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May 25, 2012 11:10 AM   Subscribe

Republican-sponsored New York State Assembly bill would ban anonymous online speech. "AN ACT to amend the civil rights law, in relation to protecting a person's right to know who is behind an anonymous internet posting..." S6779, introduced by Rep. O'Meara, is brief: it establishes "a person's right to know who is behind an anonymous internet posting" as a civil right, and requires that NY-based "Web site administrator[s]" remove any anonymous postings. The summary of the Assembly bill, A8688, whose text is identical, describes the bill as "a means for the victim of an anonymous posting on a website to request that such post be removed, unless the anonymous poster is willing to attach his or her name to it."

Commentary from earlier in May by Eugene Volokh
And from Wired.
posted by chesty_a_arthur (90 comments total) 12 users marked this as a favorite

 
They love the constitution, up until the moment it irritates them.
posted by East Manitoba Regional Junior Kabaddi Champion '94 at 11:14 AM on May 25, 2012 [45 favorites]


I'd rather see a bill calling for harsher penalties against CallerID spoofing, but that'd be as difficult to enforce in the States as it is abroad.
posted by Smart Dalek at 11:18 AM on May 25, 2012


Does this have any chance of passing or is it crazy congresscritters doing crazy things, example#35, 323,454,865,345,233? Is there a larger story here, other than some people in government are idiotic assholes?
posted by Brandon Blatcher at 11:18 AM on May 25, 2012 [2 favorites]


Mandatory disclosure of legal identity as a civil right. Wow. Your "right to know" is about as much of a civil right as my "right to slap your eyes with salad tongs."
posted by byanyothername at 11:18 AM on May 25, 2012 [11 favorites]


Have you guys seen the latest filth those pamphleteers at "The Federalist" are putting out? If this "Publius" fellow had anything of value to contribute, surely he would have put his Christian name on it.
posted by Winnemac at 11:18 AM on May 25, 2012 [115 favorites]


dafuq? When did the basic tenets of the freedom of speech become so obscure? And to conservatives no less. The notion that somebody could say something that we can't then punish them for is beyond their understanding.
posted by gallois at 11:18 AM on May 25, 2012 [1 favorite]


On one hand: Way less douchebaggery.

On the other: WTF?
posted by Big_B at 11:19 AM on May 25, 2012


They love the constitution, up until the moment it irritates them.

Making anonymous defamatory postings on the Internet, and refusing to remove them, is not a constitutional right.
posted by one more dead town's last parade at 11:21 AM on May 25, 2012


Let's all send requests to the assembly.state.ny.us web site demanding that all bills and postings attributed to Republicans be taken down because they don't contain confirmed IP addresses. You're right, Big_B! Way less douchebaggery!
posted by XMLicious at 11:22 AM on May 25, 2012 [4 favorites]


This Legislation has been brought to you by the letter G and the symbol +.
posted by symbioid at 11:24 AM on May 25, 2012 [4 favorites]


Making anonymous defamatory postings on the Internet, and refusing to remove them, is not a constitutional right.

The bill's purview is not limited to defamatory postings, however; and anonymous speech actually is (with a few specific exceptions) a constitutional right according to the Supreme Court.
posted by clockzero at 11:25 AM on May 25, 2012 [19 favorites]


From the Volokh link:

A web site administrator upon request shall remove any comments posted on his or her web site by an anonymous poster unless such anonymous poster agrees to attach his or her name to the post and confirms that his or her IP address, legal name, and home address are accurate.

This would seem to remove the right of a person to engage in speech without broadcasting their home address to the world on internet, a right currently held by everyone except those few people who have their home address tattooed on their foreheads.

Making anonymous defamatory postings on the Internet, and refusing to remove them, is not a constitutional right.

I don't see a requirement that the post be defamatory anywhere. Defamation is not protected by the First Amendment, but this seems to extend to all posts that someone requests be removed which clearly implicates First Amendment protected speech.
posted by Bulgaroktonos at 11:25 AM on May 25, 2012 [5 favorites]


Defamation may be a crime, and then you can pursue that via IP lookup. Sure it might be hard work, but sometimes you have to have the right to hard work in order to keep the rights (to privacy and anonymity) that this country was founded upon (i.e. Publius/Federalist Papers; Tea Party Dressup in Indian Costume as another example).
posted by symbioid at 11:26 AM on May 25, 2012 [2 favorites]


I was going to say, "They really don't get the internet." Then I realized that by 'the internet', I meant 'speaking'.
posted by iamkimiam at 11:26 AM on May 25, 2012 [6 favorites]


Making anonymous defamatory postings on the Internet, and refusing to remove them, is not a constitutional right.

