“Anonymity is a shield from the tyranny of the majority,” the U.S. Supreme Court wrote in the 1995 McIntyre v. Ohio case, holding that citizens have the right to distribute anonymous campaign materials. Civil libertarians and others who believe in the fundamental right to free speech hold such phrases dear, as well they should. And yet these days, when information can be communicated to millions in seconds, the degree to which this right to speak anonymously extends online is increasingly questioned.
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Instances of ugly Internet speech, often spewed by pseudonymous trolls whose only apparent intent is to wreak havoc on others’ lives, have become commonplace. Indeed, many online writers, a significant number of whom are women, have themselves been tyrannized — not by the majority, but by the vocal few whose anonymous speech is now the focus of this debate. I recognize that the terms “anonymity” and “pseudonymity” have different meanings. I use them both here, for purposes of brevity and also because the law protects both equally.
Speech like this can be hard to ignore and certainly makes it easy to lose sight of the power and value of anonymous speech, which has its roots in the founding of our country. Alexander Hamilton, John Jay and James Madison published the Federalist Papers under pseudonyms in an effort to persuade readers based solely on the strength of their words, without any bias that might have attached to their identity.
This post is part of a TBR Forum on online anonymity. You can also read:
An attempt to connect the societal and cultural value of the Federalist Papers with much of what we read online these days may strike some as outrageous. It is not. After all, the marketplace of ideas paradigm upon which the First Amendment is based places decisions about which messages have value on individuals, rather than on the state. The Constitution protects anonymous speech, posted online or otherwise, regardless of whether the speech is culturally cherished or commonly despised. As one scholar stated, “For better or worse, courts have compared the smearing Internet troll to the founding era’s pseudonymous pamphleteer and found them to share much in common.”
Nonetheless, no constitutional right is absolute. The law does not protect speech that goes beyond certain boundaries, such as defamation or harassment. Individuals and institutions may also impose limits on what speech they are prepared to endure, or the circumstances under which they are willing to participate in hiding the speaker’s identity.
It is precisely this fork in the road that marks the scholarly divergence on online anonymity. What should those limits be? How far should the law extend to protect anonymous online speech? What, if any, individual or cultural obligations exist to support the right to communicate online without revealing one’s identity?
SHIFTING LEGAL SANDS
Since McIntyre, statutory and case law has developed to force disclosure of identity in certain circumstances, but the law and how it applies is far from uniform or consistent. Generally, the debate has been between those who claim the right to anonymous free speech and those who assert competing rights, including victims of defamation, copyright or other intellectual property holders and law enforcement. These are often referred to as John Doe cases, in which the plaintiff seeks an order requiring an unknown defendant’s identity to be revealed so the case can move forward. The defamation cases apply some version of a balancing test that weighs the speaker’s First Amendment interests versus the strength of the claimant’s case and the necessity for disclosure. The stronger the plaintiff’s claim, the less likely a First Amendment defense will prevail, thus requiring an ISP (internet service provider) to divulge the defendant’s identity. These balancing tests are generally considered to be essential, especially because they are useful in weeding out cyber SLAPP suits whose intent is not to pursue a legitimate claim but instead to intimidate the speaker and chill constitutionally protected speech.
Many scholars believe that in early cyber SLAPP cases, courts placed the burden of proving the necessity for disclosure on the plaintiff. This view may be changing, however. Recent decisions refusing to quash a subpoena indicate that judicial deference to anonymous speech may be shifting, placing more of the burden on the speaker who must decide whether fighting the subpoena is worth it. This could be due to the increasing number of cases that involve truly shocking online speech. Lidsky suggests that judges may “come to believe that harmful anonymous speech greatly outnumbers valuable anonymous speech” and swing away from protection.
In any event, scholars agree that different courts have required varying indicia of proof that a suit is viable. This haphazard development of the law has many scholars suggesting that the U.S. Supreme Court will have to hear a case, hopefully soon. It also has resulted in a number of proposals for how the court should address the issue. Many of the calls for reform relate to cyber SLAPP lawsuits. For instance, one suggestion is that Congress should enact federal anti-SLAPP protection, and current state law should be strengthened to allow for stronger challenges to subpoenas intended to reveal a speaker’s identity. Another is to encourage websites to revise their Terms of Service agreements to specify a better process for challenging subpoenas.
