← So to Speak: The Free Speech Podcast
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If you would ask Justice Thomas, he would say that freedom of press and of speech includes the right to be anonymous, because that's how the founders, that the founders believed anonymity or they interpreted anonymity to be part of freedom of press and freedom of speech. If you asked late Justice Scalia that same question, he would say, absolutely not. The freedom of speech and press has nothing to do with the right to be anonymous.
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Somewhere I read of the freedom of speech. You're listening to so to Speak, the Free Speech podcast, brought to you by fire, the foundation for individual rights and expression. Welcome back to so to Speak, the Free Speech podcast, where every other week we take an uncensored look at the world of free expression through the law, philosophy, and stories that define your right to free speech. I'm your host, Nico Perino. In the years leading up to the American Revolution, newspapers and pamphlets overflowed with essays signed Publius, Brutus and a.
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Farmer.
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The arguments helped shape a nation, but the author's real identities and names were nowhere to be found. From the revolutionary era to the digital age, the United States has maintained a deep tradition of protecting anonymous speech as a core feature of democracy, even as it's grown more controversial. It allows people to challenge those in power. It protects writers from retaliation, and it keeps the focus on the argument itself and not on who's making it. So what did anonymity make possible in early America? Why did the Founders embrace it? And what does that history tell us about today's debates over online speech, accountability, and identity? As part of our 250th anniversary series, we're revisiting this often overlooked feature of the American experiment with Jeff Kosseff, a non resident senior legal fellow at the Future of Free Speech and the author of of the United States of Anonymous, which explores how the right to anonymity has shaped American law and culture. Jeff, welcome onto the show.
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A
Thanks so much for having me.
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B
So let's start at the top. What is anonymity?
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So anonymity is the ability to separate your identity from your speech or other activities that you're associated with.
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B
And it's different than pseudonymity, right?
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A
It's somewhat different, and they get used interchangeably. But pseudonymity would have an identifier that's not your real name that persistently is associated with the speech that you're making.
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B
So it's kind of like a pen name.
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A
Exactly.
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B
And what are some of the reasons that people might want to stay anonymous?
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Well, there's a lot of different reasons. So one might be Legal. So that you could see in debates about online anonymity and all the way going back to anonymity in the early press, where someone might fear that they could get sued for what they're saying, they might fear that they could be arrested, including in many parts of the United States today, that's still possible. That's one rationale, but it's not the only reason. Another is safety. So people, when they say things that might be controversial, might prove revoke others. They might find someone showing up at their home or their workplace wanting to really threaten them. So that's another reason. There's an economic motivation where someone could simply fear losing their job, losing their livelihood for what they're saying. So they want to still say their thoughts, but they don't want to necessarily associate their names with it. There's also privacy. There are many privacy interests associated with speaking about things that might be controversial, might just be very personal, and you might still want to communicate those thoughts, but you don't want everyone to know that you're the one who had them. Then there's an often overlooked motivation that I call the speech motivation for anonymity, where your speech is simply different than when you're saying it under your real name. So if you're. Everyone's identity has things that are associated with them, what their past work history is, who they've been associated with. And by associating their real identity with these thoughts and this expression, they might be undercutting the actual value of the ideas by having that baggage associated with it.
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B
So you write in your book, many framers who wrote and negotiated the Constitution had long relied on pseudonyms to persuade the masses and criticize the powerful. Anonymity and pseudonymity undergird American democracy. In what ways?
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A
So in many ways, a lot of it is the speech motivation. So there were, frankly, people who had business dealings, political decisions, disputes, where they felt that they wanted to communicate, but they didn't necessarily want to have their names associated with that speech. But particularly in the pre revolutionary war context, there were many people who really feared retaliation from the monarchy for their speech because they were stressing the need for independence and they were speaking out against the king. And those were things that you wouldn't necessarily want to have your name associated with because you could fear that you could be arrested or you could suffer other consequences.
