New York State Republicans vs. the First Amendment

A group of Republicans in the New York State Assembly, who really should have better things to do, have contrived an extremely dangerous and wrong-headed plan that would seek to ban anonymous comments on online forums that are hosted within the state. The Guardian reports:

Online commenters aren’t exactly known for their kind words, but lawmakers in New York want to hold their constituents to a higher standard. A few Empire State lawmakers want to address that problem by doing away with anonymous commenting.

Identical bills in the senate and assembly require anonymous posts to be deleted by administrators of New York-based websites, including “social networks, blog forums, message boards, or any other discussion site where people can hold conversations in the form of posted messages.” 

The proposal has the tech and legal communities reeling – if not outright giggling…..

If the bills pass, website administrators would be required to provide a contact number or email address for people to request anonymous comment removals. Upon receiving a complaint, the website would then be required to contact the original commenter and give them a 48-hour window to identify their posts.

If the anonymous commenter chooses not to identify themselves by providing their IP address, legal name and home address within the 48-hour slot, the website must delete the comment. 

The text of the bill reads:

A web site administrator upon request shall remove any comments posted on his or her web site by an anonymous poster unless such anonymous poster 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. All web site administrators shall have a contact number or e-mail address posted for such removal requests, clearly visible in any sections where comments are posted.

Eugene Volokh was quick to note that the “the bill is unconstitutional, see Talley v. California (1960) and McIntyre v. Ohio Elections Comm’n (1995); the First Amendment, the Supreme Court has held, protects anonymous speech (except in limited conditions related to election campaigns).” As well it might. Students of American history will observe that such a law would have blocked the online publishing of the Federalist Papers, whose authors — Alexander Hamilton, James Madison, and John Jay — employed the psuedonym “Publius” in place of their own. Such considerations were clearly lost on the bill’s sponsors, including Republican senator Thomas O’Mara who claimed that the move would “help lend some accountability to the Internet age” and admitted that he hadn’t considered the constitutional implications until the story hit the news. (The first question being, “Why not?” He took an oath, after all.)

But it’s not only the constitutional and free speech questions that render the idea absurd. By and large, attempting to impose geographical restrictions on the Internet is a fool’s errand. It simply doesn’t work. There could be no greater disincentive to register web-based businesses in New York State or for content providers to use New York–based hosting providers than if such regulation made its way onto the books. In reality, so time consuming and complicated would compliance be that websites that enjoy significant traffic would most likely have to shut down their comments sections completely. Given that, for many websites, comments are an important source of both traffic and revenue, such an imposition would either adversely affect their profits or — more likely — force them to up and move somewhere else. And that somewhere else would likely be a state without such asinine laws.

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