It's an alienable right.
posted by It's Raining Florence Henderson at 11:27 AM on May 25, 2012 [2 favorites]


Jay Smooth on this issue.
posted by Hypnotic Chick at 11:28 AM on May 25, 2012 [3 favorites]


What make this most hilarious to me is the fact that the New York State Assembly apparently thinks that it has some form of administrative control over the Internet.
posted by cmdnc0 at 11:28 AM on May 25, 2012 [15 favorites]


If this "Publius" fellow had anything of value to contribute, surely he would have put his Christian name on it.

I regret that I have but one favorite to give for this comment.
posted by scaryblackdeath at 11:29 AM on May 25, 2012 [12 favorites]


Anonymous postings to the internet? Not okay.

Anonymous contributions to Super PACs? That's honkey-dorey.

That's a pretty confused notion of what "speech" is, there.
posted by hippybear at 11:29 AM on May 25, 2012 [93 favorites]


Vague, unenforceable, and unconstitutional. Great job guys!

This would seem to remove the right of a person to engage in speech without broadcasting their home address to the world on internet, a right currently held by everyone except those few people who have their home address tattooed on their foreheads.

The text of the law just says that their name has to be attached to the post. The whole description is very vague in terms of how this would actually work logistically, but I would guess that the confirmation of accuracy of the IP address, legal name, and home address would be in private between the user and the webmaster.
posted by burnmp3s at 11:31 AM on May 25, 2012 [1 favorite]


The bill's purview is not limited to defamatory postings, however

I agree that the bill goes too far (in that it attempts to regulate all anonymous posts instead of just defamatory ones), but the idea that service providers somehow have a constitutional right to disclaim all responsibility for anonymous posts on their web sites is not a correct one.
posted by one more dead town's last parade at 11:32 AM on May 25, 2012


No need to identify the party affiliation on this one. We could have guessed.
posted by Phud at 11:32 AM on May 25, 2012


When did the basic tenets of the freedom of speech become so obscure? And to conservatives no less.

That's because conservatives view freedom of speech as both a negative freedom (government can't restrict you from saying things) and a property right (you're free to say whatever you want on your own private property). There's a rather (in)famous clip of Ronald Reagan interrupting someone by saying "I'm paying for this microphone" which rather succinctly sums up the Republican idea of free speech.

This is why they've always been very wary of the Internet as a means of enabling free speech. It's one to have a law that protects the right of people to own a printing press, but it's against their very nature to support something that potentially gives everyone a printing press.
posted by RonButNotStupid at 11:32 AM on May 25, 2012 [5 favorites]


the idea that service providers somehow have a constitutional right to disclaim all responsibility for anonymous posts on their web sites is not a correct one

Good thing no one here or in any of the linked articles is suggesting that.
posted by burnmp3s at 11:35 AM on May 25, 2012 [1 favorite]


Great, now how am I going to ask about this rash?
posted by maryr at 11:36 AM on May 25, 2012 [8 favorites]


Defaming people is definitely legal. Making anonymous defamatory postings is an activity several of this country's Founding Fathers engaged in, which some were charged with "seditious libel" for because their words brought the monarch and the government "into hatred or contempt", and they didn't forget that.
posted by XMLicious at 11:36 AM on May 25, 2012 [5 favorites]


I guess the answer would be to unplug new york from the internet.
posted by aubilenon at 11:37 AM on May 25, 2012 [2 favorites]


So, question for anybody familiar with the matter -- does this stand even a snowball's chance in hell of passing, or is it just typical GOP election year grandstanding?
posted by Afroblanco at 11:39 AM on May 25, 2012 [1 favorite]


So there would be some benefit?
posted by Kirth Gerson at 11:41 AM on May 25, 2012


Good thing no one here or in any of the linked articles is suggesting that.

Except that they are. The accompanying text to the bill talks about requiring service providers to either remove or de-anonymize posts upon request. People are suggesting in this thread that that can't ever be required.
posted by one more dead town's last parade at 11:42 AM on May 25, 2012


Just as a reminder, it can be reasonably assumed that the NSA is recording every comment made in this thread - along with its originating IP address.

