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Anonymity is a shield from the tyranny of the majority. — U.S. Supreme Court Justice John Paul Stevens in McIntyre v Ohio Elections Comm. (1995).

Ad for the Federalist Papers, written by James Madison, Alexander Hamilton and John Jay, under the pseudonym Publius (chosen by Hamilton). Published in 1787 .

Kentucky Bullies Free Speech Under the Guise of Niceness

Apparently upset about meanness on the internet, Kentucky lawmaker Tim Couch wants to legislate niceness with a law banning anonymous comments. Hmm… seems I’ve heard this logic before. Methinks Tim Couch, like a certain blogger in Arizona, is not good at winning arguments with those folks he can’t identify. So, he has come up with a plan — forbid anonymous comments on websites and blogs under penalty of a $500 fine ($1000 if you let other anonymous troublemakers shoot off their mouths).

Under Couch’s proposed law, anyone who posts online will have to first register and give the website owner their real name, address and email. Holy Big Brother Batman!

Anonymity and The First Amendment

The U.S. Supreme Court has ruled, on numerous occasions, that anonymity IS entitled to First Amendment protection, even on the Internet. The failure to attach your name to your speech does not make it worthless or cost you your right to say it, even if you say it on the web (unlike in some parts of Blogizona where anonymous commenters are prejudged and their speech downgraded. Could high heat and low humidity actually make one a dumb ass?) Ideas do not require an ID card under the U.S. Constitution.

In 2001, in Doe v. 2TheMart.com, a Washington District Court refused to require disclosure of anonymous persons who made critical comments about a corporation online. The court wrote:

The right to speak anonymously was of fundamental importance to the establishment of our Constitution. The right to speak anonymously extends to speech via the Internet. Internet anonymity facilitates the rich, diverse, and far ranging exchange of ideas. The “ability to speak one’s mind” on the Internet “without the burden of the other party knowing all the facts about one’s identity can foster open communication and robust debate…. The Internet is a truly democratic forum for communication. It allows for the free exchange of ideas at an unprecedented speed and scale. For this reason, the constitutional rights of Internet users, including the First Amendment right to speak anonymously, must be carefully safeguarded. (emphasis added and God Bless America)

A Hundred Bucks From Margaret

Take the case of McIntyre v. Ohio Elections Comm.. Margaret McIntyre was fined $100 for failing to sign her name to pamphlets she handed out at a school board meeting about school taxes. The pamphlets, printed on Margaret’s computer, purported to express the views of “Concerned Parents and Taxpayers”. The case went to the Ohio Court of Appeals who said the fine was justified under the Ohio law. Even the Ohio Supreme Court stuck it to Margaret. The case eventucally went to the US Supreme Court where Margaret was finally vindicated.

Justice John Paul Stevens, who wrote the Court opinion, pointed out that

Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind [citing Talley v. California (1960), which protected the right to distribute unsigned handbills urging boycott of merchants engaged in discriminatory emplyoment practices]. Great works of literature have frequently been produced by authors writing under assumed names. Despite readers’ curiosity and the public’s interest in identifying the creator of a work of art, an author generally is free to decide whether or not to disclose her true identity. The decision in favor of anonymity may be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one’s privacy as possible. Whatever the motivation may be, at least in the field of literary endeavor, the interest in having anonymous works enter the marketplace of ideas unquestionably outweighs any public interest in requiring disclosure as a condition of entry. Accordingly, an author’s decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment.

And this:

On occasion, quite apart from any threat of persecution, an advocate may believe her ideas will be more persuasive if her readers are unaware of her identity. Anonymity thereby provides a way for a writer who may be personally unpopular to ensure that readers will not prejudge her message simply because they do not like its proponent. Thus, even in the field of political rhetoric, where “the identity of the speaker is an important component of many attempts to persuade,” City of Ladue v. Gilleo, 512 U. S. ___, ___ (1994) (slip op., at 13), the most effective advocates have sometimes opted for anonymity. The specific holding in Talley related to advocacy of an economic boycott, but the Court’s reasoning embraced a respected tradition of anonymity in the advocacy of political causes . This tradition is perhaps best exemplified by the secret ballot, the hard won right to vote one’s conscience without fear of retaliation.

 

The Court went on to add that the inherent worth of speech, in terms of its ability to inform, does not depend upon the identity of its source. Duh. Nor is the danger of misuse a justification for banning anonymity. As Justice Stevens wrote, “Our society accords greater weight to the value of free speech than to the dangers of its misuse.”

The U.S. Supreme Court told the state of Ohio that it would not get a single Lincoln penny from Margaret McIntyre.

Fortunately, the proposed Couch bill would only affect Kentuckians. If passed, citizens of Kentucky will have to show their IDs to post a comment online, while others will not.

BTW, tonight begins a 7 hour HBO miniseries on John Adams. Perhaps Tim Couch oughta grab a Coke, a bag of popcorn and some Raisinettes (great with popcorn) and learn himself some history on what freedom is all about. Heck, even the Federalist papers were published anonymously. Had Mr. Couch been around to make the call, they would not have seen the light of day and we all might still be eating Sheperd’s pie.

[Author's note: Now, I realize the First Amendment may not apply to business blogs and websites (they are not government entities), but if you purport to espouse some Web 2.0 transparent notion of the free and open discussion of ideas, including dissenting ideas, and you prejudge and ban comments, solely based on anonymity, you are not promoting free speech principles. Face it, then, you are nothing more than an old school 1.0 minister of propaganda and pitchman. Aarf, I say.]

Sources: here. here (read the comments).

Related Post:

First Amendment Protects Anonymous Bloggers and Comments

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