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Lesson 48 - Free Speech 9:

Anonymous Speech

Anonymous speech generally gets the same protection as non-anonymous (attributed) speech. While anonymity may make it easier for people to do harm, it also makes it easier for people to express unpopular views without fear of reprisal from their employers, teachers, or neighbors. A law that, for instance, bans anonymous e-mail would be unconstitutional.

In fact, both the harms and benefits from anonymity come from one source: Lack of accountability.

People who speak anonymously are less likely to suffer harmful consequences from their speech. Some of those consequences (e.g., punishment for bad speech, such as threats or libel) would be justified, which is why we have misgivings about anonymous speech. Others (e.g., being fired for blowing the whistle on misconduct, or being shunned for expressing unpopular views) would be less justified, which is why we value the right to speak anonymously. Some might think that the harms of anonymity exceed its benefits, but the Court has generally concluded otherwise.

Note, however, that the right to speak anonymously doesn't prevent people from taking steps to find out your identity. Say you use an anonymous remailer to libel someone, or to infringe someone's copyright. If you get sued, then the plaintiff can get a court to order the remailer to turn over any records related to that message. If the remailer does indeed keep an audit trail of materials sent through it, there goes your anonymity.

authors:
Larry LessigDavid PostEugene Volokh



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