Carry on with your anonymous discussion.
posted by Trurl at 11:42 AM on May 25, 2012 [2 favorites]


I agree that the bill goes too far (in that it attempts to regulate all anonymous posts instead of just defamatory ones), but the idea that service providers somehow have a constitutional right to disclaim all responsibility for anonymous posts on their web sites is not a correct one.

I see what you're saying, but I think the flaw in your argument is that it assumes the existence of a positive legal duty to provide information about anonymous posts, and I don't think that's the case. They need not disclaim that responsibility, because they are not in fact responsible for either reporting information on anonymous posts (that's the legal obligation this bill seeks to create) or for those posts in a more general sense.
posted by clockzero at 11:42 AM on May 25, 2012


People are suggesting in this thread that that can't ever be required.

I think your argument might be assuming what you're trying to prove. It's not required right now, which is why this bill exists.
posted by clockzero at 11:44 AM on May 25, 2012


I think your argument might be assuming what you're trying to prove.

No.

It's not required right now, which is why this bill exists.

Right, but the fact that it's not required is not because the Constitution somehow prohibits it from being required.
posted by one more dead town's last parade at 11:48 AM on May 25, 2012


Anonymous postings to the internet? Not okay.

Anonymous contributions to Super PACs? That's honkey-dorey.

That's a pretty confused notion of what "speech" is, there.


What hippybear said, x1000.
posted by mosk at 11:49 AM on May 25, 2012 [3 favorites]


Republican-sponsored New York State Assembly bill would ban anonymous online speech.

Or maybe, "Republican-sponsored New York State Assembly bill would ban most datacenters from operating in New York State"

American politics is completing a long and arduous journey from circular firing squad to gun-in-my-own-mouth. Such good times!
posted by crayz at 11:50 AM on May 25, 2012


There's a rather (in)famous clip of Ronald Reagan interrupting someone by saying "I'm paying for this microphone" which rather succinctly sums up the Republican idea of free speech.

What? That doesn't reflect what happened there at all.
posted by ThisIsNotMe at 11:52 AM on May 25, 2012 [3 favorites]


"The gentleman from South Carolina has said, that provided the law is clear and well-defined, and the trial by jury is preserved, he knew of no law which could infringe the liberty of the press. If this be true, Congress might restrict all printing at once. We have, he said, nothing to do but to make the law precise, and then we may forbid a newspaper to be printed, and make it death for any man to attempt it! If this be the extent to which this law goes, it is not only an abridgement of the liberty of the press, which the Constitution has said shall not be abridged; but it is a total annihilation of the press." -- Edward Livingston, representative from New York, during the Sedition Act debates, July 1798
posted by blucevalo at 11:53 AM on May 25, 2012


Republican-sponsored New York State Assembly bill would ban anonymous online speech.

Jesus. I read that bill. Per se unconstitutional. Just terrible.
posted by Ironmouth at 11:54 AM on May 25, 2012 [3 favorites]


So, while the idea of outlawing any form of anonymous speech is absurd, there is one idea I do like : websites taking more responsibility for their users' contributions. Mefi's own Anil Dash wrote a great piece about this. Basically, the reason MeFi isn't a cesspool like YouTube comments or Yahoo Answers is because of active moderation. If every site admin moderated what kinds of comments and ads showed up on their site, the internet would be a much better place, without requiring any kind of ridiculous, draconian legislation.

And to some extent, this is already happening. But how this really shakes out is that we get some sites like MeFi and Stack Overflow, with active moderation and a (relatively) high signal-to-noise ratio, and then we have the rest of the internet, which is rife with rampant assholery. But we have to face facts, this is because people like being assholes and site admins don't care enough to stop them.
posted by Afroblanco at 11:54 AM on May 25, 2012


It's not required right now, which is why this bill exists.

Right, but the fact that it's not required is not because the Constitution somehow prohibits it from being required.


I don't think the last part is true, though. As I mentioned before, the Constitutional protection for speech extends to anonymous speech, so the Constitution could very well prohibit it from being required.
posted by clockzero at 11:55 AM on May 25, 2012


Right, but the fact that it's not required is not because the Constitution somehow prohibits it from being required.

