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Another Attack On Free Speech. This Time The Culprits Are New York Republicans.

Back in October of 2011, we took note of a report issued by New York Democrats in which Constitutionally protected free speech was labeled a “privilege” and not a “right.”

The report centered on internet comments. The Democrats wanted the ability to demand web administrators take down posts and comments that were deemed by someone to be flaming, trolling and a variety of other things that were “hurtful.”

One would think that every right thinking, Constitution loving believer of freedom would tell the Democrats to go pound sand.

However, such thought processes managed to skip New York Republicans (twenty-three of the forty-nine New York Assembly Republicans, plus one Independent and one Democrat to be precise) who have actually introduced a bill to require site administrators to remove posts and comments made by anonymous contributors when asked to do so.

The bill is being touted as an “anti-cyberbullying” measure by the sponsor:

“While the Internet is a wonderful resource for social networking, sadly it can also used to anonymously bring harm to others,” said [Assemblyman Dean] Murray [(R,C-East Patchogue)]. “My legislation addresses the dangers of cyberbullying and protects the victims of this offense. By demanding these online abusers come out from anonymity and identify themselves, they will hopefully think twice before posting harmful comments about others.”

Even if the anonymous postings were “cyber bullying,” there is no Constitutional provision for the government to stop such speech. Even worse is the bill clearly does not limit the measure to “cyber-bullying” type posts and comments:

1. Definitions. As used in this section, the following words and terms shall have the following meanings:

(a) [“]Anonymous poster[“] is any individual who posts a message on a web site including social networks, blogs forums, message boards or any other discussion site where people can hold conversations in the form of posted messages.

(b) “Web site administrator” means any person or entity that is responsible for maintaining a web site or managing the content or development of information provided on a web site including social networks, blogs forums, message boards or any other discussion site where people can hold conversations in the form of posted messages, accessible via a network such as the internet or a private local area network.

2. 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. All web site administrators shall have a contact number or e-mail address posted for such removal requests, clearly visible in any sections where comments are posted.

We have many objections to this proposed legislation.

The first objection is the unlimited scope of the bill. As we said, the bill is being touted as an “anti-cyberbullying” measure, but there is no requirement within the law that the so called “offending post or comment” made anonymously must actually be “cyberbullying.” This means that if a person made an anonymous post criticizing President Obama or Mitt Romney, they could have that post removed. While that seems silly, a situation that is closer to one’s home might be more worrisome.

Assume a person makes an anonymous post or comment critical of the mayor of a city. Under this proposed legislation, such a post or comment would not be allowed if the mayor demanded the post be removed. One would either have to sign their name to the post or not post at all. Given the mayor’s influence in the city, one can see retaliation taking place against the poster. The poster might get a visit from code enforcement, be stopped by police, see their taxes rise due to higher appraisals on their homes, etc.

Who would want to risk that type of action from the government?

The second issue is a technical objection. The requirement of a person having an “accurate” IP address is impossible. While some service providers keep stable and assigned IP addresses, many (such as cable companies) do not. The law would prohibit posting from an internet cafe as the IP address is not that of the poster, but the cafe. Many internet users use proxies to protect their names and addresses from sites with tracking cookies and who compile information on users. The senators who wrote this law clearly have no idea of how the internet works from a technical aspect.

Our final objection is a legal one. Quite simply the law is un-Constitutional.

As Professor Eugene Volokh points out on the Volokh Conspiracy:

The bill is unconstitutional, see Talley v. California (1960) and McIntyre v. Ohio Elections Comm’n (1995); the First Amendment, the Supreme Court has held, protects anonymous speech (except in limited conditions related to election campaigns).

The opinion in Talley v. California is dead on point:

Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind. Persecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all. The obnoxious press licensing law of England, which was also enforced on the Colonies was due in part to the knowledge that exposure of the names of printers, writers and distributors would lessen the circulation of literature critical of the government. The old seditious libel cases in England show the lengths to which government had to go to find out who was responsible for books that were obnoxious 65*65 to the rulers. John Lilburne was whipped, pilloried and fined for refusing to answer questions designed to get evidence to convict him or someone else for the secret distribution of books in England. Two Puritan Ministers, John Penry and John Udal, were sentenced to death on charges that they were responsible for writing, printing or publishing books. Before the Revolutionary War colonial patriots frequently had to conceal their authorship or distribution of literature that easily could have brought down on them prosecutions by English-controlled courts. Along about that time the Letters of Junius were written and the identity of their author is unknown to this day. Even the Federalist Papers, written in favor of the adoption of our Constitution, were published under fictitious names. It is plain that anonymity has sometimes been assumed for the most constructive purposes.

One cannot read this bill without seeing how it can be used to restrict and curtail speech. Speech made by an individual who wishes to remain anonymous is one of the cornerstones of this country. It can be argued the United States would not even exist without anonymously authored speech and writings.

The New York Republicans, following the lead of the Democrats, are now trying to legislate that speech is not a right, but a privilege.

Lord save us from the idiots we elect.



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