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Laughable Online Censorship Attempt Won't Last a New York Minute

Posted: 05/23/2012 10:00 pm

Republicans in the state government in Albany, N.Y., are attempting to pass a law that would ban anonymous comments on the Internet (to articles such as this one, or even to websites such as the one you're reading this on now). That clever login name you came up with? Sorry, you'll have to use your real name instead.

Luckily for all of us, this is never going to happen. Even if New York Republicans had their way, and actually passed their so-called Internet Protection Act, once it arrived in a federal court it would be tossed out in a "New York minute" (as they say).

This isn't just overconfidence in the judicial branch or civil libertarian smugness, either (although the "New York minute" bit is admittedly rather snarky). Legal precedent from only a few years ago already exists, which not only puts the First Amendment stamp of approval on online anonymity, it actually says that any attempt to uncover the identity of the commenter would be unconstitutional. And the case hinged not on political comments on a website but actual email spam. Political spam is protected free speech -- so how can website comments not be?

The case is Jaynes v. Virginia, and I wrote about it when the state's supreme court ruled on it, and again when the United States Supreme Court upheld the decision by refusing to hear the appeal. Back then, I wrote:

[T]his means that any technology which reveals the sender's identity for any type of communication that is political in nature is an inherent infringement of the sender's constitutional right to anonymous political free speech. And, therefore, anything that the sender did to technologically mask their identity -- even if it broke other laws on the books -- is not just legal, but the laws themselves which prevent this from happening would hence be illegal.

Because when some activity is said to be protected free speech, then the First Amendment trumps any legal attempt to infringe on that right. And if anonymous political speech -- no matter how scurrilous -- is such a protected right, then the government (at any level) simply cannot pass any law limiting it. For any technology. For any reason.

Think this is an overbroad legal interpretation? See for yourself, from the text of the state court's ruling overturning the Virginia statute that Jaynes was convicted of violating:

[Having a registered online identity would] "necessarily result in a surrender of [the spammer's] anonymity." The right to engage in anonymous speech, particularly anonymous political or religious speech, is "an aspect of the freedom of speech protected by the First Amendment." By prohibiting false routing information in the dissemination of emails, [the law Jaynes was found guilty of] infringes on that protected right. The Supreme Court has characterized regulations prohibiting such anonymous speech as "a direct regulation of the content of speech."

. . .

That statute is unconstitutionally overbroad on its face because it prohibits the anonymous transmission of all unsolicited bulk emails, including those containing political, religious or other speech protected by the First Amendment to the United States Constitution.

. . .

[The law that was overturned] would prohibit all bulk email containing anonymous political, religious, or other expressive speech. For example, were the Federalist Papers just being published today via email, that transmission by Publius would violate the statute.

The United States Supreme Court refused to take the case, meaning the Jaynes precedent is the clearest and most recent ruling of its type on the constitutionality of protected free speech. And it just takes a glance at the legal reasoning to see how fast the New York law -- should it pass -- will be declared unconstitutional.

The Virginia court brought up an important point -- one that is the true precedent here. Before and during the American Revolution, the newspapers of the day were incredibly influential to the political debate. In fact, they were the best communications network (and, other than the mail, the only communications network) in existence at the time.

But political commentary back then was a lot more dangerous for the author than it is today. Writing a pro-independence article could get you the death penalty for treason, for instance. Libel and sedition laws were unbelievably strict back then -- writing something that put a political figure in a bad light could get you arrested. When you got to court, "what I wrote was true, and I have the proof of it" was not an allowable defense -- you could still be convicted of libel just for the fact that it made it into print in the first place, true or not.

Because of all this, virtually all of the political articles back then were anonymous. American authors would sign their works with such pen names as "A Farmer From Pennsylvania" or "A Gentleman Of Halifax," or the more literary pseudonyms "Cato" or "Candidus" or "Publius" -- along with hundreds of others. They did this both for their own self-preservation and to protect the printer of the newspaper from legal retaliation. Both sides of the argument used this anonymity, as well -- pro-British writers and pro-independence writers alike.

Our own Revolution likely would never have happened -- or, at the least, would have played out much differently -- if these anonymous articles and comments hadn't appeared in the newspapers of the time. They pre-date the First Amendment by decades, in fact. Which is one of the reasons why freedom of speech and freedom of the press -- the only actual business entity mentioned anywhere in the Bill of Rights -- were included in the First Amendment.

Speaking out on politics in whatever technological medium exists -- and remaining anonymous while doing so -- is not just one of the foundational rights our government was built on, it was actually largely responsible for our nation and our government even existing.

That is not going to be taken away by any misguided modern group of politicians in Albany, New York. Whether they've read and understood the Constitution or not will not matter, even if this pathetic excuse of a law is actually passed. Because it won't last that "New York minute" in federal court, before it is tossed on the historical ash-heap of past attempts at such censorship -- and, indeed, laughed right out of the courtroom.

 

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