Read the Volokh Conspiracy post. cites Talley v. California (1960) and McIntyre v. Ohio Elections Comm’n (1995); for the proposition that, yes, the Constitution does prohibit it from being required.
posted by Ironmouth at 11:56 AM on May 25, 2012 [2 favorites]


In a related story - Indiana is trying to reintroduce Indiana House of Representatives House Bill #246 to legislate a more convenient value for pi.

No, not really but it would make about as much sense.
posted by speug at 11:59 AM on May 25, 2012


yes, the Constitution does prohibit it from being required

Not in all cases; I'm not sure you get what I'm saying. There's no constitutional prohibition on giving people the power to say "this defamatory, anonymous post is about me—take it down, de-anonymize it, or accept full responsibility for it as though you'd written it yourself."
posted by one more dead town's last parade at 12:00 PM on May 25, 2012


Right, but the fact that it's not required is not because the Constitution somehow prohibits it from being required.

Read the Volokh Conspiracy post. cites Talley v. California (1960) and McIntyre v. Ohio Elections Comm’n (1995); for the proposition that, yes, the Constitution does prohibit it from being required.


one more dead town's last parade can correct me if I'm misinterpreting, but I believe what "it" in "somehow prohibits it" refers to is "any takedown order of anonymous content for any reason". So for example, one more dead town's last parade is saying that it would not be unconstitutional for there to be a law that compels webmasters to take down anonymous comments that declare a fake bomb threat or is otherwise not considered protected speech by the First Amendment.
posted by burnmp3s at 12:03 PM on May 25, 2012


yes, the Constitution does prohibit it from being required

Not in all cases; I'm not sure you get what I'm saying. There's no constitutional prohibition on giving people the power to say "this defamatory, anonymous post is about me—take it down, de-anonymize it, or accept full responsibility for it as though you'd written it yourself."


Said power already exists at law--the remedy is a defamation suit.
posted by Ironmouth at 12:03 PM on May 25, 2012 [8 favorites]


In other words, the Constitution does not allow the legislation as discussed above.
posted by Ironmouth at 12:05 PM on May 25, 2012 [2 favorites]


So how will this play with right wing anonymous commenters?
posted by ODiV at 12:05 PM on May 25, 2012


Said power already exists at law--the remedy is a defamation suit.

And that power can be given to individuals in a way that does not require them to file suit.
posted by one more dead town's last parade at 12:07 PM on May 25, 2012


Not in all cases; I'm not sure you get what I'm saying.

I think people don't get what you're saying because you're not talking about the actual topic. For example, say that this was a bill that proposed allowing law enforcement to search anyone's home to find evidence of criminal activity at any time for any reason. People would obviously post to say such a law would violate the Constitution. If you came into the thread and started arguing that a law allowing someone's home to be searched does not violate the Constitution because in some cases law enforcement has a reasonable justification for searching someone's home, then people would assume you were defending the bill rather than defending the overall concept of law enforcement conducting a search.
posted by burnmp3s at 12:09 PM on May 25, 2012


There's a rather (in)famous clip of Ronald Reagan interrupting someone by saying "I'm paying for this microphone" which rather succinctly sums up the Republican idea of free speech.

The someone he was interrupting was the editor of the Nashua Telegraph, who'd called out for Reagan's mike to be turned off. What Reagan was trying to do was tell a debate audience why there were only two candidates on the stage instead of five as advertised (George Bush the Elder, the second candidate, had made it clear that he didn't want the other candidates to be included). Which makes it even more interesting. I don't know whether Reagan was trying to make some grander statement about free speech and property rights or not, but just the people involved in the scenario makes it a legendary piece of political folklore.

It's been pointed out that Reagan's line is lifted from a similar speech that Spencer Tracy gave during the climactic scene in "State of the Union." Maybe Reagan, who was known to conflate the movies and real life, imagined he was pulling a Spencer Tracy.
posted by blucevalo at 12:11 PM on May 25, 2012 [2 favorites]


I think people don't get what you're saying because you're not talking about the actual topic.

I think what set me off was the first comment, which implies that not only is the bill flawed (which it is), but that the very concept (requiring deanonymization or removal) is unconstitutional (which it isn't).
posted by one more dead town's last parade at 12:15 PM on May 25, 2012


It's a proposal. Let me know if it ever passes.
posted by crunchland at 12:24 PM on May 25, 2012


And that power can be given to individuals in a way that does not require them to file suit.

