor says:

    I’m not a huge fan of anonymous posting for two reasons: first, it allows really unfair and mean personal attacks that no one would say any other way than anonymously; second, it’s ard to engage in a discussion in the comments when 7 of the 9 posts are by “anonymous.”

    On the other hand, the JAG community is a small one, and I can see why a commentator would want to be able to give reasoned criticism without fear of retribution.

    Of the two problems identified above, the second problem could be fixed by allowing psedonymous posters, such as guert, cloudsley, and the other long list of dead seafarers. The first problem could be solved somewat by more aggressive deleting of nasty comments. There aren’t that many posts a day here, and most of the moderators probably read them daily, so it wouldn’t be that hard.

  6. No Man says:

    Marcus Fulton said…

    [Edited for content by Administrator]

    I agree with Cloudesley and Jo’C. I distinguish between pseudonymous posters, who have at least an on-line reputation to uphold, and purely anonymous commentators.

    I gave strong consideration to not posting under my own name, and that was long before I ever dreamed significant numbers of readers would ever find their way to this formerly quiet cul-de-sac in legal blogging. I probably post a lot less frequently than I would if I were anonymous. Most of the military justice issues that keep me awake nights involve my actual clients with ongoing cases, so I don’t feel like there’s a lot of room for my public freelancing on their issues.

    I’ll join Jason and [other contributors] in policing up gratuitous insults and the like.

  7. Marcus Fulton says:

    Very clever, No Man.

  8. John O'Connor says:

    No Man is a dick.

  9. Anonymous says:

    Active duty contributors who practice in military courts need to remain anonymous. Particularly where they would post an academic opinion, then take the opposite position in court, so that the client would not be prejudiced if the judge happened to read the blog.

    As far as civility goes, one of the best aspects of military practice is the generally excellent rapport between counsel. It seems to be less common in the internet though.

  10. No Man says:

    John O’Connor said…

    [Edited for content by Administrator]

    No Man is a [one of the best Associates I have ever worked with. He derves an immediate raise].

  11. Anonymous says:

    Some of us who post anonymously do so because we would hope that points we bring up can be debated fairly, or the information we seek could be found, without regard to possible bias from the poster. I (2nd anonymous, on the right, third row) personally wouldn’t have a problem posting under a real name, or even a pseudonym, if I felt my potential bias wouldn’t be taken into consideration in this forum. Unfortunately, given my failure to prevail at CAAF on my conviction, I know that wouldn’t be the case.

    Sometimes the opinions expressed here reflect my own (e.g., caaflog’s feelings regarding the proliferation of child porn/sex crimes in the services, or most things JMTG says) and sometimes they don’t (Jo’C's idea to allow accused the option to plead away appellate review), but I feel it is best to post anonymously, given the way others with convictions have been treated by some when they post. Granted, some of their comments (one poster in particular) are partly responsible for the current thread, and deservedly so, yet there is still an “institutional,” if a blog can be considered an institution, bias against former clients and current convicted, if their status becomes public knowledge.

    Most of the participants of this blog are capable enough to separate the wheat from the chaff in the comments, and they usually do. The inappropriate comments get removed, and the ones that don’t usually are ignored. It was worked fairly well for a couple of years now. I agree with Jason that having the forum mods take a more active role in policing the comments is a good solution. It has worked in the past here, and keeping vigilant will make this blog as useful and interesting as it has ever been.

  12. Christopher Mathews says:

    John O’Connor said…

    [Edited for content by Administrator]

    No Man is an island.

  13. Anonymous says:

    I’ve posted anonymously on occasion because while I no longer practice before a service appellate court nor CAAF, my career as an officer and judge advocate may be impacted by comments that might be negatively perceived by a senior officer. A senior officer who talks to other senior officers, or who might sit on a future promotion board.

    While none of the comments I’ve posted here are nearly as inflammatory as some of the actions I took as a zealous appellate counsel, this is still a different forum. My filings may be forgiven as merely zealous advocacy; however, the views here will be attributed to no one but myself.

  14. Anonymous says:

    I do not think we have a commentary crisis. In my estimation, less than 5% of comments are nasty, crude, sarcastic, or non-topical. And I agree with what C.S. stated about the long history of commenting anonymously. This forum is not a law review.

    Anonymity improves commentary because we must focus on the argument and not on the source. In addition, some of my opinions are tentative and perhaps even politically (or “militarily”) incorrect – I am testing them in the marketplace of ideas. If others slap that idea down by coming up with a good counter argument, then I am the wiser for it – but without suffering the reputational hazards of being labeled careless, stupid, prejudiced, unpatriotic, or whatever. It is those “unstated” judgments that can be far worse than a nasty comment on a website.

    Blogs are inherently oppositional forums. If a consensus existed that the status quo was great, then blogs would not be as interesting or necessary. In the legal forum, we could just read SJARs and judicial decisions and shake our heads in agreement.

    Plus, CAAFlog has a little bit more of a social-impact and policy spin than you get from reading cases or law review articles.

  15. Anonymous says:

    Another advantage to being able to comment anonymously is that you don’t have to get a Blogger account or remember your username and password.

  16. CAAFlog says:

    Of course even if a commentator didn’t have a blogger account, didn’t want to take the time to sign into the blogger account, or didn’t remember the blogger account password, the commentator could still put his or her real name in the text of the comment.

  17. Anonymous says:

    Which comments are the ones which generate hate and discontent? Except the one above about No Man being a dick, most of the comments I’ve read seem rather tame.

  18. Anonymous says:

    There is the post that mentioned the poster must be masturbating to a picture of Dick Cheney.

  19. Anonymous says:

    The Marine trifecta of embarrassing judicial choices is now complete: Bill Hollerich, Rodger Harris, and Bob Chester.

    Of course, the other services are not immune: the Navy has John Maksym and the Air Force had Jeremiah Mahoney.

    Seems pretty asinine to me…

  20. John O'Connor says:

    My comment about No Man is a joke, and No Man and anyone who knows one or both of us know it to be a joke.

  21. CAAFlog says:

    I think the No Man’s post after JO’C's post is proof positive that the No Man got the joke.

  22. Anonymous says:

    As the poster who made the terrible joke about masturbating to a picture of Dick Cheney, I’m sorry. That dark joke could work if I was teasing a good friend and poking fun at his arch-conservatism. But it doesn’t stand up well in writing. Once again, I’m sorry.

  23. Anonymous says:

    Trashing judges is clearly unprofessional.

    Arguing to statutorily eliminate an entire appeallate court system because it generates insufficient relief for appellants, apart from setting aside the occasional death sentence, is merely bizarre.

  24. CAAFlog says:

    Last anon demonstrates another problem with blog comments. I don’t know the extent to which the comment was meant to be kidding or whether it invites yet another explanation of the actual basis for the proposal to eliminate the Courts of Criminal Appeals and vest one appeal as of right in CAAF for every special and general court-martial conviction. But if last anon was making a joke, I would have expected one more set up line and the word “priceless” at the end.

  25. Anonymous says:

    I was kidding, except for the first part about the trashing judges being unprofessional. Tone of voice doesn’t come across I guess. I also note that there have been more “comments” about this post than most other posts, so either a lot of people are posting on this or a few people just like debating how to debate.

  26. John O'Connor says:

    “I also note that there have been more ‘comments’ about this post than most other posts, so either a lot of people are posting on this or a few people just like debating how to debate.”

    Or the most recent appellate cases aren’t all that interesting to a lot of us.