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B
Yeah. So in Great Britain, they had this common law crime of seditious libel. Right. And that was imported over to the colonies. And one of the early famous trials in American history. I should Say early American colonial history was the trial in 1735 of John Peter Zenger, who was a New York publisher, brought up on a sediptuous libel charge for criticizing the then colonial governor of New York, William Crosby. Bill Crosby, not the same, no relation. And he was tried. And during the trial, he couldn't cite truth as a defense because under the crime of seditious libel, the greater the truth, the greater the libel. Now, fortunately, a jury of his peers refused to convict him. It was one of the early cases of jury nullification in America. But what could John Peter Zenger have expected if he was prosecuted for seditious libel and convicted of it? Like my understanding is that going back into British history, seditious libel carried it with it. The punishment of being hung, drawn and quartered, I don't know if that was still in effect in the 1700s, but you could see why someone who risked capital punishment might not want to speak with their name attached to it.
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A
Yeah, exactly. And I think there's severe punishments. And I think the other thing to keep in mind for Zenger was that it really is seen as a victory over these awful seditious libel prosecutions. But it also was an anonymity dispute. And it wasn't that he was anonymous, it was that he was publishing controversial anonymous speech. And that doesn't get all that much attention because that wasn't really the legal issue in the case. But it really was not just a general press freedom case, but it also was an anonymity case.
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B
There was a review of American political pamphlets from 1763 to 1765 that found 55% of them were published anonymously. What were some of these anonymous publishings? Why were people doing it? When we think of the Constitution and the debate surrounding the Constitution, Federalists, the anti Federalists, all those folks were debating anonymously as well, weren't they?
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A
They were. So there are, again, many different reasons. And I think before the war and after, I think there were probably very different motivations, and it really depends also on who is speaking. So one of the most influential political pamphlets, Common Sense, by Thomas Paine, he published that as written by an Englishman, and he probably was not going to fear danger to himself at that point because there was a lot of danger that he was going to encounter anyway. But I gather, and we don't have great records on this, but I gather from what he had written that that's more of the speech motivation, that he wanted to have his speech and his ideas stand alone. I think there were others who argued for Independence, who protested different policies of the king, who really did fear their safety, they feared their livelihood. They feared going to prison. So there are a lot of different reasons. Now, after the war, after Independence, I think probably the greatest example of early anonymous speech was the Federalist Papers, and that was really the debate over ratification of the Constitution. And you had both the Federalists who supported this Constitution to get us out of this really ineffective confederated government. They were trying to convince New Yorkers through New York newspapers to ratify the Constitution. And you had the anti Federalists who opposed this more stronger, more centralized federal government. And they debated with pseudonyms. And for the Federalist Papers, it was Hamilton, Madison and Jay who wrote under the pseudonym of Publius. And they actually took some pretty interesting operational steps to hide their identities at the time. So there was obviously some speculation that that one or some of them were behind the Federalist Papers. But Madison, for example, wrote about his involvement with the Federalist Papers in cipher to prevent other people from knowing that he was one of the authors. So I think that was more motivated by the impact of the speech, because in Federalist 1, Hamilton wrote about, I want my argument to stand alone. And what you could really read from that is that Hamilton and Madison and Jay had a lot of association with their identities already. There were a lot of arguments. There were a lot of positions that were associated with them, and they wanted to make these arguments independent of what people knew and thought of them. So that's at least from reading the sources from the time. That's at least my best guess as to why they published that pseudonymously.
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B
Yeah. And similar, as you had noted with Thomas Paine and Common Sense, in the third edition, he explained why he wrote anonymously. Writing who the author of this publication is is wholly unnecessary to the public, as the object for attention is the doctrine itself, not. Not the man. And you can see why Thomas Paine would not want the argument to be associated with the man, because he was, as we discussed on a previous podcast with Richard Bell a couple of weeks ago, he was a failure in everything he did until he wrote Common Sense. And so it's a way to kind of dismiss with any ad hominem attacks that opponents might be liable or eager to levy against the author. You write in your book about this person, Junius, who, you note is one of the most important examples of anonymous speech in the 18th century for our listeners who might be unfamiliar with that name. And I have to admit that I was unfamiliar with that name. Who was this person, and why were they so important.
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Okay, so Junius, if he were alive today, would just be a trash poster. Use the polite term on X, probably.
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Patrol.