I don't think so. There's this little thing called "due process".
posted by XMLicious at 12:25 PM on May 25, 2012 [1 favorite]


I think we have to sign a pledge, all of us, that when we become old, and new technologies spring up that seem strange and scary, and all the young people are using them, that we won't become big annoying sticks-in-the-mud and ruin everyone else's good time.
posted by Salvor Hardin at 12:31 PM on May 25, 2012 [4 favorites]


NY state is pretty blue, overall, but we have a cautious/scared brand of Republican voters in our suburbs & rural areas. I doubt this will pass, or is even intended to pass -- we just approved gay marriage here fairly recently, after all! I would bet it's being thrown up just so Republican candidates can claim their party tried to protect vulnerable children from cyberbullying, and to "clean up" politics (where "cleaning up" = "ignoring the US Constitution to hamstring discourse"), and these immoral Democrats who don't care about your children or common decency stopped them.

I really hope so, anyway. I keep crossing off US states where I can possibly live, and I'd hate to nix NY.
posted by poetiscariot at 12:33 PM on May 25, 2012


Can we all take a moment to thank chesty_a_arthur for having a wonderful username
posted by East Manitoba Regional Junior Kabaddi Champion '94 at 12:48 PM on May 25, 2012 [3 favorites]


There's this little thing called "due process".

And getting smaller all the time.
posted by Trurl at 12:50 PM on May 25, 2012 [4 favorites]


The best part is either the part where the legislators involved don't seem to understand that the internet is a global phenomenon far beyond the purview of the NY state legislation or the part where they don't see how these government regulations will either kill or impose an undue burden on people and businesses doing business in or with the state of NY.

So hard to choose just one.
posted by Matt Oneiros at 12:56 PM on May 25, 2012


Whenever republicans get freaked out over Anonymous I feel like I'm watching one of my nephews gape in awe over some fourteen-year-old or something. It's just so pathetic that it's almost cute.

Anyway, for once I'm glad that the NY State Assembly is the most dysfunctional legislative body in the nation. Nothing to see here, really.
posted by Navelgazer at 1:00 PM on May 25, 2012


Does this have any chance of passing or is it crazy congresscritters doing crazy things, example#35, 323,454,865,345,233?

In general, what the Assembly Republicans do is not particularly relevant to... well, pretty much anything in New York government. This doesn't really seem like something Shelly Silver would be interested in, so it's a reasonable bet that it's going nowhere.

Nits: you meant to link to A08688, introduced by Murray. S06779 is the Senate version, which currently has no sponsors other than its introducer.
posted by ROU_Xenophobe at 1:00 PM on May 25, 2012 [1 favorite]


Could a web admin just modify their site's terms of service to include a clause saying: "By using this service, I agree to waive my right to request that the admin de-anonymize content on this site, and I do not hold the admin liable for any anonymous content of this site. I understand that making such a request will result in me getting v& & b&."?

It seems like the law gets applied on the basis of a "victim"'s whining only. Is it legally possible for a web admin to say "You can whine about anonymous content, and I'll follow the law regarding your whine, but whining gets your IP banned, and this site's content is only visible to registered users, so that will be the last whining you do."?
posted by kengraham at 1:01 PM on May 25, 2012 [1 favorite]


Said power already exists at law--the remedy is a defamation suit.

And that power can be given to individuals in a way that does not require them to file suit.


No, it cannot. You cannot require a person to restrict their speech without due process of law. Essentially, you have two problems here.

The first is that the legislation allows a private party to restrict the speech of another. This is a violation of the delegation doctrine, which prohibits the unconstitutional handing of state power to individuals. Second, the First Amendment comes into play. This apparently creates a substantive right to use government power to censor the speech of others.

Frankly, the legislation is crap. There appears to be no enabling section, but a right of action is implied to force a person to change or remove speech without any basis whatsoever.
posted by Ironmouth at 1:03 PM on May 25, 2012 [5 favorites]


The bill's purview is not limited to defamatory postings, however

I agree that the bill goes too far (in that it attempts to regulate all anonymous posts instead of just defamatory ones), but the idea that service providers somehow have a constitutional right to disclaim all responsibility for anonymous posts on their web sites is not a correct one.


