New York Bills Attempt to Peek Under the Mask of Anonymity

June 11, 2012
By

by Christopher Schiller

Anonymous political commentary has been the bedrock of our country’s discourse since before we were a country. Two identical bills, together the so-called Internet Protection Act, are in the legislative process of the New York State Senate and Assembly and aim to eliminate the ability to anonymously participate in political discourse and other discussions that take place on the internet. In their current form, the bills rip the mask off of legitimate, First Amendment protected speech in a vague and an ill-conceived effort to eliminate cyberbullying and “mean-spirited and baseless political attacks” (source: First Amendment Center).

Power of Anonymity

What would many of our comic superheros be able to accomplish without the protection of their anonymity? Imagine Batman without his cowl, trying to stop villainy while every bystander clearly recognized him as billionaire Bruce Wayne. How would Peter Parker be able to live his normal life and go about his day as a geeky, awkward youngster if he were not allowed to wear a mask while fighting crime? Anonymity can be a powerful shield to allow much greater things to be said and done.

History of Anonymity

The ability to anonymously comment on the politics of the day is ingrained in the rights of free speech from the earliest days of our history. From the commentary of Benjamin “Mrs. Silence Dogood” Franklin, through the writings of “Publius” in the Federalist Papers, and on through the informant “Deep Throat” and his contributions to the Watergate investigations, the protection of anonymous speech has been invaluable in allowing the discussion of important aspects of governmental action without the worry of impending retaliation from the “tyranny of the majority” (John Adams, 1788 — a good friend and colleague of “Publius”).

Case Law Protections for Anonymity

As has been reported elsewhere, the U.S. Supreme Court has been giving strong protections to anonymous speech in recognition of its powerful and necessary place in public discourse.

“Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind. Persecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all….It is plain that anonymity has sometimes been assumed for the most constructive purposes….identification and fear of reprisal might deter perfectly peaceful discussions of public matters of importance.” – Justice Black, opinion of the Court, Talley v. California 1960

In 1995, on the case of McIntyre v. Ohio Elections Commission, the question of anonymous speech prompted Justice Stevens to write about a creator’s right to anonymity:

“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 his or 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.”

With such clear ties to the rights protected by the First Amendment, the courts hold any attempt at abridgment of anonymous speech to the highest level of scrutiny under which the proposed New York bills will surely shrivel.

The Bills as Written and Why They Are Flawed

Handbills are so 1990s. Today, much discourse, political and otherwise, takes place over the Internet. The senators and assemblymen behind the bills recognize this and have focused their efforts on an attempt to “amend the civil rights law, in relation to protecting a person’s right to know who is behind an anonymous internet posting.” (S6779-2011 Memo) The trouble is that the far too simply written text of the bills, Assembly Bill 8688 and Senate Bill 6779, woefully misses the marks aimed at by the authors and supporters. They define “anonymous posters” as anyone who posts a message to a web site. And, by the vague terms of the bill, the trigger can be pulled by anyone requesting that a website administrator remove the comments by an “anonymous poster.”

Most disturbing to me is the level of privacy that is required to be exposed by the poster in order to retain the posting. You would be required to reveal and confirm your legal name and home address just to keep your comments online. How likely is anyone to comment on anything of importance or sensitivity if that specter of harsh spotlight is hanging over every utterance? Consider a victim of domestic abuse posting her anonymous thoughts and concerns on a community support site only to be forced to reveal who she is and where she currently lives.

The backers claim the bills are only intended to provide protections against anonymous cyberbullies and political attacks but there are already ways of revealing the names of anonymous internet users if they have been shown to go too far in both criminal and civil courts, as exemplified by the multitude of John and Jane Doe lawsuits filed by the likes of the RIAA and others in pursuit of those parties behind actual questionable conduct. The goal the bills’ backers seek is already achievable by laws currently on the books without a huge attack at clearly protected First Amendment speech. Their attempt at creating a law that challenges that Constitutional protection fails strict scrutiny, seeking only “reasonable protection” from anonymous posters. (from S6779-2011 Memo on the proposed bill). And they assume a “right” to know who is behind an anonymous posting, but provide no basis for this supposed right nor evidence of its existence.

If the bills stand as written and make it to law, we could live in a world where Superman may be able to save Metropolis but he could only blog about it as Clark Kent, and then only if he gives his home address. Wouldn’t the villains in the comic world love that kind of leverage? What about those in the real world?

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Christopher Schiller is an independent, New York attorney whose practice focuses on copyright, entertainment, international art and media law. His diversity of personal and professional interests allows him to bring a broad perspective to the questions he’s asked to answer. He can be contacted at chris@christopherschiller.com.