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A
Yes. A troll. That's a good way to describe it. So this was in the 1760s, and to this day we don't know who he is. There are a lot of guesses and a lot of people have very confident guesses about different individuals. But he wrote these letters to the Public Advertiser newspaper in London that really excoriated some of the most influential politicians in England. And he accused people of having mistresses. And it was really, it was really some vicious stuff. And he was also a very good writer. So it got a lot of attention and he took a lot of steps to conceal his identity. So I. I've read he. He not only had the 60 plus letters that he published, but there were a lot of letters that he wrote to correspondence that have been published in different volumes. And what I found really interesting about this was the compendiums have a lot of his discussion of how he's keeping himself secret and why he's doing it. In terms of how he had multiple drop off locations for his letters there the editor of the newspaper would basically have to go pick it up, pick up the letters at different restaurants. And it was this really intricate framework. And in terms of why he basically.
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Deep throat.
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Yeah, yeah. I mean, he basically said, you know, I could be. I could be killed for this. And he, he actually was never discovered. But he did cross a line at a certain point where he went from criticizing politicians and powerful people in the government to writing a letter to the king that was published in the Public Advertiser. And that led to a trial not of him, because no one knew who Junius was, but of the publisher of the newspaper. And fortunately, for I think largely procedural reasons, the publisher ended up not being found guilty. But it was a very close call.
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B
Yeah. In one of his letters he writes, if I were known, I could no longer be a useful servant to the public. The mystery of Junius increases his importance. I think that's true. I mean, that's one. Especially with these anonymous or pseudonymous speakers, the. The mystery of who they are adds some intrigue into their arguments. I think about Satoshi Nakamoto, the guy who. Or gal, we don't know who they are, who published the original bitcoin paper. People are still to this day trying to figure out who that is. And it's an interesting hypothetical to wonder how bitcoin might have unfolded over the subsequent. What is it now, 15 years, maybe more. If folks had known this person's name, would it have taken off in the way that it did, or would it just have been associated with the individual and all the baggage that they might carry with their name? What did the Founders think about anonymous speech when they were writing the First Amendment? If you read the 45 words of the First Amendment, it says nothing about anonymity. I mean, it says very little about speech, too. But did the Founders expect the right to anonymity to be baked in the concept of the freedom of speech?
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A
Well, so it depends on who you ask. So if you would ask Justice Thomas, he would say that freedom of press and of speech includes the right to be anonymous, because that's how the Founders believed anonymity, or they interpreted anonymity to be part of freedom of press and freedom of speech. If you ask late Justice Scalia that same question, he would say, absolutely not. The freedom of speech and press has nothing to do with the right to be Anonymous. Those are two separate things. And they, in a 1995 case, they had some. A very, I think, a very interesting originalist battle about that in two competing opinions.
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B
I mean, what was his argument? If you just look at the practice of the Founders, they used anonymity and pseudonymity all the time. Was he arguing that it was more of a privacy right than a speech or press right?
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Well, so I think Justice Scalia was basically saying that while there was anonymity and pseudonyms in the press, that wasn't conceived as part of the freedom of the press and of speech. That wasn't seen as part of the freedom. The freedom was just being able to publish. It wasn't being able to take your name off of something.
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B
Yeah, well, you have this debate over First Amendment originalism. What does it actually mean? What were the sort of First Amendment free speech practices that the Founders intended to protect? But what, seven years after 1791, when the First Amendment was ratified, you get the Sedition act, which you'd think the whole American or colonial tradition would reject, another sort of seditious sedition act, given everything that unfolded was seditious libel. But it seems like the Founders didn't quite know everything that encompassed the freedom of speech when they drafted the First Amendment. I looked through some of the documentation surrounding the ratification and the passage of the First Amendment, and it's relatively thin.
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A
Yes, I would agree. So I think it's what Justice Thomas really focused on is what was the practice at the time. And he said, you know, you look at so much of the Influential writing in the press was done under pseudonyms or it was done fully anonymously. So he. So he was basically saying, if you're talking about freedom of press, then that has to encompass what so many people were doing in newspapers and pamphlets.
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B
Would the American Founding have unfolded differently, in your opinion, without so many of the arguments occurring anonymously?
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A
So I think that's hard to know. I think it would have been much more difficult for the same scenario to unfold because you likely would not have had some of these foundational documents. Now, I don't know for certain. If Thomas Paine were somehow required to put his name on Common Sense, would he have not just. Just not published it at all? I'm not entirely sure. I think the press would have looked very different overall, and you probably would have seen a lot less criticism of England because people. If there were some way to really regulate and require every newspaper that was distributed to include real names. So did they try to do that,
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or was there this expectation that you could publish anonymously?
