Freedom to Hide Behind Avatar

The recent proposed law in Connecticut to verify age of and other social-networking site users has brought up an old question. Is anonymous speech protected under the 1st Amendment? The courts have a history of supporting anonymous speech as an extension of our right to free speech. Social-networking sites are just a new form of technology that allow people to exercise this right.

Almost a year ago the Supreme Court reaffirmed this position in MacIntyre v. Ohio Election Commission. This case was narrow, focusing on political speech, and said that anonymous political speech is permissible so long as it serves the interest of the state. While any good libertarian would be appalled by the “interest of the state” portion of this ruling, as all types of anonymous speech should be protected, the ruling still favored protecting anonymous speech.

A 1960 case, Talley v. California, overturned an ordinance in L.A. that banned anonymous speech in the form of pamphlets, political and non-political alike. Justice Black, the author of the opinion, said, “There can be no doubt that such an identification requirement would tend to restrict freedom to distribute information and thereby freedom of expression.”

The parallels between pamphlets and profiles are clear. MySpace, just like a pamphlet handed out on the streets of L.A., is used to promote bands, commercial products, religious causes, activism, and politicians. Just check out for proof of the parallels between pamphleteering and posting.

So if we grant that social-networking sites are the 21st century pamphleteers, then this proposed law would be unconstitutional were it passed.

The proposed age-verification law also clearly restricts freedom of assembly. Although this clause of the 1st Amendment was not written with social-networking websites in mind, clearly MySpace, Facebook, forums, and chatrooms are a form of assembly. Just like we’d find it unacceptable to have to register to meet with our friends in a public square or a private restaurant, we should find it equally worrisome that the Attorney General Blumenthal (#1 on our list) and his supporters would like us to register for the virtual equivalents.