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"Kentucky Lawmaker Wants to Make Anonymous Internet Posting Illegal":

WTVQ reports (thanks to Andy Banducci for the pointer); the bill text is here. Pretty clearly unconstitutional, see McIntyre v. Ohio Elec. Comm'n (1995) and the cases on which it relies. Plus of course any such state law would likely violate the dormant Commerce Clause, because it would end up affecting speech throughout the whole nation (given that even national ISPs would have to implement such policies for all their users, because national ISPs "do[] business" in Kentucky).

I should note that the First Amendment doesn't categorically protect anonymity: If someone sues you, or the government tries to prosecute you, based on your speech, and there's a credible claim that your speech indeed falls into a First Amendment exception, the plaintiff or prosecutor can indeed get subpoenas aimed at uncovering your identity. Likewise, the Court has upheld certain kinds of identification requirements for expensive speech related to candidate campaigns, and for corporate speech even about ballot measure campaigns; and identification requirements of some sorts may indeed be constitutionally permissible. Nonetheless, the constitutional rule is still that anonymity is presumptively protected, and a blanket ban on online anonymity such as this one would be pretty clearly unconstitutional.

Finally, let me mention that this is another area in which generalizations such as "suppression of speech has become a liberal monopoly" are mistaken. The legislator who introduced the bill is a Republican, and the two Justices who would have generally rejected a right to anonymous speech in McIntyre were Justice Scalia and Chief Justice Rehnquist. And this was so even though the law applied to clearly political speech; even "suppression of [political] speech has become a liberal monopoly" (an argument tailored to exclude matters such as sexually themed speech) are inaccurate here.

Of course, in McIntyre, other conservatives and moderate conservatives — Justices O'Connor, Kennedy, and Thomas — voted to protect the right to anonymous speech. And where the spending of substantial sums of money for speech is involved, liberals tend to be more willing than conservatives to require some sorts of disclosure (though many conservatives support such disclosure as well). But that just helps show that both the "liberals want to suppress speech / conservatives want to protect speech" and the "liberals want to protect speech / conservatives want to suppress speech" arguments are generally not sound today, at least when put at that level of generality.

WHOI Jacket:
Thankfully, I'd imagine the chances of this passing are next to nil.
3.10.2008 2:43pm
Marc J. Randazza (mail) (www):
"suppression of speech has become a liberal monopoly"

That is not only an absurd generalization, but patently incorrect.

From where I stand, I more frequently see so-called conservatives (not real ones, mind you) who are in favor of censorship.
3.10.2008 2:49pm
holdonthere:
Marc, read the whole sentence. It states, "Finally, let me mention that this is another area in which generalizations such as 'suppression of speech has become a liberal monopoly' are mistaken"
3.10.2008 3:02pm
Bruce Hayden (mail) (www):
I would suggest that this bill might have serious Commerce Clause issues if passed (along with the obvious 1st Amdt. issues). The Commerce Clause problem is that Internet posting is typically interstate, and maybe even foreign. So, we would have the state of KY trying to regulate what I am doing here in Nevada. Good luck.
3.10.2008 3:06pm
Cornellian (mail):
Represntative Couch says enforcing this bill if it became law would be a challenge.

Now that's an understatement.
3.10.2008 3:17pm
Paul Milligan (mail) (www):
So, I 'sign up' somewhere as ;

Eugene Volokh
123 Law St.
Litigation, NC

What is the ISP supposed to do, verify that ? This clueless idiot needs to stick to whatever things he knows. This aint' one of them.
3.10.2008 3:20pm
SHG (www):
Representative Tim Couch (R-Hayden) Proprietor of Hayden Grocery and Couch Shell Station.
3.10.2008 3:24pm
Dave N (mail):
But that just helps show that both the "liberals want to suppress speech / conservatives want to protect speech" and the "conservatives want to protect speech / conservatives want to suppress speech" arguments are generally not sound today, at least when put at that level of generality.
Shouldn't the last phrase be "liberals want to protect speech / conservatives want to suppress speech"? Not so much in terms as to whether the statement is true but rather so that it accurately contrasts the preceding syllogysm.
3.10.2008 3:35pm
Dave N (mail):
Oh, and yes, the proposed law seems both stupid and unconstitutional--though I must say I am relieved that it was proposed by a small businessman who doesn't know better than by an attorney who should.
3.10.2008 3:38pm
Eugene Volokh (www):
Dave N: D'oh! Fixed, thanks.
3.10.2008 3:50pm
PersonFromPorlock:
As I commented on another forum, making everyone wear a nametag when in public would do much to eliminate the scourge of rudeness, too. Perhaps Mr. Couch would be willing to propose such a law?
3.10.2008 3:57pm
arbitraryaardvark (mail) (www):
And yet, in at least 4 cases over 30 years, Kentucky has rejected the holding in McIntyre and Talley and gotten away with it. E.g Kentucky Right to Life v Terry. See also Moorehead v Kentucky.
Both the Kentucky supreme court and the 6th circuit have gone along with Kentucky being an anonymous speech-free zone (rather than an anonymous free speech zone.) Ohio continues to prohibit political speech without disclaimers, even though McIntyre told them they couldn't do that anymore. In Indiana, you can go to jail for anonymous political speech. I've won and lost cases here on that issue. Stewart v Taylor, Majors v Abell.
It's related to what Eugene wrote yesterday, about how there aren't enough libertarian lawyers around even to enforce the Supreme Court's precedents (much less to enforce what the constitution means, but the Court hasn't spoken about, or has gotten it wrong.)
If there is anybody willing to serve as co-counsel in Kentucky or Ohio or elsewhere to challenge the current unconstitutional disclaimer laws, drop me a line.
3.10.2008 4:11pm
Smokey:
If we can't have an anonymous handle, will I have to go back to
Thurston Howell IV?
3.10.2008 4:44pm
Sean O'Hara (mail) (www):
I'm not posting anonymously. I'm just lying about who I am.
3.10.2008 5:23pm
Anonymous Troll (mail) (www):
I haz haxor'd Couch!
I = 1337!!!1!! OMFG!!!

*insert witty lolcat here*
3.11.2008 2:58am
The Real Bill (mail):
That was funny.
3.11.2008 6:13am
Chimaxx (mail):
3.11.2008 7:45pm
dweeb:
But that just helps show that both the "liberals want to suppress speech / conservatives want to protect speech" and the "liberals want to protect speech / conservatives want to suppress speech" arguments are generally not sound today, at least when put at that level of generality.

It would be more accurate to say that the majority in power in any given jurisdiction/venue generally seeks to suppress speech. On University campuses where liberals constitute a majority of leadership, they suppress conservative speech. I places where conservatives hold sway, they suppress speech. Obviously, this is because power only has an issue with dissident speech.
3.11.2008 11:35pm