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So there was an expectation you could publish anonymously. There were some proposals, both in England and in the United States, to require the names of authors to be in published writings, but they never really went anywhere. But there at least, was the talk. And it kind of. I mean, when you look at the discussion from the 1700s, it actually is very similar to what we're seeing now with people saying everything online should be done with someone's real name, because anonymity is just for people who want to do bad things. And so there's a lot of interesting parallels.
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B
And when did the United States Supreme Court. You mentioned the debate between Thomas Scalia over the right to be anonymous? When did the Supreme Court really start debating that idea? Was there any point in American history where the court was, like, up in the air about whether this was a right that was protected under the First Amendment?
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A
So it really started for the First Amendment, not with. Even with speech. It was for the right to association. And this happened in the 1950s, post Brown versus Board of Education. You had states not complying with Brown vs Board of Education, to put it mildly. And one of those states was Alabama. And the local NAACP chapter was one of the biggest advocates for compliance with desegregation and other civil rights protections. And Alabama really did not like the naacp, and they did not want the NAACP in the state trying to influence what the government did. So you had an attorney general who was an avowed segregationist, and he figured, how can I really intimidate the naacp? So he found A state corporation registration statute where you have to file certain paperwork. The NAACP thought since it had a national chapter that wasn't in Alabama, that it didn't need to comply. But rather than just telling the naacp, hey, you have to pay this filing fee and comply, he filed a lawsuit in state court to get the NAACP shut down, saying they violated this corporation statute. And not only that, but he initiated a discovery request for a membership list of everyone in the state who was a member of or donated to the naacp. And the case actually went before a judge who had also. Who had published a lot of pro segregation newspaper columns. And the judge granted this order and held the NAACP in contempt for every day that it did not turn over its membership lists. And the NAACP appealed to the Supreme Court of Alabama, which was not any help. And then the NAACP convinced the U.S. supreme Court to grant certificates and the U.S. supreme Court in overturning the state court order. Part of it focused on whether you could shut down an organization based on a failure to file a corporation's report. But the important part for anonymity was the part that said there is a right to be able to associate without having your name automatically disclosed. And it's not absolute, but you can't just pierce that anonymity for no reason at all, which is essentially what's happening here. So that was the first time that the right to anonymity came up. So it wasn't even about speech as such, but it was an association case.
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B
How do you square that decision from the middle part of the 20th century with some of the decisions or laws that came before it that sought to disrobe the members of the Ku Klux Klan? Because if I'm not mistaken, there were some laws. Right. That anti masking laws, for example, that were targeted at the Ku Klux Klan.
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A
Yeah. So it wasn't just about masks, but there was a 1928 case that required the disclosure of the list of officers of the Ku Klux Klan, and the Supreme Court upheld that. And in both the NAACP case and subsequent cases, you would see at oral arguments, the justices would say, well, how do you really square this? And it's tough to. And in some of the lower courts that heard some of the cases, they said, well, the Ku Klux Klan was up to bad stuff, and so there's more of a reason to require the disclosure. But I think part of it effectively changed that precedent from 1928, but it didn't necessarily say it as such. Now you're asking about the mask laws. Those have developed kind of in parallel. And the U.S. supreme Court has never heard a case about the mask laws. But we have had a number of lower courts hear those cases. And those are cases that both states, and this is long before COVID so this isn't about COVID masks, but states and local governments had laws, ordinances that restricted or prohibited certain uses of face coverings that conceal someone's identity in public places. And there were some exceptions for things like costumes, Halloween, that sort of thing. And they vary, they varied quite a bit. But you had courts ruling, these were challenged by the Ku Klux Klan saying, you know, these were intended specifically for our group and what they're doing is forcing our members to effectively disclose their identities. And you've had some courts uphold those statutes and other courts strike down those statutes. I found when I was researching the book, I got the case file for a fairly significant case from the 1990s in New York where New York was applying its anti mask law to the Ku Klux Klan. And the case went through the district court, it went to appeal, and I was looking through all the appellate briefs and I saw an amicus brief from the National Action Network, so Al Sharpton's group. And I started reading it and it was the National Action Network supporting the Ku Klux Klan's right to wear masks at these public rallies. And the. It's a very persuasive brief and it basically said, you know, if, if their First Amendment rights are threatened, our First Amendment rights can be threatened as well.
