The ethical propriety of identifying by name students and faculty who have signed antisemitic statements or engaged in antisemitic actions is currently being debated. Opponents of such disclosure call it “doxxing,” as if that term ends the debate. But doxxing is a meaninglessly broad concept that must be deconstructed in order to give it any reasonable interpretation.
Condemnation was first directed at people who published the home addresses and private telephone numbers of individuals whose politics they disagreed with, occasionally including providing the names of children and the locations of their schools. Some doxxing involved disclosing the sexual preferences and other private information thought to be embarrassing.
But until the recent Israel-Hamas war, the accusation of doxxing has not been directed at those who have merely identified individuals who participated in antisemitic, anti-Israel or other bigoted activities.
The debate thus far has been over whether any kind of doxxing is ever permissible. Indeed, efforts have been made to get universities to ban all doxxing, and some schools have created special counseling offices to deal with the consequences of doxxing to students.
As a general matter, most doxxing is protected by the First Amendment. It would be unconstitutional for government-supported institutions to prevent the publication by some students (or the media) of properly obtained information about other students. The Constitution cuts both ways on this issue. It protects the protests, while also protecting disclosure of the protestors’ identification by the doxxers.
Beyond the constitutional issues are concerns about the ethical propriety of various kinds of doxxing. This has taken on added urgency in the age of the Internet, as the names of doxxed individuals are instantaneously circulated around the world, often generating insulting and sometimes threatening responses.
Little attention has been paid to the factors that might distinguish acceptable from unacceptable doxxing. Here are such some factors.
Does the nature of what the doxxers disclose go beyond mere identification of the individuals and the organizations to which they belong? There is a considerable difference between disclosing the mere identity of protestors and providing private information, such as addresses, phone numbers, names of children and sexual orientation. Though most such disclosures may be protected by the law, some deserve moral opprobrium.
A related distinction is between doxxing that poses a realistic threat of violence and that endangers career prospects, such as jobs, university admission or a political futures. The case for not disclosing the former is more compelling than the case for not disclosing the latter.
A third factor might be the role of government in either compelling or prohibiting disclosure. During the Civil Rights movement, some states actually compelled disclosure of the membership lists of organizations such as the NAACP. Now there are efforts to get the government to prohibit disclosure of the names of protestors. Others argue that the government should remain neutral, neither compelling nor prohibiting disclosure.
The ethical propriety of doxxing should not be a left-right issue. The same rule should apply to disclosing the names of right-wing protesters, such as those who marched in Charlotte or lawfully protested in front of the Capitol on January 6th, and left-wing protesters, such as those who call for Palestine to be “free from the river to the sea.” Yet some who would disclose the identity of the former seek to prevent disclosure of the latter.
It is a difficult question whether disclosure should depend on nonviolent but unduly harsh consequences to the person disclosed. In a recent case, MIT refused to impose public discipline — which would have required disclosure — on students who violated the rules of the university, but who reasonably feared that losing student visas would result in deportation. Some argue that the consequences should not be the concern of those deciding whether to disclose, since who might be deported is the proper business of other institutions, such as the State Department.
Applying these factors to the current situation, I believe it is generally appropriate to disclose the names of individuals who are active members of organizations that on October 8th — before Israeli troops entered Gaza — praised Hamas or blamed Israel for the murders, beheadings, rapes and kidnappings of civilians. It is also proper to disclose the names of students and faculty who are currently calling for the end of Israel. I plan to continue to provide the names and organizational affiliations of such antisemites and bigots, just as I would disclose the names of members of the Ku Klux Klan or the Nazi Party who praised lynchings or harassed gays.
If the result of such disclosure is that some law firms or other businesses refuse to hire such bigots, so be it. Individuals, whether students or faculty, should be held accountable for their advocacy.
Pursuant to the marketplace of ideas, there should always be a presumption in favor of full disclosure of all relevant information, including names. This presumption can be overcome by a showing that individuals reasonably fear violence if identified. There is little evidence that anti-Israel students and faculty whose names have been disclosed have been subjected to physical threats. People should be safe from violence, but not from being held accountable for their ideas.
Some pro-Palestinian protesters have themselves engaged in violence, threats, harassment and the denial of free speech. While doing so, they often wear masks or other identity-hiding face coverings. I’m not suggesting that universities should be compelled to identify them, but rather that it is ethical for decent people to try to learn their identities by legitimate means, and to disclose them.
Such disclosure should apply to pro-Israel advocates as well. Their names and organizational affiliations should be made public, and they should bear any legitimate consequences of their advocacy. There is little evidence that such advocates are denied jobs in the United States, though some may fear discrimination by universities or physical violence by anti-Israel extremists.
Everyone should be protected from physical violence, threats or harassment, but not from recrimination for their views. The open marketplace of ideas requires no less.
Alan Dershowitz is professor emeritus at Harvard Law School and the author of “Get Trump,” “Guilt by Accusation” and “The Price of Principle.” Andrew Stein, a Democrat, served as New York City Council president, 1986-94. This piece is republished from the Alan Dershowitz Newsletter.