There is no such doctrine enshrined in law anywhere. The person sues the website holder, who then turns over the information via a valid discovery request and the party who made the defamatory comment may then be sued. See the link to the case I provided in my earlier response.
posted by Ironmouth at 1:06 PM on May 25, 2012 [2 favorites]


I meant "the proposed law would get applied". The present is tense enough without the sort of mistake that appears in my last comment.
posted by kengraham at 1:10 PM on May 25, 2012


Nits: you meant to link to A08688, introduced by Murray. S06779 is the Senate version, which currently has no sponsors other than its introducer.
Dammit. Thanks. I don't know why I wrote Assembly; I knew that was a Senate bill.
posted by chesty_a_arthur at 1:11 PM on May 25, 2012


Perhaps we should really be talking about the more important issue; how did Brandon generate that random 17 digit number?
posted by wittgenstein at 1:14 PM on May 25, 2012


for once I'm glad that the NY State Assembly is the most dysfunctional legislative body in the nation

You know, longtime New Yorkers keep saying this, but I have to think a lot of it is that they're just unfamiliar with other ones. This bill notwithstanding, the New York legislature has consistently struck me as relatively professional and responsible, and a lot more concerned with trying to deal with problems instead of trying to keep evolution out of the schools, or banning sex toys, or various birther nonsense, or obviously unconstitutional antiabortion bills, or fuck-you-blacks voter-ID bills, or any of the other horrendous horseshit that real life legislators get up to every day. I tell you what -- Having lived under all of them, I for goddam sure will take New York's three-men-in-a-room any day over the government that Texans or North Carolinians or Floridians have to put up with.

Shit, even the Republicans (in the Senate anyway) act almost like responsible partners in government instead of the bomb-throwing dickheads they have in Congress.
posted by ROU_Xenophobe at 1:17 PM on May 25, 2012 [2 favorites]


Wow. Republicans still don't understand the internet, eh? God, they're dumb.
posted by Decani at 1:17 PM on May 25, 2012 [1 favorite]


Just as a reminder, it can be reasonably assumed that the NSA is recording every comment made in this thread - along with its originating IP address.

Ha, ha, sucker. I'm behind seven boxies.
posted by octobersurprise at 1:23 PM on May 25, 2012 [1 favorite]


Here's a great blog post about this bill at Washington Post by Erik Wemple: "13 Questions for New York’s proposed crackdown on anonymous commenters." Including:

7) What happens if the WEB SITE ADMINISTRATOR is eating lunch? Can the WEB SITE ADMINISTRATOR finish the tomato bisque soup before adjudicating?

"13 Questions" is followup to Wemple's earlier post on the bill in which he interviewed Sen. O'Mara.
posted by beagle at 1:53 PM on May 25, 2012


Making anonymous defamatory postings on the Internet, and refusing to remove them, is not a constitutional right.

It ought to be, though. I'm probably not alone in thinking this.
posted by LiteOpera at 2:35 PM on May 25, 2012 [1 favorite]


This bill notwithstanding, the New York legislature has consistently struck me as relatively professional and responsible, and a lot more concerned with trying to deal with problems

As a life-long NYer I have to disagree with this. While the modern Republican crazyness has some influence here, on the whole it does not sell well, and the influence of the Republican Party at the state level is in long term decline, to the point that the Senate is almost evenly divided, and the Rs had to gerrymand up a new district just so they could keep their majority. They have to look semi-reasonable because they've got one foot in the grave and the other on a banana peel.

When the Rs had a secure place in the Senate, and the Assembly was firmly D as it still is, they didn't do a lot of grandstanding, but they also didn't deal with problems either, because any initiative by one party went nowhere in the other house. For 20 years, they couldn't even pass a budget on time. (Against the law, but never punished, which made us peons look a little askance at the concept of law as a moral force.)

Our system may be better than TX, FL or NC, but it is suboptimal, and not really professional or responsible.
posted by anewc2 at 2:49 PM on May 25, 2012


I wonder how this would fare if compared to the recent policy in China that requires microbloggers to register their real names, then this Assembly bill could die a nice, quiet death. Because if this were to pass, we could start talking about how New York is becoming like Communist China, and no one wants that.

