Anonymous Blogging And The First Amendment

December 14, 2009

Until recently there  wasn’t  much of a constitutional issue when it came to anonymous blogging.  The Supreme Court had ruled that anonymous speech was protected by the first amendment, and that was that. In 1995, the court held in the case of McIntyre v. Ohio Elections Commission that:

“”Protections for anonymous speech are vital to democratic discourse. Allowing dissenters to shield their identities frees them to express critical, minority views…Anonymity is a shield from the tyranny of the majority…It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation…at the hand of an intolerant society..”

Over the past year there have been a few State court decisions that muddy the waters. Check out this post on for recent developments.

A high profile case out of New York involved a model who was called, among other things, a “skank” and a “ho” in anonymous blog posts.  She hired an attorney to bring a defamation suit, and the lawyer filed a motion to compel Google to disclose the identity of the anonymous blogger. The judge ordered Google to reveal the blogger’s name.

The rationale relied on by the New York court was that since communication on the internet is easier and cheaper, First Amendment protections should not always protect anonymous bloggers who defame others.  There is disagreement in the legal community as to how to balance First Amendment free speech guarantees with libel and slander laws.

The U.S. Supreme Court has staunchly defended a broad, sweeping right to free speech. In New York Times v. Sullivan, the court wrote that ” debate on public issues should be uninhibited, robust, and wide open.” The Court has of course differentiated types of speech, creating a hierarchy topped by political and religious speech, and worked its way down through commercial speech towards the proverbial prohibition against shouting fire in a crowded theater.

Read this essay by A. Michael Froomkin for a comprehensive analysis of free speech law.

First Amendment Free Speech is not unlimited. It remains to be seen how the Supreme Court will treat anonymous blogging.

{ 1 comment }

Carrie December 14, 2009 at 3:09 pm

A shield law protecting bloggers was passed on Thursday (12/10), but the debate’s not over. Check out this article for more details:

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