The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Thanks to Eugene for inviting me to guest-blog about my new book, The United States of Anonymous: How the First Amendment Shaped Online Speech.
For more than a half century, U.S. courts have held that the First Amendment provides a right to speak and associate anonymously. Courts have applied this right to the Internet and found a robust—though not absolute—ability for people to control the identifying information they reveal online.
Anonymity is deeply rooted in the constitutional values and social norms of the United States. Anonymity has allowed speakers to communicate unpopular political viewpoints, whistleblowers to expose their employers' illegal schemes or ineptitude, and citizen journalists to document corruption and fraud. Anonymity is also employed for nefarious uses, such as defamation, persistent harassment, and online crimes.
The longstanding U.S. tradition of anonymous speech has enabled Americans to often separate their identities from the words that they communicate. In my book, I examine how the First Amendment protections, combined with technology that prevents identities from being associated with online activities, have created a culture of anonymity empowerment.
Anonymity is the "condition of avoiding identification," as David Kaye, the former United Nations Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, wrote in 2015. What does it mean to empower anonymity? Does anonymity empowerment simply mean allowing people to hide their names when they post thoughts online?
My conception of anonymity empowerment is broad. Anonymity empowerment allows people to control what, if any, details about their identity to reveal. It includes, but goes beyond, merely separating a person's name from that person's speech; anonymity empowerment includes the protection of details that could increase the likelihood of the speaker being identified.
The culture of anonymity empowerment includes both true anonymity, when no identifiers are linked to expression, and pseudonymity, when speech or activity is associated with a pen name that does not directly identify the author but stays with that person over time.
The book first explores the origins of the American right to anonymity, dating back to England and the colonies. The nation's Founders made their case for independence and the Constitution in part by circulating anonymous pamphlets and writing inflammatory newspaper columns under pseudonyms. With that history in mind, the U.S. Supreme Court has recognized a qualified right to anonymous speech, striking down laws that require the NAACP to disclose its membership lists and prohibitions on the circulation of anonymous political writings.
The book then examines how courts have applied these First Amendment anonymity values to the Internet. Beginning in the 1990s, companies tried to use the court system to unmask people who criticized their business practices on online bulletin boards (and, if the posters turned out to be employees, they often would be fired). Judges gradually developed a process, rooted in the First Amendment, by which they only would order online service providers to reveal identifying information if the plaintiffs had a particularly strong case and satisfied other requirements. The right to anonymity exists in some other countries, but is especially strong in the United States. These legal rights, however, are not the only protections for anonymity. For instance, Tor, based on a technology developed by the Naval Research Laboratory in the 1990s, allows people to protect their online anonymity. Technology such as Tor, coupled with the First Amendment anonymity safeguards, have fostered substantial protections for those who wish to separate their online words from their identities.
The book considers how these robust online anonymity protections shape everyday life in the United States. The culture of anonymity empowerment in the United States has enabled citizen journalists to challenge the powerful in ways they never would have been able to do under their real names. Anonymity also has been a tool in some substantial harms, such as people who ruin the lives of innocent people hiding enough of their identifying information to at least temporarily avoid prosecution.
Finally, the book contemplates how to continue to empower anonymity. The First Amendment addresses government intrusions on free speech; its anonymity protections, like the other First Amendment safeguards, generally do not restrict the voluntary actions of private companies. Some platforms require their users to operate under their real names. And technological advancements have not only led to anonymity protections, but also to increased surveillance by the government and the private sector, often making anonymity empowerment harder. Technologies like facial recognition and geolocation allow companies to have unprecedented access to information that often can easily identify a speaker. Thus, I argue that to continue the U.S. tradition of anonymity empowerment, lawmakers should supplement the First Amendment protections and anonymity technology with robust privacy laws that restrict the ability of private parties and the government to collect, use, and share identifying information.
I ultimately conclude that we must preserve and improve upon the culture of anonymity empowerment, even though the equities are more complex than ever. It is difficult to imagine the American conception of free speech surviving without robust anonymity protections. I do not argue for absolute anonymity protections; even if such a goal were achievable, in extraordinary circumstances we should pierce the veil of anonymity.
Given the wide range of online harms, it might be tempting to call for an end to online anonymity, such as by imposing real-name requirements that other countries have adopted. I agree with free speech expert Jillian York, who has called such proposals the "White Man's Gambit." LGBT teenagers, domestic abuse survivors, and other vulnerable groups often are the ones that rely most on anonymity and pseudonymity, York wrote.
The second post will examine the historical context for anonymous speech. The third post will explore one of the first cases in which the Supreme Court recognized a right to anonymous speech. The fourth post will describe how courts have applied anonymous speech rights to the Internet. And the fifth post will consider the future of anonymous speech, and the need for more robust privacy laws that incorporate anonymity values.