And anyway, couldn't someone just say they resided in New Jersey, or California, or Canada? The internet, it's (almost) everywhere now-a-days.
posted by filthy light thief at 3:26 PM on May 25, 2012


No, it cannot. You cannot require a person to restrict their speech without due process of law.

And again, that can be achieved without a lawsuit.

It ought to be, though. I'm probably not alone in thinking this.

Defaming private persons anonymously is not a right and never has been.
posted by one more dead town's last parade at 3:35 PM on May 25, 2012


Now we know what the big corporations getting blasted through Yelp want because they have told us through their legal proxies.
posted by telstar at 3:36 PM on May 25, 2012 [4 favorites]


Rep. O'Meara is a dick, and he probably beats his wife.

Signed,

Benny Andajetz

(Benny Andajetz isn't really my name, BTW. Suck it.)
posted by Benny Andajetz at 4:43 PM on May 25, 2012


Defaming private persons anonymously is not a right and never has been.

Repeating this doesn't make it true. Defaming private persons in any manner is a right here and this has always been a distinct difference between American and British law. See here in the definition of "libel" in this American Dictionary Of Printing And Bookmaking from 1894:
In England the law is still much stricter than here. By common law it is wholly immaterial whether the libel be true or false, and in a criminal prosecution the defendant is not allowed to urge the truth of the publication by way of justification. This has been somewhat modified in that country, and here such strict rulings have been completely done away with by statute and by the decisions of the courts. This was owing largely to the defenses of Bradford and Zenger, in the pre-Revolutionary period; to the arguments of Alexander Hamilton, subsequently, and to the common sense of mankind. No punishment should be inflicted for what is no offense.
posted by XMLicious at 5:28 PM on May 25, 2012 [2 favorites]


EFF page on anonymous speech on the net

Some landmark anonymous speech cases for your consideration:

Talley v. California [text] [brief...well, ok, blog]

McIntyre v. Ohio Elections Comm’n [text] [brief]

Reno v. ACLU [text] [brief]

Dendrite Int’l, Inc. v. Doe No. 3 [text] [brief]

This bill seems plainly unconstitutional, to me. It has been established that forcing identification of anonymous speakers on the Internet requires a case-by-case factual inquiry. No prepublication requirement to embed a retrievable identification, even if not displayed, can fly under that standard. It doesn't matter if it targets unprotected speech as long as it in fact reaches all anonymous speech. That just makes it incurably overbroad. It's a prior restraint, blah blah blah...
posted by snuffleupagus at 7:44 PM on May 25, 2012 [1 favorite]


Perhaps someone who knows more about US constitutional law than I do can point out where I'm wrong, but couldn't the intended effect of this law be achieved in a way a bit like how the DMCA "safe harbour" system for copyright infringement in effect gives a copyright holder an extrajudicial power to have allegedly infringing material removed from the web?

It would work like this: first you impose liability on site administrators for publishing defamatory posts, even if only in some limited but unpredictable circumstances; then you give them a complete defence if, on demand by any other person, they either remove the post or provide the poster's identity. Then throw in a handful of irrelevant safeguards to keep the courts happy. Anonymous speech is still notionally permitted, but in practice few if any sites would take the risk of failing to comply with a demand on behalf of someone they don't even know.

Not that I want to give anyone ideas. That would be a terrible law. But would it be unconstitutional?
posted by A Thousand Baited Hooks at 8:31 PM on May 25, 2012


I didn't say anything when they came for Idlechild29. I didn't say anything when they came for whose_your daddy. I didn't say anything when they came for bebopmamma97....

...hang on, someone's at the door.

BRB
posted by mule98J at 11:09 PM on May 25, 2012 [1 favorite]


I doubt this will pass, or is even intended to pass

It's not passing. The Senate bill was referred to Codes which is where bills go to die. It is as they say, pandering to the base, not intended to pass. Rep. O'Meara must be hoping for a nice appointed position doing cyber-defense maybe?
posted by fuq at 11:17 PM on May 25, 2012


but but guys if this passes people won't be mean anymore, on the internet

we'll finally have civility in discourse!
posted by This, of course, alludes to you at 11:49 PM on May 25, 2012


Perhaps someone who knows more about US constitutional law than I do can point out where I'm wrong, but couldn't the intended effect of this law be achieved in a way a bit like how the DMCA "safe harbour" system for copyright infringement in effect gives a copyright holder an extrajudicial power to have allegedly infringing material removed from the web?

