Protecting Publius: Online anonymity is critical for protecting freedom to dissent

The bipartisan loathing of Section 230, the liability shield that protects online platforms from being legally responsible for what their users post, has some policymakers contemplating an end to user anonymity on social media platforms. This is an effort to avoid the harmful consequences of repealing or curtailing Section 230, while still addressing content moderation criticisms. That’s a noble goal, but protecting anonymous speech is critical to the health of our republic.

Anonymous posting online faces an image problem in the wake of “The Great Deplatforming” surrounding the storming of the U.S. Capitol. As it becomes clearer to many that revoking or reducing Section 230’s protections for online platforms will lead to a degraded user experience online, barriers to entry for potential competitors to the tech giants, and more, not less, content being taken down online. Policymakers are looking for an alternative solution.

Last month Sen. Ron Johnson, R–Wis., tweeted in reference to the Section 230 debate, “One solution may be to end user anonymity on social media platforms.” Sen. John Kennedy, R-La., has announced plans to introduce legislation that bans anonymity online.

The importance of anonymity

This option does make it easier to find and sue the third-party speaker himself, instead of altering the liability protections of the platforms. But banning anonymous speech on social media platforms and elsewhere on the internet would be a big mistake.

The United States has a long and important tradition of anonymous speech. Founding Fathers Alexander Hamilton, John Jay and James Madison advocated for the ratifying of the U.S. Constitution in The Federalist Papers. They did not sign Federalist No. 10 or Federalist No. 51 with their real names but with “Publius.”

Since then, the Supreme Court has repeatedly ruled that anonymous speech is protected by the First Amendment. In today’s cancel culture, this protection of namelessness or using a pseudonym against the tyranny of the majority is as important as ever. Political dissidents and those of minority sexual, ethnic or cultural groups often benefit from anonymity online. Now, as always, it is the most unpopular and controversial speech that needs protection.

The dangers of the government curtailing anonymous speech are self-evident, but private platforms themselves can choose to require authentication from their users. Those platforms are private property, and the terms of service are a matter of preference for their owners and also for their customers. In fact, Facebook’s official policy states that the “name on your profile should be the name that your friends call you in everyday life. This name should also appear on an ID or document from our ID list,” which includes various forms of government identifications. Facebook goes on to caution, “Pretending to be anything or anyone isn't allowed.”

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Facebook’s policy is not without its shortcomings. There are controversies about groups being unfairly targeted for suspected use of fake names, such as Native Americans or those with cultural naming conventions than run afoul of Facebook’s policies. The verification policy has also troubled those in the transgender community who have adopted pseudonyms. Facebook has made attempts to mitigate these harms, to the varying satisfaction of their critics.

Successful or not, these private, experimental efforts have no implications for political liberty. There is a crucial difference between private solutions and government dictates. Private policies are voluntary for users in that they can take their online selves elsewhere. A government prohibition on anonymity will offer no such exit.

Anonymity is vital for preservation of political liberty

Political anonymity and commercial anonymity are not the same thing, and the distinction requires better appreciation. Over the coming tumultuous period of content moderation, policymakers should allow the private-sphere experimentation necessary to cope with today’s lack of online authentication and proceed with minimal interference.

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In the meantime, government should not strip us of the possibility of anonymity online. The benefits of anonymous communication are vital to the preservation of political liberty here and across the globe. The outlawing of anonymous communications is a cure worse than the disease.

Jessica Melugin is director of the Center of Technology and Innovation at the Competitive Enterprise Institute. Clyde Wayne Crews is vice president for policy and a senior fellow at The Competitive Enterprise Institute, a free-market think tank in Washington, D.C.

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This article originally appeared on USA TODAY: The importance of protecting anonymous speech