The Trump Administration Attempts to Erode Online Anonymity
Anonymous speech has been central to the First Amendment since the founding — so what happens to that legacy when the government can unmask its online critics?
By Anonymous
Unlike many other countries, America has allowed people to speak anonymously online.
The Trump administration is attempting to erode these protections, according to recent news reports. Fortunately, the attempts are facing resistance, but the news demonstrates the precariousness of the protections that Americans have enjoyed online for decades.
Bloomberg reported last week that federal prosecutors in Washington, DC are “seeking the names, addresses, and banking information of Reddit and X users, ratcheting up efforts to identify social media critics of government deportation efforts.”
Bloomberg states that the subpoenas are “asking for personal information on at least two anonymous posters behind accounts that have chided immigration enforcement efforts, according to records shared by attorneys for the users.” Lawyers representing the posters have challenged the subpoenas, and a judge is considering whether to quash them.
For more than a quarter century, state and federal courts have held that the First Amendment protects the ability to speak anonymously on the internet. The cases developed primarily from defamation suits filed by companies against anonymous online critics. Because these critics often were employees, the companies sought to use the discovery process to unmask them. Courts developed procedural and substantive protections, requiring plaintiffs to have particularly strong claims before using the civil discovery process to identify the online posters.
“The trial court must consider and decide those applications by striking a balance between the well-established First Amendment right to speak anonymously, and the right of the plaintiff to protect its proprietary interests and reputation through the assertion of recognizable claims based on the actionable conduct of the anonymous, fictitiously-named defendants,” a New Jersey appellate court wrote in 2001, setting the stage for federal and state courts around the country to develop similar protections.
These protections were grounded in Supreme Court precedent that recognizes the value of anonymous speech in American life. “Anonymous pamphlets, leaflets, brochures, and even books have played an important role in the progress of mankind,” the U.S. Supreme Court wrote in a 1960 opinion striking down a Los Angeles ordinance requiring handbills to contain the names of their authors. “Persecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all.”
In a 1995 concurring opinion, Justice Clarence Thomas conducted a detailed review of the history of anonymous speech and writing in the United States to conclude that the First Amendment was drafted with the understanding that it protected anonymity and pseudonymity. “After reviewing the weight of the historical evidence, it seems that the Framers understood the First Amendment to protect an author’s right to express his thoughts on political candidates or issues in an anonymous fashion,” Thomas wrote.
Despite this longstanding precedent, the Reddit and X subpoenas arise in a context that will be more challenging for the posters. Courts generally are more deferential to prosecutors seeking grand jury subpoenas than they are to plaintiffs’ lawyers in civil discovery, so it will be an uphill battle.
For instance, in 2012, a federal judge in the District of Columbia refused to quash a grand jury subpoena seeking identifying information for a person who pseudonymously tweeted: “I want to fuck Michelle Bachman in the ass with a Vietnam era machete.” The poster argued that the tweet was “ludicrous” and not a threat, and therefore, the government did not have a compelling need for the identifying information.
But Judge Royce Lamberth rejected that argument. “Here, an individual has made a statement that threatens an established candidate for the presidential nomination of one of our two major political parties, and the government has a strong public interest in investigating that threat, however outlandish,” Lamberth wrote.
Grand jury subpoenas for identifying information typically don’t result in written opinions, so Lamberth’s ruling is an indication that courts are reluctant to second-guess such government requests.
Still, as Joshua Koltun, one of the posters’ attorneys, told Bloomberg, his client simply made a sarcastic comment. “The post does not contain a trace or an inkling that any violence was intended,” Koltun said.
Koltun explained the harms that such subpoenas have on online speech: “It’s a very chilling thing to get a subpoena to find out your identity, and to run the risk that some ICE agent is going to be knocking on your door,” he told Bloomberg.