ANONYMITY IN A DIGITAL WORLD
Most of the legal literature on anonymous speech shares one common assumption – the advent of the Internet has increased the complexity of these cases. The world today is vastly different from that in which Hamilton and Madison distributed their anonymous pamphlets. In fact, many scholars believe that the issues raised by online speech can no longer be justified by traditional justifications that protect anonymity. They argue that the gap between cultural practices regarding online anonymity and the law that applies to it is too large. In other words, the law – and the judges who interpret and apply it – are behind the curve and ill-equipped to decide cases in a way that recognizes cultural realities.
What are the traditional justifications for protecting anonymity? Clearly, anonymous speech has historical relevance and importance. A substantial argument in favor is that it is essential to the operation of democracy by giving all an opportunity to weigh in, without fear of financial or social retaliation, ostracism, or worse. It provides safety and protection for dissidents, whistleblowers and minorities. This is of particular importance to marginalized groups for whom anonymous speech is often the only safe way to speak out. Online anonymity can also guarantee privacy, another important constitutional consideration. To many cultural scholars, the right to engage in anonymous speech is a “precondition for crafting culture” because it generates spontaneity and creativity.
However, emerging research indicates that online incivility can have damaging consequences. Negative commentary has been shown to polarize users, sometimes to such an extent that it can change others’ perceptions of the story or article under discussion. Popular Science recently discontinued online commentary for this very reason. Concluding that online discussion has allowed scientifically validated topics to become “mistakenly up for grabs again,” they chose to disallow reader commentary altogether to avoid playing host to “the cynical work of undermining bedrock scientific doctrine.” Other research, however, indicates that the impact of anonymity on behavior is “highly variable and context-dependent,” making broad generalizations “difficult and risky.”
Certainly the ability to speak anonymously online can insulate and conceal those who should be held accountable or are otherwise deserving of scrutiny. Researchers who study the effects of online speech have found that it can have a “disinhibiting” effect that allows a speaker to feel safer from consequences than he or she actually is, or should be. As journalist David Sirota stated, “Knowing they are shielded from consequences, Internet trolls feel empowered to spew racist, sexist and other socially unacceptable rhetoric that they’d never use offline.”
The issue of consequences is an interesting and considerable problem. Online anonymity clearly contributes to the spread of defamation and harassment – and the increasing instances of this illegal behavior online may be woefully under-prosecuted. Thus, Sirota may very well be right – online speech is often without consequences, at least to the speaker. But the victims of harassment, unfortunately, have to live with those consequences every day.
The frequent lack of consequences has lead others to take matters into their own hands. In addition to Popular Science, the Chicago Sun-Times suspended reader comments last April, stating that it was developing a new system that would bolster “increased quality” while at the same time allowing them to “better police the worst elements of these threads.” (As yet, reader comments have not returned.) Reuters did the same regarding comments on news stories. Other online news organizations, such as the Huffington Post, decided to prohibit anonymous comments. The Idaho Statesman and others now limit online commentary to only Facebook account holders. Indeed, the Idaho Statesman FAQ page, which explains its policy, directs many questions to the Facebook website.
Another tactic some have taken is to expose the identity of trolls (sometimes referred to as “doxing”). In one particularly famous case, Adrian Chen of Gawker revealed the identity of “Violentacrez,” a Reddit forum moderator who often posted images of underage girls and “creepshots,” photos he had taken of women who were unaware they were his target and who was otherwise “one of Reddit’s most reviled characters” as well as a “beloved user.” Outing people who identify only under a pseudonym is a controversial act. The writers themselves justify the decision in various ways. Others disagree, or at least believe it’s not enough.
THE SIDE OF FREE SPEECH
As a civil libertarian, I generally come down on the side of free speech – at least with regard to any legal standards that would require an anonymous speaker’s identity to be divulged. Balancing tests should remain heavily weighted in favor of a First Amendment defense. However, I also have to come down on the side of civility. These days it seems we can’t open a newspaper or magazine without reading yet another horror story of online viciousness and bullying. Although I’m not comfortable with the practice of outing anonymous speakers, I have never had to endure being the target of one. Ultimately, I agree with Sady Doyle, who wrote in The Guardian, “Ending bigotry and sexual harassment is not as simple as selectively unmasking one or two perpetrators. It relies on all of us working daily to create a culture in which such behaviours aren’t tolerated. Harnessing internet outrage is much easier – and more immediately satisfying – than changing the attitudes of the culture itself, but it’s that longer, harder work that will save us all in the end.”
The views and opinions expressed here are those of the writer and do not necessarily reflect those of Boise State University, the Center for Idaho History and Politics, or the School of Public Service.