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B
Yeah, I can understand anti masking laws that impose some sort of criminal enhancement on people engaged in criminal conduct, like some sort of sentencing enhancement. You committed this crime and you did it while wearing a mask, the purpose of which was to conceal your identity in making you brought to justice harder. But I don't see how the mode of anonymous speech, whether it's you're standing on the street corner with a mask on because you want to be anonymous and you don't want people to associate your person with your argument, how that is all that different from speaking anonymously in a newspaper or on social media or through membership in a disliked or disfavored group like the NAACP in the South. It just doesn't seem on first principles to comport. Especially when if you think of the purpose of the Bill of Rights to be securing individual rights and freedom. And you see how forcing individuals and groups, disfavored individuals and groups who are dissenting have often been targeted by those in power. You saw the Hong Kong protests, for example, where a lot of the protesters wore masks because of the facial recognition tools that were available to the government. We're seeing that now where members of the Department of Homeland Security or ICE officers are holding up cameras to people's face, the allegation being that they're putting their faces in the database. I mean, that chills speech. So I just have never quite understood the argument, but I do understand the argument that it makes it much easier to commit a crime if you can't be easily identified in the commission of that crime.
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A
Yeah. And I mean, one of the things that the lower courts have looked at in these various cases is what are the exceptions to these laws? So if there is really a legitimate safety interest, why are you only applying it to political rallies when there could be crimes that are committed outside of the rally context? So, yeah, I mean, I, I think that ultimately it gets to a similar question though, which is, can you communicate whether it is at a rally or behind a computer or a typewriter with a pen, and are you forced to sign your real name or associate your real name with that activity or that
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B
speech because you can commit crimes digitally or in person as well? I mean, there's no distinction there. And that's one of the reasons that people. One of the reasons people often put forward for eliminating Section 230, for example, or requiring age verification or identity verification online, is that we need to be able to find out who these people are who commit certain crimes. So were people speaking anonymously to the Same degree? Were pseudonyms? 55% of all publications included anonymous authors. Did that trend continue after the revolutionary period?
- [30:29]
A
So I'm not aware of any studies of sort of the from the 1800s or 1900s that really looked at that issue. So I can't say definitively whether there was a decline. I would say that in terms of just anecdotally, it wasn't as prevalent as it was before. And really during the revolution.
- [30:52]
B
Yeah, because when I think about anonymous speech in American history, my mind immediately goes to the revolutionary period. Common sense, the Federalists, the anti Federalist papers, John Peter Zanger. And then you kind of skip over everything until you get to naacpv, Alabama and the client masking laws, and then our current moment where many speakers, if you spend any time on X, for example, are anonymous.
- [31:16]
A
Yeah, and I would say legally, the real turning point came in the 1990s. So that's when anonymity, I think, really had a renaissance. So you had some of these cases that primarily involved distribution of pamphlets or people going door to door to canvas for political causes where the Supreme Court said there is a right to speak anonymously, they extended that association right to speech. But it was really in the late 1990s that this really got challenged and tested in the context of online anonymity. And to what extent would courts apply these foundational rights to the ability to speak anonymously online?
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B
And we haven't resolved that question really yet, have we?
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A
We haven't. So the real test case for it really, really came from a site that I think is still online. I haven't checked, but Yahoo. Finance. So this was in the mid to late 90s. This basically had a bulletin board for every publicly traded company. And you think, okay, how quaint, a bulletin board where people can post, but it allowed pseudonymous posts on the bulletin board. And you got a lot of posts for companies from what was pretty transparently their employees who were not happy with the management. And they would just post whatever they wanted. And you think, okay, well, let them post what they want.
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B
But it's like a glass door.
