Protections for anonymous speech are vital to democratic discourse. Allowing dissenters to shield their identities frees them to express critical, minority views . . . 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.

[Justice Stevens, providing the majority opinion of the U.S. Supreme Court, McIntyre v Ohio Elections Commission.]

In the past few weeks, I have received numerous threats of lawsuits being filed in order to determine my off-line identity.

Why are they so bound and determined to discover my identity? For purposes of silencing criticism and potentially exacting retribution.

Some people don’t like bloggers who use pseudonyms (aliases) or those who blog anonymously (using no name at all). Regardless of what anyone thinks about anonymous or pseudonymous speech, it is protected by the First Amendment.

It has also played an important role in the history of our country. The Founding Fathers used pseudonyms for the publication of their revolutionary arguments, such as in The Federalist Papers. Alexander Hamilton, James Madison and John Jay wrote under the pseudonym, “Publius”.

In McIntyre v. Ohio Elections Commission, U.S. Supreme Court Justice Clarence Thomas offers several other examples of the role anonymous or pseudonymous speech has played in history to support the intent of the First Amendment protections of speech.

More commonly known, Samuel L. Clemens wrote under the pseudonym “Mark Twain”, challenging culture in a way that has gone well beyond his generation.

Recently, cases have been brought against anonymous bloggers and anonymous pamphleteers. In many of the cases, those who are being criticized or exposed go to great lengths to silence or discredit the source of the information. However, when those tactics fail — as those that are trying against this blog — they turn to threats of legal action, or to initiating legal action in an attempt to at least discover the identity of the person so that they may take more direct action — even when they know their case will not stand up in court.

My own experience on the receiving end of these tactics is one of the very reasons why I chose — and continue — to write under a pseudonym. What I write about is not popular with those who have had something of a stranglehold on Carpentersville for the past decade or longer. Being able to stay in power is not something that comes easily. So, if anything were to threaten that, it would likely not be taken lightly. This is the motive that compels me to write under a pseudonym.

So, will the law allow discovery of a blogger’s identity through the mere filing of a lawsuit? The short answer is no.

In the case of public figures — which those who Carpentersville Action Network addresses are — the bar for a defamation suit is high. Recent cases such as Doe v Cahill have set forth that a summary judgment standard, not a good faith standard, be applied which “appropriately balances one person’s right to speak anonymously against another person’s right to protect his reputation.”

In Doe v Cahill, the Court found that the plaintiff, Patrick Cahill, a city councilman of Smyrna, Delaware failed to meet the standards required by the First Amendment to unmask an anonymous critic. Summary judgment is a high standard, particularly in cases of anonymous speech because unmasking an anonymous critic is on par with the court finding in favor of the one seeking the person’s identity.

Just before Christmas, a New Jersey Court quashed an attempt to reveal the identity of an anonymous blogger who was critical of county officials, and whom they say libeled them.

On December 21, 2007, Superior Court Judge Terence Flynn granted EFF’s motion to quash the Township’s September 26th subpoena seeking the identity of datruthsquad and denied a motion by the township to authorize future subpoenas, finding that the subpoena amounted to “an unjust infringement on the blogger’s First Amendment rights” and that the blogger “has a right not to be drawn into the litigation.”

Bloggers do have rights to free and anonymous speech granted by the First Amendment. Of course, that does not mean that a blogger can say anything he/she wants. But, the Courts are looking seriously at the new frontier of the Internet, particularly in the case of political speech.

Protections for anonymous speech are vital to democratic discourse.

Companies that provide Internet access, host blogs, etc are required by federal law to provide notice when a request is made for an individual’s data. Failure to do so could result in a suit being filed back against the ISP or other similar organization that could result in payment of damages, in addition to legal fees. So, it is in the best interest of these companies to notify subscribers or users that their data has been requested, particularly with the decisions that continue to be handed down regarding the rights of those publishing and discussing information on the Internet.

Bloggers do not have free reign, however. They must be responsible in the information that they publish (as this site has worked diligently to do — even removing a posting when additional backing information that was promised was not received) — although there is also protection from prosecution for statements made by others (see Section 230).

Quoting again from the decision of McIntyre v Ohio Elections Commission …

The right to remain anonymous may be abused when it shields fraudulent conduct. But political speech by its nature will sometimes have unpalatable consequences, and, in general, our society accords greater weight to the value of free speech than to the dangers of its misuse.