Anonymous speech is not always worth it.

An absolutist reading of the First Amendment undermines the simple truth that some forms of speech in our society are inherently more valuable than others. Commercial speech, obscenity, and speech that threatens public peace and the security of a state are simply less important than other forms of speech – and, as Solove recognizes, that’s why courts don’t give the same level of strict scrutiny to all forms of speech. Where does anonymous speech fall in this spectrum? Anonymity, as this week’s authors recognize, has value in our society: it allows people to be more experimental and present controversial ideas without the fear of ostracism or losing their jobs. Perhaps the best example of useful anonymity was the Federalist Papers: Jay, Hamilton, and Madison were able to frame the Constitution and express useful political ideas without undermining their personal politics and threatening their community reputations.

But anonymity has a powerful and dangerous “dark side”: the potential to spread falsehoods, invade privacy, and cause
reputational harm without redress. The Internet and digital age, in my opinion, certainly allow the benefits of anonymous speech to continue to flourish, but, if there’s one thing that we truly ought to recognize about the Internet, it’s that the medium can also greatly inflate anonymity’s dangers. Citron presents what is, in my opinion, a persuasive case for why we ought to regulate away such dangers: because the costs of bad behavior are low or non-existent, the Internet facilitates “mob rule,” allowing rampant victimization. In short, cyber-attack groups like the group Anonymous use speech to strike against women and minorities, effectively undermining others’ ability to use free speech online, threatening their safety or finances, or causing reputational harm. And, as our global reputations become more and more dependant on our digital identities, such harms become not just noteworthy – they become extensive.

I find myself incredibly sympathetic to this argument that anonymous speech on the Internet has a perhaps never-before-seen potential to cause far-reaching societal harm. In a world where employers often use a search-engine to check our credentials, when our bank accounts can be accessed electronically, and our homes can be viewed from “Google StreetView,” societal harms caused by anonymous speech are amplified. The “right” for you to anonymously publish my street address, cell phone number, and defame me doesn’t really seem like a genuine Constitutional right after all. Thus heightened protections and specialized legislation to combat these unique Internet anonymity dangers make sense.

This is not to advocate, however, that CYBERSLAPP cases should be legally valid or anonymity on the Internet should be taboo. Rather, we should continue to allow individuals to anonymously report company ills, societal harms, and spread political messages; we just shouldn’t allow them to do so to the point that they are effectively suppressing others’ right to free speech and creating widespread dangers and social unrest.

The law may intend to protect people's right to free and anonymous speech, but above all it is meant to protect people.

Question for class: Does applying a lesser standard to anonymous speech undermine free speech or is it necessary to prevent societal harm?