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On Behalf of | Mar 19, 2024 | Firm News

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A few years back, Sen. John Kennedy, (R-La.), had announced plans to introduce legislation that would ban anonymous internet posts. Specifically, he said social media companies should have to verify the legal identities of every user because this would “cause a lot of people” to “think about their words.”

Such a statement, while a great sound byte for a politician, is wrong both historically and constitutionally.

The early history of the United States prominent persons used anonymous pamphlets and the unsigned letter to the editor to express their views on public issues. William Bradford was brought to trial because he had, to inform the people of their rights, anonymously printed and distributed the charter of Pennsylvania. Better known examples include The Federalist Papers of Hamilton, Madison, and Jay which were published originally as letters to the editor under the name of “Publius.” The Letters of Pacificus by Alexander Hamilton defending Washington’s proclamation of neutrality and Madison’s answering Letters of Helvidius were published anonymously. Even Chief Justice Marshall, writing anonymously as “a friend to the Republic,” vigorously defended certain Supreme Court decisions against attacks by Spencer Roane, also writing anonymously. Clearly, there is an American tradition of writing anonymously or using a pseudonym when engaged in public debate.

Early decisions of the US Supreme Court have protected anonymity, but sometimes in a backhanded way. Sweezy v. New Hampshire, 354 U.S. 234 (1957); Thomas v. Collins, 323 U.S. 516 (1945). It was in 1995 that the Court made a very clear statement of why anonymity has constitutional protection. McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995). In McIntyre, the Court held that an Ohio statute prohibiting anonymous campaign literature is unconstitutional because it violates the First Amendment to the U.S. Constitution, which protects the freedom of speech. In a 7–2 decision authored by Justice John Paul Stevens, the Court found that the First Amendment protects the decision of an author to remain anonymous:

Great works of literature have frequently been produced by authors writing under assumed names. 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. Id. at 341-42.
Anonymity is a shield from the tyranny of the majority. … It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation — and their ideas from suppression — at the hand of an intolerant society. Id at 357

Likewise, the Court has also recognized that anonymity allows for the free interchange of ideas which may not be within the mainstream of ideas. For example, in a 6-3 decision, Buckley v. American Constitutional Law Foundation, Inc., 525 U.S. 182 (1999), Justice Ruth Bader Ginsburg, writing for the majority, noted that states that allow ballot initiatives have the right to protect political process, but the First Amendment required the Court to be vigilant against “undue hindrances to political conversations and the exchange of ideas.”
Therefore, the Supreme Court held that a Colorado’s requirement that those circulating political petitions wear identification badges “inhibits participation in the petitioning process” because it impermissibly limits the number of people willing to petition for organizations. More recently in Americans for Prosperity Foundation v. Bonta, 141 S.Ct. 2373 (2021), United States Supreme Court dealt with the compelled disclosure of donors to non-profit organizations. The Court held that such a regulation was facially invalid because it burdened the First Amendment rights of the donors and it is not narrowly tailored to an important interest of government.

Clearly, these cases hold that the First Amendment protects the interchange of ideas on the internet.

To protect your constitutional rights, contact Attorney Paul Ksicinski at 414-207-6345 now!