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Nameless in Cyberspace: Anonymity on the Internet, Cato Briefing Paper No. 54

Nameless in Cyberspace: Anonymity on the Internet, Cato Briefing Paper No. 54

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Published by Cato Institute
Executive Summary

Proposals to limit anonymous communications on the Internet would violate free speech rights long recognized by the Supreme Court. Anonymous and pseudonymous speech played a vital role in the founding of this country. Thomas Paine's Common Sense was first released signed, "An Englishman." Alexander Hamilton, John Jay, James Madison, Samuel Adams, and others carried out the debate between Federalists and Anti-Federalists using pseudonyms. Today, human rights workers in China and many other countries have reforged the link between anonymity and free speech.



Given the importance of anonymity as a component of free speech, the cost of banning anonymous Internet speech would be enormous. It makes no sense to treat Internet speech differently from printed leaflets or books.
Executive Summary

Proposals to limit anonymous communications on the Internet would violate free speech rights long recognized by the Supreme Court. Anonymous and pseudonymous speech played a vital role in the founding of this country. Thomas Paine's Common Sense was first released signed, "An Englishman." Alexander Hamilton, John Jay, James Madison, Samuel Adams, and others carried out the debate between Federalists and Anti-Federalists using pseudonyms. Today, human rights workers in China and many other countries have reforged the link between anonymity and free speech.



Given the importance of anonymity as a component of free speech, the cost of banning anonymous Internet speech would be enormous. It makes no sense to treat Internet speech differently from printed leaflets or books.

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Published by: Cato Institute on Mar 26, 2009
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 Nameless in Cyberspace
 Anonymity on the Internet 
by Jonathan D. Wallace
 Jonathan D. Wallace publishes
Ethical Spectacle
 , available at http://www.spectacle.org/, and is coauthor of 
Sex,Laws and Cyberspace
(New York: Henry Holt, 1996). He is a software executive and attorney in New York City.
No. 54
Proposals to limit anonymous communica-tions on the Internet would violate free speechrights long recognized by the Supreme Court.Anonymous and pseudonymous speech playeda vital role in the founding of this country.Thomas Paine’s
Common Sense
was first releasedsigned, “An Englishman.” Alexander Hamilton,John Jay, James Madison, Samuel Adams, andothers carried out the debate betweenFederalists and Anti-Federalists using pseudo-nyms. Today, human rights workers in Chinaand many other countries have reforged the link between anonymity and free speech.Given the importance of anonymity as acomponent of free speech, the cost of banninganonymous Internet speech would be enor-mous. It makes no sense to treat Internet speechdifferently from printed leaflets or books.
December 8, 1999
 
Introduction
In a 1997 decision, a federal district court inGeorgia invalidated a state law criminalizinganonymous and pseudonymous Internet com-munications.
1
In so doing, the court issued adecision consistent with centuries of Americantradition and jurisprudence. Throughout thehistory of this country, pseudonymous andanonymous authors have made a rich contribu-tion to political discourse. Had the court heldany other way, it would have fallen into the com-mon trap of treating the Internet as sui generis,unrelated to any prior communications media.Instead, the court correctly recognized that thereis no distinction to be drawn between anony-mous communications on the “Net” and in aleaflet or a book.
2
Unfortunately, the threats to anonymousNet discourse have continued to proliferatesince the Georgia decision. U.S. and foreignlaw enforcement authorities continue toregard anonymity as a threat to public order.Various pending proposals would encourage,or mandate, changes to the infrastructure of the Net that would eliminate it as a mediumfor anonymous discourse.
Anonymity and Pseudonymity,Cornerstones of Free Speech
Controversial and thought-provokingspeech has frequently been issued fromunder the cover of anonymity by writers whofeared prosecution or worse if their identitieswere known.
Cato’s Letters
, an influentialseries of essays about freedom of speech andpolitical liberty first appearing in 1720, werewritten by two British men, John Trenchardand Thomas Gordon, under the pseudonym“Cato.”
3
Cato’s Letters
had a wide following inAmerica:
4
Benjamin Franklin and numerouscolonial newspapers reprinted the letters;John Adams and Thomas Jefferson bothquoted Cato.
5
“In the history of political lib-erty as well as of freedom of speech and press,no 18th-century work exerted more influ-ence than
Cato’s Letters
,” historian LeonardLevy has written.
6
In 1735, John Peter Zenger was arrestedfor seditious libel for publishing pseudony-mous essays by Lewis Morris, JamesAlexander, and others attacking New York governor William Cosby.
7
Zenger, a Germanprinter who immigrated to the United States,also republished several of 
Cato’s Letters
.Andrew Hamilton of Philadelphia defendedZenger. In his stirring oration to the jury, heasked them to lay “a foundation for securingto ourselves, our posterity, and our neigh-bors” the right of “exposing and opposingarbitrary power . . . by speaking and writingtruth.”
8
The jurys acquittal of Zenger helpedto end common law prosecutions of American writers and publishers underBritish common law.Thomas Paine’s
Common Sense
, acclaimedas the work that first sparked Americans tothink of separating from Britain, was firstpublished signed simply “An Englishman.”
9
Perhaps equally famous, Alexander Hamilton,John Jay, and James Madison wrote
TheFederalist Papers
under the joint pseudonym“Publius.”
10
They were answered by the Anti-Federalists, who wrote under such names as“A Federal Farmer” (Richard Henry Lee),
11
“Candidus” (Samuel Adams),
12
and evenanother “Cato” (Gov. George Clinton).
13
In the following century, as the tensionsbetween North and South mounted, many writ-ers on the volatile issue of slavery also shieldedthemselves behind pseudonymous identities.
14
For example, “A Colored Baltimorean”
15
wrotethat black people considered themselvesAmerican and desired to live in America inequality. “Communipaw” wrote about black economic and social life and about racial preju-dice among white abolitionists.
16
Women aboli-tionists writing pseudonymously included“Magawisca”
17
and “Zillah,”
18
who suggestedthat abolitionists should confront inequalitywithin their own movement.Pseudonymity has continued to play animportant role in political speech in this cen-tury. George Kennan, a high-ranking memberof the staffs of General George C. Marshall
2
Throughout thehistory of thiscountry, pseudon-ymous andanonymousauthors havemade a rich con-tribution to polit-ical discourse.
 
