Facebook Age and Anonymity: Civility vs. Freedom of Speech

June 2, 2011 — -- The debate over anonymity on the Internet is heating up again. Courts increasingly encounter the question of when to order the unmasking of anonymous online speakers; websites grapple with whether to allow anonymous commenting or to push their users toward speaking under their real names; legislators contemplate kids' privacy bills that could end up requiring every Internet user to identify themselves; and a spate of articles and opinion pieces this year have called for an end to anonymous Internet speech altogether.

As plaintiffs sue John and Jane Does who have allegedly defamed them, courts are making decisions about the limits of legal protection for anonymous online speech. In some jurisdictions, at least, the developing body of law is treating anonymous speech with the consideration it deserves. But some websites seek to circumvent the issue by ruling anonymous comments out entirely.

And Congress is, perhaps inadvertently, adding to the debate with bills like the proposed Do Not Track Kids Act of 2011, which aims to protect minors' personal information but would, ironically, require every user to hand over more personal information about themselves, as cautious website operators demand users' age or date of birth to tell which of their users are adults or children. Courts have struck down other bills that would have required widespread online age-verification, in part because of their chilling effect on anonymous speech.

Anti-anonymity advocates tend to point to the abhorrent behavior of some individuals and argue that website operators should stop allowing anonymous comments in order to promote more accountable online activity. Stanley Fish's New York Times op-ed review of "The Offensive Internet" commended certain "free speech advocates" for having "second thoughts" about free speech on the Internet and applauded the idea of holding website operators legally responsible for the content posted on their sites by others. (Most free speech advocates I know, however, would not agree.) But, as the editors of TechCrunch discovered when they implemented Facebook's comment system, with its emphasis on real-name commenting, revoking users' ability to speak anonymously can have a stultifying effect on their conversation.

To be sure, anonymity is a double-edged sword. It can enable unethical behavior, but it can also enable a much richer discourse. Anonymity allows speakers to express unpopular and dissenting views without fear of retribution, and permits individuals to participate in different online communities on their own terms. The ability to seek out information safely and explore a wider world should not be taken for granted. For example, were online participation to require users to bind their comments and activity to their real names, the online activities of gay and lesbian teens seeking support on sites like itgetsbetter.org could lead to very serious consequences (if these activities took place at all). Stories abound of teenagers kicked out of their homes -- or worse -- when their sexual identities were disclosed accidentally or without their consent.

Anonymity's Deep Roots

Critics of online anonymity give short shrift to the important role of anonymous speech in our American political heritage. Anonymous speech was far from a rare thing before the Internet. Alexander Hamilton, James Madison, and John Jay would surely disagree; they published their Federalist Papers pseudonymously to prevent their celebrity from overshadowing their arguments, and the identity of their opponent – the "Federal Farmer" – has still not been conclusively established. The revolutionary pamphlet Common Sense was published anonymously, permitting Thomas Paine to engage in essential political discourse without facing charges of treason. Should we nominate Paine for the title of "First American Troll"?

Standing Against 'Tyranny of the Majority'

The Supreme Court has consistently recognized the vital role of anonymous and pseudonymous speech to democratic dialogue and dissent. In McIntyre v. Ohio Election Commission, the court wrote that anonymous speech is part of "an honorable tradition of advocacy and dissent. . . . Anonymity is a shield from the tyranny of the majority."

For dissidents and ordinary citizens in some societies, maintaining anonymity online can mean the difference between life and death. In Saudi Arabia, women often register with social networks pseudonymously because using their real names can be dangerous: In 2008, a woman from Riyadh was killed by her father for chatting with a man on Facebook. And in 2009, many pro-reform Iranians living abroad changed the last names on their profiles to "Irani" in response to widespread governmental harassment over social media activities associated with their real names. That way, they could continue to voice dissent without putting friends and family at risk.

Of course, criminals and trolls also seek to mask their identities online. But it is shortsighted to suggest that the only response is to tear away the veil of anonymity entirely. Many services want to protect their users and the integrity of their businesses from abuse; these sites can craft moderation policies that cultivate the online environments they desire. But the success of those choices in some cases does not suggest that anonymity should be restricted in all cases.

Open online communities give an outlet to people who may not have the opportunity to speak through more traditional media that are carefully managed by content gatekeepers. Put bluntly, anonymous communication has empowered those who might otherwise be silenced. These aspects of Internet communication -- access to content hosts and the ability to speak anonymously -- are far from accidental; they are the result of conscious, technical policy choices rooted in a deep respect for the right to free expression.

As more of our daily dialog migrates to cyberspace, a decision to irrevocably chain every voiced opinion to our real names would weaken that vital "shield from the tyranny of the majority." And imposition of liability on intermediaries would surely destroy many of the platforms and fora for online speech that exist today.

If those opposing the long-standing traditions of anonymous speech have their way, there really would be no such thing as free speech on the Internet. That would be a huge loss for our society and the world. On that point, this free-speech advocate has no second thoughts.

Leslie Harris is President and CEO of the Center for Democracy & Technology. Emma J. Llanso is CDT's Bruce J. Ennis Foundation Equal Justice Works Fellow.