Thursday, May 20, 2010

The "Right" to Anonymity and Free Speech Limitations

Jonathan Turley, author of Registering Publius: The Supreme Court and the Right to Anonymity, reports in

Pennsylvania Attorney General Tom Corbett Issues Subpoenas To Strip Anonymity From Critics that:
"Pennsylvania Attorney General Tom Corbett has subpoenas to learn the identity of two critics on Twitter who chastised Corbett for his “Bonusgate” investigation of legislative corruption. The tweets objected to Corbett’s handling of the trials of 25 former and current state lawmakers charged with using taxpayer dollars for campaign purposes....

The prosecutors insist that Signor Ferrari is ... a former legislative aide who was convicted on charges of theft of service, conflict of interest and conspiracy to commit conflict of interest. Corbett wants to show that ... is using a pseudonym to “deny responsibility for his criminal conduct and to attack and malign the investigative and prosecutorial process.”"
Anonymous speech online has opened up a real weakness in modern legal interpretation because maliciously false and/or libelous material posted to the Internet has a nearly unlimited life, creating a far greater danger to the reputation of persons targeted now than in the days when all that one had to fear was merely the printed word, where nothing was as old as yesterday's news.

"Libel today, gone tomorrow" was often the state of the art prior to the digital age. The libel wandered into the archives. Today on the Internet it is "libel today, still there tomorrow, for everyone to see". The damage that one can inflict on others is far out of proportion to the alleged free speech right involved.

Hence, courts must be much more severe in their treatment of online libel and/or the posting of maliciously false information than they have been up to now because the damage inflicted to the reputation of persons can otherwise be permanent. The alleged right to freedom of speech involved here is much smaller than the need to protect every person's right to be able to challenge libelous statements and defamatory utterances. It can not be that be criminals have greater rights than law-abiding citizens. Freedom of speech does not mean the freedom to libel or the freedom to maliciously publish false information. The rights of anonymous Internet posters can not be greater than the rights of online posters who reveal their true identities.

The theoretical standard is that "legal speech" is constitutionally protected, also if it is anonymous, though the Constitution does not explicitly say that. However, illegal speech has no constitutional protection and libeled parties should not be forced to have to move heaven and earth to obtain the identity of libelers or people who maliciously post false information. Quite the contrary, the criminal penalties for such criminals should be increased to create a deterrent to a breakdown of normal standards of discourse on the Internet. quotes Eugene Volokh, Professor of Law at UCLA, in the year 2009 about a case in which an Illinois politician sought to identify an anonymous poster who allegedly libeled her son during a hotly contested political election:
"[T]he case [in question in the respective article] serves as another reminder that online anonymity does not provide immunity against libel charges.

Individuals who libel or defame others online, anonymously or otherwise, are just as exposed to lawsuits as they are in the physical world and cannot expect First Amendment rights to automatically protect them."
We have posted about the topic of anonymity before at:

Anonymous Heinous Postings Directed at Two Female Yale Law School Students Lead to Revelation of Poster Identities : Free Speech Law in Need of Change

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