It would work like this: first you impose liability on site administrators for publishing defamatory posts, even if only in some limited but unpredictable circumstances; then you give them a complete defence if, on demand by any other person, they either remove the post or provide the poster's identity. Then throw in a handful of irrelevant safeguards to keep the courts happy. Anonymous speech is still notionally permitted, but in practice few if any sites would take the risk of failing to comply with a demand on behalf of someone they don't even know.

Not that I want to give anyone ideas. That would be a terrible law. But would it be unconstitutional?


The problem is that defamation is in the eye of the beholder. It's not like putting a Lady Gaga post up there. In fact, if you're a public figure, it's really hard to find that you've been defamed.

That's why this law is written as it is. It doesn't care whether the speech is defamatory.
posted by Ironmouth at 7:14 AM on May 26, 2012


If they get to do that, we get to jail any legislator that votes for an unconstitutional law, on grounds of violation of oath of office.
posted by Goofyy at 10:34 AM on May 26, 2012


If you make actual slanderous or libelous statements that would be actionable if published in Old media, then the site has to give up your particulars if subpoenaed. If the site has logs, they at least have your IP address(es). It's gotten less easy (not actually difficult) to gain anonymous access to the web. You probably aren't as anonymous as you think. On balance, freedom of speech is more important to me in this instance than protection from speech. Site owners may end up being legally required to deal with threatening speech posted on their sites; this might not be unreasonable.

There are real problems. People let their kids bully other kids on the web. And in real life (*cough*) People give horrible advice on the web. And in real life. The web makes it harder to bury your past; run for office, and you'll get outed for smoking pot, being mean to pets, and your worst pictures will get wide coverage.
more embarrassing photos, cause they are Fun.

Meanwhile, we're still spending money in Iraq, at war in Afghanistan, Wall Street is a danger to the economy, banking isn't well regulated, our food isn't well inspected, and global climate change could make it all moot anyway. Get some priorities, willya?
posted by theora55 at 12:03 PM on May 26, 2012 [1 favorite]


But how this really shakes out is that we get some sites like MeFi and Stack Overflow, with active moderation and a (relatively) high signal-to-noise ratio, and then we have the rest of the internet, which is rife with rampant assholery.

Then, surely, the market will take care of it as people ignore the low quality sites with the defamatory anonymous posts? No need to get Government involved at all.
posted by robertc at 2:08 PM on May 26, 2012


did the basic tenets of the freedom of speech become so obscure? And to conservatives no less.

gallois, whuh? Are you actually suggesting that you believe the conservative movement of the US - the authors of the Patriot Act, "Freedom of Speech Zones", and other insulting challenges to the First Amendment - are stronger advocates of freedom of speech than the left?

It's like you're saying, "Gun control? And from a Democrat, no less."
posted by IAmBroom at 9:41 PM on May 26, 2012


To all of those who keep insisting that anonymous defamatory speech is not protected, please cite specific parts of the Constitution, or specific legal precedent. You doodooheads. (I keed!) (Anonymously.)
posted by IAmBroom at 9:43 PM on May 26, 2012


To all of those who keep insisting that anonymous defamatory speech is not protected, please cite specific parts of the Constitution, or specific legal precedent.

It doesn't work out quite like that. Defamation is not protected speech. If defamation was protected, it wouldn't be a tort. At least not one you could recover for. The cases I linked above would be relevant on that point. Also, more fundamentally:

NY Times v Sullivan [oyez] [text][brief]

Time Inc. v Firestone [text][oyez][wiki]

R.A.V. v. City of St. Paul, Minn. [oyez] [text] [brief]
Scalia:... these areas of speech can, consistently with the First Amendment, be regulated because of their constitutionally proscribable content (obscenity, defamation, etc.)....

So then the question becomes what you can do about defamatory speech that is unprotected, but is also anonymous, without reaching protected anonymous speech and the ability to engage in it. That's kind of an active area, this 2011 9th Circuit case has some pretty good application of precedent that might help:

In re: Anonymous Online Speakers [findlaw headnote][text (PDF)][student note]

There are some very recent case, like in the last few weeks, on "unmasking" internet Doe defendants, but they are in the DMCA context.
posted by snuffleupagus at 9:13 AM on May 27, 2012


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