Anonymous Electronic Speech

August 10, 2008, 9:00, 10:25 a.m.

[Note: The "Sexual Assault Update," July 19-August 8, 2008, blog entry remains at its former location; however, any updates to it following August 8, 2008, will be found, along with the blog entry as of August 8, at a new Web site, Nicholas Johnson, "University of Iowa Sexual Assault Controversy -- 2007-08."]

Deliberately mean spirited anonymous comments are finding their way into those newspapers' Web sites that permit readers to post remarks about the online versions of their hard copy stories.

A student directed me to a lengthy New York Times take on "trolling." Mattathias Schwartz, "The Trolls Among Us," New York Times Magazine, August 3, 2008.

This morning the Register turns the inquiry on itself. Rekha Basu, "Spewing Venom; Does Online Anonymity Enhance Valuable Forum, or Encourage Posts that are Rude, Crude, Hateful?" Des Moines Register, August 10, 2008, p. OP1, online as "Stop spewing online venom." She sums up:

As I see it, these are newspapers' alternatives:

1. Do nothing. Continue to block posts that break the rules and let the process regulate itself, so people either become less sensitive or speak out more. The danger is that the civil ones get driven away.

2. Add staff to screen all posts in advance and monitor or moderate discussions - not likely given economic realities.

3. Get rid of newspaper-sponsored chats altogether - a drastic and undesirable move, since they do provide a valuable public forum.

4. Pass new laws to prosecute cyber bullies, like one proposed by Rep. Linda Sanchez of California, making it a federal crime to send a communication with intent to cause substantial emotional distress. That could be hard to determine, and enforce.

5. In my view, the best, most realistic approach, and the one most in keeping with journalistic standards, is to gradually start requiring people to provide their names, and begin matching those to e-mail addresses. It's a safe bet many would stop lobbing missiles in stealth and start being more civil, and the conversations would improve.

I am going to save my own discussion of these issues and options for the Law of Electronic Media classroom this fall -- with, perhaps, some comments here thereafter.

Meanwhile, here are some comments from a family member, entered in another blog, in another context, this past February -- followed with some of his quoted source material:

While it can certainly be abused, the case for anonymity is very strong.

The First Amendment prohibits "abridging the freedom of speech". It certainly does not proscribe anonymous speech or 'pseudonymity'. In fact, "...all of the Federalist Papers were signed by Publius, a pseudonym representing the trio of James Madison, Alexander Hamilton, and John Jay ."[1]

Personal attacks aside, I see no reason why knowing a person's identity is truly important. Even if they claim they are using their real name, how would we know? Chances are, we wouldn't know them anyway. In addition, it is always possible for a person to post as someone else -- anonymity is certainly preferable to that.
Newspapers and private forums certainly have the right to require that people identify themselves, but it seems to me that knowing the identity of every poster is outweighed by the chilling effect it would have. Sure there will be 'trolls' and others who abuse their anonymity, but their posts can be reported to a moderator and deleted, and they can be banned if necessary.

If all online forums required absolute full disclosure of identity, there would be very little online activity. After all, these days just a first and last name is enough for almost anyone to learn your whole life history including your address, phone number, and a map to your house including nice aerial views. Granted, the chance of anything bad happening is slim but why take the chance? Some (reporters, public figures) do -- more power to 'em -- but I certainly wouldn't force anyone to, or insinuate that their opinion doesn't count as much because they post anonymously. After all, many people, businesses and political campaigns rely on polls which are generally anonymous.

It seems to me that the best alternative is to leave it up to the individual.

Quotes and Source Material

"...some users and privacy activists like ACLU believe that Internet users deserve stronger pseudonymity so that they can protect themselves against identity theft, illegal government surveillance, stalking, and other unwelcome consequences of Internet use (including unintentional disclosures of their personal information...). Their views are supported by laws in some nations (such as Canada) that guarantee citizens a right to speak using a pseudonym.[1] This right does not, however, give citizens the right to demand publication of pseudonymous speech on equipment they do not own." [2]

"Pseudonymity is an important component of the reputation systems found in online auction services (such as eBay), discussion sites (such as Slashdot), and collaborative knowledge development sites (such as Wikipedia). A pseudonymous user who has acquired a favorable reputation gains the trust of other reputable users. When users believe that they will be rewarded by acquiring a favorable reputation, they are more likely to behave in accordance with the site's policies." [3]

From the EFF:

"Many people don't want the things they say online to be connected with their offline identities. They may be concerned about political or economic retribution, harassment, or even threats to their lives. Whistleblowers report news that companies and governments would prefer to suppress; human rights workers struggle against repressive governments; parents try to create a safe way for children to explore; victims of domestic violence attempt to rebuild their lives where abusers cannot follow.

Instead of using their true names to communicate, these people choose to speak using pseudonyms (assumed names) or anonymously (no name at all). For these individuals and the organizations that support them, secure anonymity is critical. It may literally save lives.

Anonymous communications have an important place in our political and social discourse. The Supreme Court has ruled repeatedly that the right to anonymous free speech is protected by the First Amendment. A much-cited 1995 Supreme Court ruling in McIntyre v. Ohio Elections Commission reads:

********

Protections for anonymous speech are vital to democratic discourse. Allowing dissenters to shield their identities frees them to express critical, minority views . . . Anonymity is a shield from the tyranny of the majority. . . . It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation . . . at the hand of an intolerant society.

********

The tradition of anonymous speech is older than the United States. Founders Alexander Hamilton, James Madison, and John Jay wrote the Federalist Papers under the pseudonym "Publius," and "the Federal Farmer" spoke up in rebuttal. The US Supreme Court has repeatedly recognized rights to speak anonymously derived from the First Amendment.

The right to anonymous speech is also protected well beyond the printed page. Thus, in 2002, the Supreme Court struck down a law requiring proselytizers to register their true names with the Mayor's office before going door-to-door.

These long-standing rights to anonymity and the protections it affords are critically important for the Internet. As the Supreme Court has recognized, the Internet offers a new and powerful democratic forum in which anyone can become a "pamphleteer" or "a town crier with a voice that resonates farther than it could from any soapbox."

The Electronic Frontier Foundation has been involved in the fight to protect the rights of anonymous speakers online. As one court observed, in a case handled by EFF along with the ACLU of Washington, "[T]he free exchange of ideas on the Internet is driven in large part by the ability of Internet users to communicate anonymously." [4]

And:

"Against the backdrop of First Amendment protection for anonymous speech, courts have held that civil subpoenas seeking information regarding anonymous individuals raise First Amendment concerns”. Sony Music Entertainment v. Does, 326 F.Supp.2d 556, 565 (S.D.N.Y. 2004). Accordingly, "the constitutional rights of Internet users, including the First Amendment right to speak anonymously, must be carefully safeguarded.” Doe v. 2themart.com Inc., 140 F. Supp. 2d 1088, 1097 (W.D. Wash. 2001).

Courts have determined that strict procedural safeguards must be imposed “as a means of ensuring that plaintiffs do not use discovery procedures to ascertain the identities of unknown defendants in order to harass, intimidate or silence critics in the public forum opportunities presented by the Internet." Dendrite International, Inc. v. Doe No. 3, 775 A.2d 756, 771 (N.J. Super. A.D. 2001).

“People are permitted to interact pseudonymously and anonymously with each other so long as those acts are not in violation of the law. This ability to speak one’s mind without the burden of the other party knowing all the facts about one’s identity can foster open communication and robust debate.” Columbia Insurance Co. v. Seescandy.com, 185 F.R.D. 573, 578 (N.D. Cal. 1999). Otherwise, “[i]f Internet users could be stripped of that anonymity by a civil subpoena enforced under the liberal rules of civil discovery, this would have a significant chilling effect on Internet communications and thus on basic First Amendment rights.” 2theMart.com, at 1093." [5]
While I can understand why someone who is the victim of a personal attack might want to know the identity of the person attacking them, it seems obvious that outlawing anonymity is not the way to go.

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1, 2, 3: http://en.wikipedia.org/wiki/Pseudonymity

4: http://www.eff.org/issues/anonymity

5: http://ilt.eff.org/index.php/Speech:_Anonymity


Other good links:

http://www.eff.org/issues/cyberslapp

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"The right to engage in anonymous communication is fundamental to a free society," said Staff Attorney Matt Zimmerman. "It's critical that judges resist attempts by anyone -- public officials especially -- to turn courtrooms into vehicles to harass and intimidate people out of speaking their minds. Thankfully, court after court has recognized that a plaintiff doesn't have an automatic right to pierce anonymity just because he doesn't like what someone has said."
http://www.eff.org/press/archives/2006/07/18

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"Powerful entities are learning that they can use the courts to silence their critics. When individuals choose to participate in a public debate anonymously, they should not have to worry that their identities will be divulged to anyone who doesn't like what they have to say."
http://w2.eff.org/legal/cases/RMC_v_Does/20010207_eff_pressrel.html

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"Anonymous speech is part of a vaunted American tradition that goes back to the Founders, who often published unsigned political pamphlets," said Megan Gray, Senior Counsel at the Electronic Privacy Information Center. "Yet on the Internet, citizens are forced to depend on Web sites or ISPs to protect their anonymity."

"Anonymous speech on the Internet lets people make criticisms that are difficult to state openly, and share information and support about topics that might be stigmatizing, such as addiction or sexual abuse," said Ann Beeson, Staff Counsel of the American Civil Liberties Union. "Unless online anonymity is protected, whistleblowers who want to criticize their employers, parents who want to criticize the principal of their children's school - and many others - may be afraid to speak out. That would be a loss for our country." Beeson pointed out that the Supreme Court has repeatedly found that anonymous speech is a right protected by the First Amendment.
http://w2.eff.org/Censorship/SLAPP/20020711_eff_pr.html

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"In their brief filed today, the ACLU and EFF argue that the Court should adopt the same test currently used to determine whether to compel identification of anonymous sources of journalists or members of private organizations. Under that test, the Court must first determine whether the person seeking the protected private information (in this case 2TheMart.com) has a genuine need for the information in the context of the case and cannot discover the information any other way. If so, the Court must then balance the harm to the anonymous speakers against the plaintiff's need to discover the identity of the speaker. Anonymity should be preserved unless the identity of the anonymous person is clearly shown to be of central importance to the case."
http://w2.eff.org/legal/cases/2TheMart_case/20010226_eff_aclu_2themart_pr.html

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