Is anonymous speech protected by the First Amendment?

by Dan | Aug 28, 2019 | Uncategorized

We all know the First Amendment protects freedom of speech, but in an era when people can post online under a pseudonym or without identifying themselves by a name at all — real or fake — the question arises: does the First Amendment also protect speech published or articulated by someone whose identity is unknown?

Unfortunately, there is always a possibility that someone’s online account — social media, blogs, forums, etc. — can be hacked or connected to their real life identity in a data breach, due to the nature of website registrations requiring a person’s name and email address to create the account in the first place.

Although there are always technology-related risks when it comes to online privacy, what about the legal risks? Are anonymous commenters protected against legal retribution if someone or some organization wants to sue them for what they published online? Should anonymous commenters — or the platform on which they posted the controversial content — be forced to reveal their identity if a legal concern arises?

There have been countless uses of pseudonyms connected to the issue of freedom of speech throughout American history: Ben Franklin’s “Silence Dogood,” Alexander Hamilton’s “Phocion,” Thomas Jefferson’s “correspondent from Virginia” and many others.

But the proliferation of web technologies and electronic communication has made it easier than ever for people to conceal their identities while publishing content, which brings us back to the original question: should the First Amendment apply similarly to speech articulated under a pseudonym or completely anonymously? Let’s unpack what we currently understand about the interplay between the First Amendment and anonymous speech:

McIntyre v. Ohio Elections Commission

In this 1995 Supreme Court decision, the majority wrote: “Anonymity is a shield from the tyranny of the majority….It thus exemplifies the purpose behind the Bill of Rights and of the First Amendment in particular: to protect unpopular individuals from retaliation…at the hand of an intolerant society.”

In other words, SCOTUS found that anonymity ought to be protected when it comes to freedom of speech, whether it’s written expression, public speech or online speech. In the 2017 case of Signature Management Team, LLC v. John Doe, the U.S. Court of Appeals for the Sixth Circuit found anonymous speakers/commenters can maintain their anonymity even if they lose a legal case against them, due to the likelihood of harm resulting from such revelations.

A more recent district court case involving a non-American Reddit commenter and Jehovah’s Witnesses went a step further by not only protecting individuals’ rights to free, anonymous speech but also protecting freedom of speech for an Internet user not living in the United States.

When is Anonymous Speech Not Protected?

According to Digital Media Law Project, “those harmed by unlawful anonymous speech — whether by defamation, misappropriation of trade secrets, or whatever else — also have a right to seek compensation for their injury.” This means that anonymous commenters are not always 100% protected — if the speech involves illegal actions and/or harmful consequences, there’s a risk the anonymous individual’s identity could be unmasked.

Is panhandling protected by the First Amendment?

by Dan | Aug 14, 2019 | Uncategorized

Many cities across the country have been restricting the practice of panhandling — begging or requesting money in public places. But are these laws potentially infringing on the panhandlers’ First Amendment right to freedom of speech? This question becomes more complicated when you take into consideration the differences between verbally asking strangers for money and the act of simply holding a sign that asks for money.

While many people do not appreciate being approached by panhandlers, the fact remains that they have a right to be there and exercise their free speech rights in asking for money, work opportunities, food or other items. But to what extent is panhandling protected by the First Amendment? Let’s explore this more in-depth:

Village of Schaumburg v. Citizens for a Better Environment

In this 1980 Supreme Court case, the Citizens for a Better Environment nonprofit organization sued the village of Schaumburg for what it alleged was an unconstitutional ordinance against door-to-door solicitation by charities that did not use at least 75 percent of their funds for “charitable purposes” (excluding administration costs such as nonprofit employees’ salaries).

When the case reached the Supreme Court, it resulted in a 8-1 decision in favor of the nonprofit. The majority opinion included important arguments that later became integral to protecting panhandlers’ rights, including statements such as “solicitation for money is closely intertwined with speech” and “solicitation to pay or contribute money is protected under the First Amendment.”

Passive vs. Aggressive Panhandling

There have been multiple legal battles involving cities and solicitation restrictions since Citizens for a Better Environment, many of which have ruled in favor of panhandlers on the basis of free speech. Other decisions cite the Fourteenth Amendment alongside the First Amendment.

One common area of debate when it comes to anti-solicitation ordinances is the passivity or aggressiveness of the panhandling. For example, is it someone standing on the side of a road, holding a sign that asks for money? Or is it someone actively (and perhaps menacingly or threateningly) pursuing citizens and harassing them for money? There’s a big difference between the two main forms of panhandling, the latter of which may be considered robbery or public nuisance/disturbance and thus, not protected by the First Amendment.

Common Ordinance Restrictions

According to the First Amendment Encyclopedia published by Middle Tennessee State University, city ordinances regulating panhandling and other forms of solicitation in public spaces must follow these guidelines:

• be neutral in content;
• be narrowly tailored;
• leave open ample alternative channels of communication;
• serve a significant government interest that is pressing and legitimate.

Consequently, many municipalities are constantly updating their solicitation ordinances to avoid trampeling on panhandlers’ First Amendment rights while simultaneously balancing the public’s desire for minimal nuisances.