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A
Yeah, yeah. And it was a really early version of Glassdoor. But the problem was that these executives had never experienced anything like this before because their only experience with criticism came in the business press, which was pretty limited. And they knew which editor to call to complain to. But now suddenly, they had their own employees having the nerve to go online and write negative things about their decision making. And this infuriated them, to put it mildly. And so they figured, well, what we want to do is figure out who these people are, because they just knew there was someone in the company, but they didn't know who. And they needed to know. So what they did is they started filing a lot of defamation and trade secrets lawsuits. And there were terribly pleaded lawsuits. I mean, they're not. They would not succeed if they actually were fully litigated. But that wasn't really the point of these lawsuits. What they did was they sued John Doe 1 through 20, and each John Doe had a comment associated with them. And then as part of the early discovery, they would send a subpoena to Yahoo to get the IP addresses and any other registration information. If anything, then they would send a second round of subpoenas to get the registration information from the isp. And in a lot of the cases, they were able to tell, you know, this IP address is associated with this employee. They would fire the employee, make it difficult for them to get another job, and then they would drop the lawsuit. And this was a really common practice in the late 1990s because courts were not giving it any scrutiny. And that started to change in the early 2000s when you had groups primarily like Public Citizen, which really stepped in and started representing a lot of these defendants pro bono and even filing amicus briefs, convincing the courts that there's actually First Amendment protection associated with these requests to unmask people. And they really succeeded and they've convinced the courts. And it varies a bit by state, but the courts overall have said a pretty high but not insurmountable standard for unmasking people. So you have to have a really strong case and you have to make other showings before a court will allow subpoenas for identifying information that really relies on these Supreme Court cases, which in turn rely on America's historical foundations of anonymity.
- [35:42]
B
But not all subpoenas are judicial subpoenas, right? In February of this year, this month, the Department of Homeland Security began issuing hundreds of so called administrative subpoenas to major tech companies including Meta, Google, Reddit and so on. And they sought to unmask anonymous users critical of ICE or who have pointed to the locations of ICE officers online. How do we treat those differently? Like, if you have judges holding these discovery subpoenas to really high standards, what happens when you have this sort of administrative subpoena that, if I'm not mistaken, doesn't go before a judge, Right, Jeff?
- [36:24]
A
Yeah, yeah. I mean it. So administrative and criminal subpoenas, there's just fewer cases overall involved on the anonymity front, where we actually have courts testing it. I would say in the criminal context at least we have a few, and I write about a few of them in my book, where courts are more deferential to the government for administrative. I'm not aware of any fully litigated cases in terms of what standards they apply, but it's definitely. The civil standard is more difficult to satisfy.
- [37:08]
B
How can you even have a subpoena that's not reviewed by a judge? I mean, call me a simpleton here, but we have these sort of checks at least on the executive branch from the judicial branch. But here the executive branch is just a check on of itself and it can unmask these speakers unless the speaker proactively decides to take the executive branch to court.
- [37:31]
A
Well, so I'm not familiar with the circumstances of these particular subpoenas, but I think a big factor, and this is something courts have considered quite a bit, is has the target received notice from the provider or ISP or whoever's receiving the subpoena to have the ability to challenge that subpoena in court? So that at least gives them an opportunity, if they have had notice, to be able to make. To make that challenge. Because if you don't have anyone advocating for their First Amendment right to anonymity, then that's not going to be an issue.
- [38:14]
B
What about these laws or bills, I should say, or ideas that are floating around to implement age verification to prevent minors from using things like social media or pornography websites? A lot of civil libertarians have expressed concern about this because of course, in order to identify who a minor is, everyone who uses these platforms needs to submit a form of age verification. This could be an ID or some other sort of biometric data that would seem to require that nobody be able to use the Internet anonymously. But you also have this inter. You have this situation where you have these miners who, at least in the case of pornography, are trying to access content that's obscene as to minors. So how do you prevent them from doing that while also respecting the right of adults to access speech that they're constitutionally entitled to access?
- [39:11]
A
Yeah, I mean, I think last year's Free Speech Coalition opinion makes it much more difficult to challenge these laws, but I think it depends on what.
- [39:21]
B
And that's the case coming out of Texas that required. Yeah, okay.
- [39:25]
A
For. That required it for. For sites that had adult content. But we also have had a number of state laws that require age verification for social media platforms. And I think those. Fortunately, many of those have been preliminarily enjoined. I. One interesting thing.
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B
And is that, Jeff, because social media sites haven't been identified or social media hasn't been identified as a category of speech that's unprotected as it pertains to minors.
- [40:04]
A
Yeah. And I mean, the courts apply some rigorous scrutiny. What I've been surprised about is that anonymity has not really been a major factor in these decisions. And I mean, if they're getting struck down that that's great. But the. Sometimes they mention it, but it's an afterthought. And I'm not entirely sure why that is, because I think that it's a really strong argument to say that if you're requiring people to provide proof of their age, that will inherently compromise their ability to be anonymous. And I know that the moment I say that there's an entire age verification industry that will tell me I'm wrong. And it's possible to have your face scanned or hold up your driver's license like a hostage video or some. Some way to be able to prove who you are and how old you are without having to. Having to compromise your identity.
