The Ethics of Online Anonymous Speech (Honors Thesis Preview)

“I’m ready to take this all the way to the Supreme Court. Our Founding Fathers wrote ‘The Federalist Papers’ under pseudonyms. Inherent in the First Amendment is the right to speak anonymously. Shouldn’t that right extend to the new public square of the Internet?”

Salvatore Strazzullo, May 15, 2010

Salvatore Strazzullo is the attorney working on the case of Rosemary Port, a blogger who is suing Google for up to 15 million dollars after her identity was revealed to the public in a previous online defamation case. Port, under an online pseudonym, runs a fashion gossip blog called “Skanks of NYC” and last year wrote negative remarks about a former supermodel named Liskula Cohen. The model saw the website and sued to have the identity of the anonymous blogger revealed by way of sending a subpoena to Google, claiming that the comments written about her were defamatory. A Manhattan Supreme Court judge approved the action, and Google was compelled to release Rosemary Port’s name for the defamation case. Port feels that her right to privacy and First Amendment right to anonymous free speech have been violated, now that her identity as the writer of all posts on “Skanks of NYC” has been revealed to the public and the press. She plans to sue Google, accusing the conglomerate of having “breached its fiduciary duty to protect [Port’s] expectation of anonymity.” (NY Daily News, 5/19/2010) While her particular case has little chance of success because Google was bound by a court order to release Port’s identity, the question of if and when an anonymous person’s identity should be unmasked is still relatively open. Her attorney, Strazzullo, asserts that a right to anonymous speech is “inherent” in the First Amendment, and that the Internet is a new kind of “public square” in which ideas should be able to flow freely. Balancing the right to anonymous free speech against the right of a plaintiff (in a libel case, for example) to eliminate that anonymity through subpoena is one of the many ethical challenges facing the courts in recent years because of the Internet.

The next few years will be critical in deciding what we think the place of online anonymity should be in the future of American public discourse, as our speech and information become more public through social networking sites and new trends. The idea that the Web is a public resource, a space where people can speak freely and share their opinions is now coming into conflict with the fact that free speech is not absolute, and that people mostly turn to privately-owned social sites and blogging platforms to speak out. The companies that provide these spaces, such as Facebook and Google have become the main actors in deciding who can speak anonymously, in what context, and what they can say; this changes the relationship between citizens, their speech, and the law in important ways that as of yet have not been spelled out for the public or the courts to understand. This is what I seek to address in my thesis, through a combination of empirical review, legal analysis, and ethical investigation into the protection of anonymity under the First Amendment. Because we are at such an important turning point in online regulatory policy and the formation of public opinion, it is extremely important to take a step back and understand what the impact of future legal action could be.

The United States Supreme Court ruled in 1995 that an individual’s anonymity is protected under the First Amendment, meaning that any law requiring someone to provide their name before speaking or publishing their opinions would be deemed unconstitutional. (McIntyre v. Ohio Campaign Commission, 1995) For the United States in particular, anonymous speech has had an important role in historically significant events: the Federalist Papers and Thomas Paine’s “Common Sense” were published and distributed under pseudonyms, and during the Civil Rights Movement progressives communicated anonymously to avoid persecution and arrest. In addition, whistle-blowers against government or corporate wrongdoing, abuse victims, and other types of individuals who fear retribution for speaking the truth have consistently used anonymous speech to achieve their aims. Above all, the ability of a person to hide his or her identity when speaking increases their autonomy and range of self-expression. For these reasons, anonymity can be said to hold some value in American society – and the Internet is the perfect medium in which to communicate anonymously.

Anonymity online helps to advance the same values as freedom of speech, but many believe that it brings about more negative consequences than good – and therefore it should be discouraged or even restricted on the Internet. A law currently in place that protects the right to anonymous online speech is Section 230 of the Internet Communications Decency Act, which says that website owners cannot be held legally accountable for what people write on their sites. This law encourages hosts to keep their anonymous discussion spaces and comment sections open, but certain scholars have recently come out in support of modifying or even repealing Section 230. Ian Kerr, Chair of Ethics, Law, & Technology Research at the University of Ottawa, writes in his book, Lessons from the Identity Trail, “anonymity basks in its association with good causes,” referring to the narratives of the Founding Fathers and protesters for Civil Rights. (Kerr, 443) This association alone, Kerr believes, does not prove that anonymity is inherently valuable, nor does it absolve anonymity from its dark, harmful costs. The costs mainly come in the form of incendiary, hateful speech that pollutes many online discussion spaces and blogs where anonymity is allowed, because the authors of anonymous comments feel a certain lack of social inhibition as they write.

The same freedom in anonymity that allows a whistleblower to expose the truth also allows a normal person to transform into a “troll,” or rude and disruptive poster. In order to curb this type of behavior, many websites have recently turned to commenting systems that require users to log in with their real name such as Facebook Connect, even though Section 230 protects them from being sued; this move largely eliminates the ability of a commenter to be anonymous by linking their words to their social networking profile. Farhad Manjoo, in his Slate Magazine article, “Troll, Reveal Thyself” celebrates the fact that anonymous online discussion spaces are slowly disappearing. (Slate.com, 03/09/2011) “Perhaps we’ll miss some important comments that could only be posted anonymously,” he supposes; “But I doubt that’s a real loss.” He believes that “In all but the most extreme scenarios, anonymity damages online communities.” As a blogger, he is frustrated by anonymous critics who write rude things about him and his work in the comment section provided below his articles; he wishes there were some way to eliminate that kind of inappropriate speech by introducing the etiquette of “the offline world” to the Internet – repealing Section 230 of the CDA would take us in that direction.

In this thesis, I disagree with the above authors and instead argue that the current move towards restricting anonymity online causes us to lose something of real value and importance. Critics like Farhad Manjoo and Ian Kerr are evaluating anonymity on a kind of utilitarian scale; they observe that in many situations, allowing people to be anonymous online brings about a variety of insensitive, unsavory comments and decide based on such observations that anonymity is a net loss for the Internet. I argue that while utilitarian calculus is one way to determine the worth of online anonymity, it is not the only way. Taking that logic to its conclusion would bring the entire First Amendment into question; if the bar for deciding on a right to free speech depended upon whether the speech was civil and “worth hearing” for the audience, much of the speech we hear every day would be outlawed for its irrelevance to democracy or intellectual pursuits. Thinking of the issue in terms of unconditional, constitutive values like autonomy and equality will help us understand the deep connection between anonymity and free speech, and the important place that both hold in today’s society.

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: