Last October, New York state representative Dean Murray introduced a bill that essentially would eliminate anonymous speech online. The bill reads in relevant part:
21 A WEB SITE ADMINISTRATOR UPON REQUEST SHALL REMOVE ANY COMMENTS 22 POSTED ON HIS OR HER WEB SITE BY AN ANONYMOUS POSTER UNLESS SUCH ANONY- 23 MOUS POSTER AGREES TO ATTACH HIS OR HER NAME TO THE POST AND CONFIRMS 24 THAT HIS OR HER IP ADDRESS, LEGAL NAME, AND HOME ADDRESS ARE ACCURATE. 25 ALL WEB SITE ADMINISTRATORS SHALL HAVE A CONTACT NUMBER OR E-MAIL
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1 ADDRESS POSTED FOR SUCH REMOVAL REQUESTS, CLEARLY VISIBLE IN ANY 2 SECTIONS WHERE COMMENTS ARE POSTED.
The Bill suffers any number of issues. To begin with, it seeks to regulate interstate commerce. How can the State of New York impose this burden on content hosts that exist outside the state domestically or internationally?
Perhaps most importantly, and the issue upon which I will focus most of this post, the Bill clearly dismisses years of First Amendment jurisprudence. For, the United States Supreme Court has consistently upheld the right to anonymous speech in a variety of contexts. McIntyre Ohio Elections Comm’n, 514 U.S. 334, 357 (1995) (““[a]nonymity is a shield from the tyranny of the majority . . . [that] exemplifies the purpose [of the First Amendment] to protect unpopular individuals from retaliation . . . at the hand of an intolerant society.”); see also Buckley v. Am. Constitutional Law Found., 525 U.S. 182, 199 (1999); Talley v. California, 362 U.S. 60, 64 (1960).
This fundamental right has been applied to the Internet. Reno v. ACLU, 521 U.S. 844, 870 (1997) (there is “no basis for qualifying the level of First Amendment scrutiny that should be applied to” the Internet). See also, e.g., Doe v. 2themart.com, 140 F. Supp. 2d 1088, 1093 (W.D. Wash. 2001) (stating that the Internet promotes the “free exchange of ideas” because people can easily engage in such exchanges anonymously).
Because the First Amendment protects anonymous speech and association, efforts to use the power of the courts to pierce anonymity are subject to a qualified privilege. Courts must “be vigilant . . . [and] guard against undue hindrances to . . . the exchange of ideas.” Buckley, 525 U.S. at 192. Just as in other cases in which litigants seek information that may be privileged, courts must consider the privilege before authorizing discovery. See, e.g., Sony, 326 F. Supp. at 563 (“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.”); Grandbouche v. Clancy, 825 F.2d 1463, 1466 (10th Cir. 1987) (citing Silkwood v. Kerr-McGee Corp., 563 F.2d 433, 438 (10th Cir. 1977)) (“[W]hen the subject of a discovery order claims a First Amendment privilege not to disclose certain information, the trial court must conduct a balancing test before ordering disclosure.”).
The Bill also ignores the more recent developments in determining when to compel disclosure of an anonymous individual’s identity. Dendrite Int’l., Inc. v. Doe, 342 N.J. Super. 134, 775 A.2d 756, 760 (N.J. App. 2001); Doe v. Cahill, 884 A.2d 451, 456 (Del. 2005); Mobilisa, Inc. v. Doe, 170 P.3d 712 (Ariz. Ct. App. 2007).
Clearly, the Bill should not pass or be signed into law. And, the Bill along with its intent may appear ludicrous. However, we must discuss such proposed legislation to remind ourselves the importance of protecting the right to free speech and guard against overzealous legislators.