and President Harry S Truman and consid-ered by many to be the architect of America’spostwar policy of “containment,” signed hisinfluential 1947 essay, “The Sources of SovietPower,” merely as “X.”
19
Politicians, includingpresidents, communicate anonymously withthe press when they wish to express ideas orcommunicate information without attribu-tion; press reports are full of quotes attributedto sources such as “a senior State Departmentofficial” or “a senior White House staff mem-ber.” Pseudonymity has also protected peoplestigmatized by prior political speech or associ-ation; many blacklisted writers continued towork throughout the McCarthy era by usingnames other than their own.
20
The Supreme Court onAnonymous Speech
The Supreme Court has consistently heldthat anonymous and pseudonymous speechis protected by the First Amendment. In itsmost recent statement,
 McIntyre v. OhioCampaign Commission
,
21
the Court invalidatedan Ohio ordinance requiring the authors of campaign leaflets to identify themselves.
22
The Mrs. McIntyre in the case had been finedfor handing out anonymous leaflets during alocal school board campaign.
23
The Courtrepeated what it had said in
Talley:
“Anonymous pamphlets, leaflets, brochuresand even books have played an importantrole in the progress of mankind.”
24
It recog-nized that an author may have a variety of valid motives for shielding her identity:The decision in favor of anonymitymay be motivated by fear of econom-ic or official retaliation, by concernabout social ostracism, or merely bya desire to preserve as much of one’sprivacy as possible.
25
The Court compared the Ohio ordinanceto the newspaper right-of-reply law it hadinvalidated in
 Miami Herald Publishing Co. v.Tornillo,
26
noting that the ordinance com-pelled speakers to add their own names aspart of the content. “[T]he identity of thespeaker is no different from other compo-nents of the document’s content that theauthor is free to include or exclude.”
27
Anonymity, the Justices pointed out,“provides a way for a writer who may be per-sonally unpopular to ensure that readers willnot prejudge her message simply becausethey do not like its proponent.”
28
The Court astutely placed Mrs. McIntyre’sleaflet in the context of centuries of anony-mous political discourse. “Under ourConstitution, anonymous pamphleteering isnot a pernicious, fraudulent practice, but anhonorable tradition of advocacy and of dis-sent. Anonymity is a shield from the tyrannyof the majority.”
29
Though the SupremeCourt usually refers only to prior case lawand scholarly legal writings in its holdings, inthis case the Justices took the unusual mea-sure of citing John Stuart Mill’s
On Liberty
insupport of the proposition that anonymity isa protection against the majority’s tyranny.
30
 McIntyre
was not a lightning bolt from theblue but the culmination of a consistent andcarefully reasoned series of cases dating back to the 1950s. In its earlier jurisprudence, theCourt repeatedly upheld the right of theNAACP to keep its membership lists secretfrom state prying.
31
Later, citing an astonish-ing record of federal government harassmentand dirty tricks, the Court excused the OhioSocialist Workers’ Party from state require-ments that it disclose its list of contributors.
32
Moreover, the Court had also previouslyinvalidated a Los Angeles ordinance againstthe distribution of anonymous leaflets.
33
The parallel between Mrs. McIntyre’sleaflet and an unsigned Web page or e-mailon a political topic is obvious. Nevertheless,people who fail to see the analogy betweenthe Internet and the print media continue tocall for a ban on anonymity in cyberspace.
The Georgia Law
In 1996, the Georgia legislature passed
3
The SupremeCourt has consis-tently held thatanonymous andpseudonymousspeech is protect-ed by the FirstAmendment.

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