Nearly half of the Republicans serving in the New York State Assembly have proposed legislation that would ban anonymous online comments.
If enacted, the legislation would require websites — including social networks and online newspapers — to remove all anonymous comments that are brought to the attention of administrators.
An anonymous comment could remain if the author “agrees to attach his or her name to the post and confirms that his or her IP address, legal name, and home address are accurate.”
UCLA law professor Eugene Volokh told The Daily Caller that the bill is “clearly unconstitutional.”
“The Supreme Court has held for 50 years that anonymous speech is protected,” explained Volokh, pointing to the 1960 case Talley v. California. “This kind of breach of anonymity on demand is just not constitutional.”
“I would love to hear from these legislators. … Presumably at least one of them should be able to speak to the constitutional objections to the statute,” Volokh added.
The sponsor of the state Senate’s version, Republican Thomas O’Mara, told TheDC that he had not initially considered that the legislation might ban First Amendment-protected speech.
“Today is the first day that these issues have been raised,” O’Mara said. “I haven’t gotten any comments from any of my colleagues in the Senate who said that this wasn’t a good idea.”
“I certainly didn’t introduce the legislation with the thought that it was violative of the First Amendment. We’re certainly looking forward to any and all input.”
The legislation’s enforcement mechanism — not currently specified in either the Assembly or Senate versions posted online — would likely be a fine, O’Mara said.
The bill is ostensibly a reaction to cyberbulling: “It’s an effort to deal with the problem. I’m hopeful that this will be helpful in combating that,” O’Mara explained, “or at least get a dialog going with the industry about this concern.”
O’Mara is the only sponsor of the Senate version, he told TheDC, but the 150-member Assembly’s version has 28 sponsors and co-sponsors — almost all Republicans.
Volokh said that victims of malicious online postings can currently go to court to unmask anonymous authors, or simply ask websites to remove comments. “If you say something anonymously and it is libelous, I could go to court for an order to identify you,” he said.
Republican state Assemblyman Jim Conte praised the legislation, writing that it would eliminate “mean-spirited and baseless political attacks that add nothing to the real debate.”
The legislation would “demand that those who spread rumor, conjecture or outright lies online be willing to come forward and defend the comments they post,” Republican Assemblywoman Claudia Tenney added. “We, as a society, have never expected anything less when potentially harmful words are put into print.”
As Wired magazine notes, the legislation would have banned the anonymously written Federalist Papers from online distribution.
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