Lawyer Wants To Wipe Out Anonymous Speech If It's Critical Of Someone

from the promoting-anti-social-behavior dept

Lawyer Peter Baugher recently wrote an editorial piece for the Chicago Tribune which rehashes a bunch of really bad arguments in an attempt to decimate the First Amendment by effectively removing anonymity online. Every so often we hear proposals like this. People get upset about something written online by someone who is anonymous, and they suddenly decide that anonymity itself is the problem -- not recognizing that anonymity is actually protected by the First Amendment. Baugher mentions the famous cases of Ken Zeran and the more recent AutoAdmit case. These are the standard cases used by those who hate (and misunderstand) the protections that Section 230 of the CDA provides.

Of course, both seem to be somewhat exaggerated, in that the key issue is about who should be liable, and what they should be liable for. Critics of Section 230 use both of these cases in a vague sort of way that says, "weren't they just awful? something must be done!" But they fail to take into consideration the amount of actual harm in both of those cases, as well as whether or not their proposed solutions will actually help. Baugher even seems to recognize this later in his writeup, in which he notes that opinion is not defamation. And yet, he seems to assume that it should still be illegal if someone has a bad opinion of you, because it "encourages anti-social behavior."

Baugher's solution is to say that if you are anonymous, anyone should be able to identify you or have your content removed:

We need a new legislative approach. The absolute immunity enjoyed by online service providers needs to be qualified. At the request of a user, service providers should be required to give anonymous posters a firm choice: agree to reveal who they are (to accept responsibility for their posts in their own names) or their posts will be taken down.

Through this simple mechanism, an alleged victim can either have the abusive information removed or discover the identity of the harasser.

I can't think of a worse solution. Anonymous speech is protected by the First Amendment. If the content is defamatory, there are mechanisms to reveal the poster, but if it's simply mean, well, the First Amendment says that's allowed. That's the nature of living in a free and open society that believes in the right to free speech. You won't like all of that speech.

Sometimes people have very good reasons for criticizing someone anonymously as well. What if that person is in a position of power over them? Letting anyone reveal who is making mean comments or to force their content down would create an astounding chilling effect on the ability to criticize anyone in power. I can't see how such a law would pass basic First Amendment scrutiny.

As for why this is a big deal to Baugher, someone in the comments on his article anonymously pointed out that Baugher has an (undisclosed) stake in all of this. His daughter, who very briefly made a name for herself in the "web 2.0" world for her own self-promotion, was mocked on a few blogs that nobody probably read, and Baugher went after them with legal threats and cease-and-desists, until many of them were taken down. Apparently, Baugher doesn't like his daughter being mocked by some anonymous critics, and thus, we should take away important First Amendment protections. I recognize the desire to protect ones own children, but we shouldn't let such emotional responses get in the way of important First Amendment rights.

Filed Under: criticism, first amendment, free speech, peter baugher, protections, section 230