- [41:07]
B
But I have seen some examples of even these services that say they're not going to compromise your identity, them having been compromised themselves through hacks and whatnot.
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A
Yeah, I mean, data breaches happen, and they happen to companies of all sizes, and they. And no one's planning to be the victim of a data breach, but they.
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B
They also say they don't actually house the data. Like, as soon as it's verified, they get rid of it. But then that begs the question, how do you enforce these laws and ensure compliance? Yeah, it doesn't quite make sense to me, but.
- [41:42]
A
And in my book, I write about how anonymity isn't binary. It's not like it's a switch you turn on and off. There's a spectrum. And so you could say, you know, we've designed our age verification process to reduce the risks of an identity being compromised, and that could very well be true, but you're at least taking a step toward being able to identify that person. And it's really scary that we have these laws that are really around the world, but especially in the United States, that are really threatening the ability to be anonymous online.
- [42:22]
B
Did the Free Speech Coalition v. Paxton case, in your opinion, overturn some of the core precedent from the Reno v. ACLU case from the late 1990s? That was the case challenging the Communications Decency Act. I've done some research into that case, and it seemed that in the oral argument, at least to the extent they discuss age verification, it's more or less about the feasibility of it, as opposed to the constitutional right to speak anonymously. I remember in the factual findings at the district court out of Pennsylvania, there was one finding that if the ACLU wanted to verify every user to its website, given the existing tools and how much they cost to use it, would have encompassed the entirety of the ACLU's budget. I think it was like something in 20, $26. It was like $2 per verification. And much of it happened through credit card processing. And for websites that didn't actually have a commercial transaction taking place, these credit cards aren't going to verify users to access, like a public library website or the ACLU website where there's no commercial transaction taking place. Unless, of course, you're the publisher and you just choose to pay a fee, I guess. But that seemed to be a really big sticking point for the court in assessing the Communications Decency Act.
- [43:55]
A
Yeah, I mean, I try to be optimistic like you and say that this hasn't fully, fully undercut the Reno vs. ACLU precedent. So I'd like to have that optimism. I worry, though, not, I mean, not just about the Free Speech Coalition case and the laws like it, but I worry about what the next step is, the next when we have one of these broader social media age verification lawsuits get to the Supreme Court. I worry about the erosion of the Reno precedent and how that will make it easier for these even more intrusive laws to be upheld.
- [44:42]
B
Well, in Wisconsin they were considering a VPN ban, a virtual private network band.
- [44:46]
A
Yeah.
- [44:47]
B
And you've seen some of that also floated or even enacted in foreign countries. I remember there was, I think a law or bill or a proposal in Australia might have gone into effect, I don't recall, but they wanted to ban VPN usage because if you have a vpn, you could theoretically access from within Australia content that is banned in Australia by having a network that signals from a different country where it's not banned.
- [45:16]
A
Yeah, I mean, I think that I would hope that a VPN ban in the United States would get struck down. I also could very well be wrong on that. But that was very concerning and I'm glad to hear that they've pulled that from the proposal.
- [45:32]
B
I mean, what are some of the other things that courts are considering with, with regard to balancing the, the risks of anonymity with the benefits, the speech benefits, the association benefits of anonymity? It's crime, it's minors being able to access content that they otherwise couldn't. Are those the main things that lawmakers and courts are looking at?
- [45:55]
A
They are. So I mean, I think that we haven't had many recent, good, pure sort of First Amendment anonymity cases. We've had First Amendment cases that mention the right to be anonymous and talk about it. But I would like to see courts more directly and more frequently apply this pretty strong right to be anonymous. And I think that we have so many of these cases, particularly when they're dealing with age verification, that really fundamentally threaten this right that the Supreme Court for decades has said is so essential. And I'd really like to see more of a head on challenge to that. And I think that, I mean, there are a number of different constitutional flaws in these statutes, so perhaps it's just picking the strongest argument. But I really do think that all of these state laws, if they are upheld, will pretty quickly erode the ability to be anonymous. And you've seen platforms voluntarily doing this. I mean, even before these laws go into effect, you've seen platforms impose greater identity and verification Requirements, which it's their
- [47:19]
B
right to do as private companies.
