Kentucky Fried First Amendment Rights

Rep. Couch

I won’t pick on the Commonwealth of Kentucky… even though doing so might be really easy. That would be an unnecessary cheap shot. I will, however, I will make fun of one Kentucky legislator.

Kentucky Representative Tim Couch filed a bill this week to make anonymous posting online illegal. The bill would require anyone who contributes to a website to register their real name, address and e-mail address with that site. Their full name would be used anytime a comment is posted.

If the bill becomes law, the website operator would have to pay if someone was allowed to post anonymously on their site. The fine would be five-hundred dollars for a first offense and one-thousand dollars for each offense after that.

Representative Couch says he filed the bill in hopes of cutting down on online bullying. He says that has especially been a problem in his Eastern Kentucky district. (source)

Yeah, I’m sure it is a big deal in Eastern Kentucky. At least Couch admitted this much:

Represntative Couch says enforcing this bill if it became law would be a challenge. (source)

Challenge #1, genius, you would have to amend the Constitution. The First Amendment protects an individual’s right to speak anonymously. See McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 342 (1995) (“[A]n author’s decision to remain anonymous . . . is an aspect of the freedom of speech protected by the First Amendment.”).

What this donkey also fails to remember is that without anonymous speech, there would likely be no United States of America. Neither Alexander Hamilton nor Benjamin Franklin affixed their names to their missives that fed the fires of the Revolution. If they had, they likely would have perished in the hangman’s noose, or in King George’s dungeons. The Federalists and Anti-Federalists alike were forthcoming in their political debates because they were shielded by their pseudonymity.

Someone buy this
for Rep. Couch

Today, political dissidents, corporate whistle-blowers, and other guardians of liberty are shielded by their anonymous nature. Without the ability to speak anonymously, the marketplace of ideas would feel a chilling wind blow through it, and more than a few members would close up shop.

Anonymous speech, if actionable, is not without consequences. Doe v. Cahill, a Delaware Supreme Court case from 2005, has been widely accepted as the blueprint for how to handle this issue. That case held that a plaintiff in a defamation action must provide evidence sufficient to overcome a motion for summary judgment before unmasking an anonymous speaker. That seems to adequately protect both anonymity and the reputations of those who are victimized by unfair attacks. Many courts have adopted a similar standard. The bottom line seems to be that if the plaintiff’s case is not completely frivolous, then he can get to the anonymous speaker’s identity.

So remind me again why we need another stupid law that would, if passed and enforced, smother a portion of our most cherished freedom?

Rep. Couch, you are our latest ass-hat.