- [47:20]
A
Absolutely. I mean, Facebook has long had a policy where it requires real names, and it's gotten criticized by a number of different groups for that, but that's Facebook's choice. Instagram does not have a real name policy. And I mean, the same company can have different policies for different platforms, but that's fine. I mean, the First Amendment issue is when the government is requiring these policies and saying you must have these policies that undercut anonymity.
- [47:53]
B
Well, if you were to take out your crystal ball and predict the future, do you think the right to anonymity is going to be eroded by the courts? I mean, if I just look at how well Jonathan Haidt's book the Anxious Generation has sold, for example, spending however many dozens of weeks on the bestsellers list, and the general vibe that exists in this country and in other countries in the Anglosphere surrounding the deleterious effects of social media on young people. If folks think the only real way to solve that perceived problem is to prevent minors from getting on social media, and the only way to prevent minors from getting on social media is to verify their age, and the only way to verify their age is to verify everyone's age. Logic would suggest that we're going to end up at a place where everyone's going to need to submit an ID in order to access the Internet.
- [48:48]
A
So I sadly see that as the future that we're headed towards. And I think that it's going to be hard to go back from that. And the, I mean, I think more broadly, and this goes beyond anonymity, the Internet, for more than 30 years of like really the commercialized Internet has been characterized by this openness and this exceptionalism. And I think that the erosion of anonymity is one of the products of just the broader shutdown of this Internet exceptionalism.
- [49:25]
B
Yeah, well, if you look at some of the early debates surrounding the Internet and the establishment of the Electronic Frontier foundation, for example, they talk about it as a frontier, as this place for freedom, and, and they rejected the idea that it could be colonized by these kind of terrestrial statehoods. So I'm searching for this line from John Perry Barlow, who was one of the co founders of the Electronic Frontier Foundation. And on the day that the communications decency, the Declaration. Yeah, yeah. Was signed, he published this Declaration of the Independence of Cyberspace, in which he declared governments of the industrial world. I come from cyberspace, the new home of the mind. On behalf of the future, I ask you of the past to leave us alone. We are creating a world where anyone, anywhere, may express his or her beliefs, no matter how singular, without fear of being coerced into silence or conformity, he noted. This new digital home was one without borders, one where the United States and other terrestrial governments, as I said, despite their cyber colonial ambitions, had no authority to, quote, ward off the virus of liberty by erecting guard posts at the frontiers of cyberspace. These are utopian words, but if you need to turn over your papers or scan your body or something in order to access this cyberspace, this world, this frontier, it's hard to see how the ideas of John Perry Barlow, the Electronic Frontier foundation, some of those early cyber libertarians, are going to prevail. I hate to end on a pessimistic note, but this has been very helpful as we try and sort out some of the debates surrounding anonymous speech. I hope it's helpful to our listeners. Again, folks, this is Jeff Kossuff and he is the author of the book the United States of How the First Amendment Shaped Online Speech. Jeff, thanks again for coming on the show.
- [51:25]
A
Thanks so much.
- [51:26]
B
And I should note you're going to be back on the show here in April to discuss a book you're co authoring with Jacob Mushin Gama called the Future of Free Speech, Reversing the Global Decline of Democracy's Most Essential Freedom. I'm assuming, Jeff, this is available for pre order right now?
- [51:41]
A
It is very much so, and it's
- [51:43]
B
going to also come out in April.
- [51:45]
A
Yep.
- [51:46]
B
Great. Well, we'll have you back on the show then, and we will put a link to pre order that book in the show notes this conversation, folks, is part of our series marking America's 250th anniversary, where we're looking at how expression helped create the nation and how it's been challenged ever since. I am Nico Perino and this podcast is recorded and edited by a rotating roster of my FIRE colleagues, including Bruce Jones, Ronald Baez, Jackson Fleagle, and Scott Rogers. This podcast is produced by Emily Beaman. To learn more about so to Speak, you can subscribe to our YouTube channel or substack page, both of which feature video versions of this conversation. You can also follow us on X by searching for the handle Free Speech Talk. We take feedback as well. You can send that to sotospeakatthefire.org. again, that is sotospeakatthefire.org and we love reviews, especially if they are positive, which you can submit on Apple Podcasts or Spotify. They help us attract new listeners to the show. And until next time, I thank you again for listening.