The problem of people making abusive comments on newspaper websites is not restricted to Fresno. They have this problem in Las Vegas, too. But there federal prosecutors demanded the identities of people who wrote the abusive comments because they “might be construed as threatening to jurors or prosecutors.”

The ACLU disagrees with the request and thinks that disallowing anonymity would have a “chilling effect”:

“The right to speak anonymously about politics is older than the Constitution,” [staff attorney Margaret McLetchie] said, alluding to the Federalist and anti-Federalist papers, which were published under pseudonyms.

Right. Has anybody at the ACLU actually read the Federalist and the anti-Federalist papers? Do they read the comments that people leave on newspaper websites? Have they bothered to note the enormous difference in quality, both of thought and writing, in those two sources? Comparing the lunacy spewed in the comment sections on newspaper websites to the Federalist and the anti-Federalist papers is either the same kind of irresponsible enabling that people are alleging commentators like Bill O’Reilly committed before the murder of Dr. George Tiller, or a profound insult to the authors of those historical documents.

The authors of the Federalist and anti-Federalist papers did not use anonymity to lob irrationality, insults, and abuse at people. They wrote closely reasoned arguments. Theirs was precisely the kind of speech that the First Amendment was intended to protect. What is the social value in allowing people to hide behind a mask of anonymity, then go on newspaper websites—or any other websites, for that matter—and hurl unreasoned abuse at identified or identifiable individuals?

To be clear, I agree with the California Court of Appeal, Sixth Appellate District, which held last year in Krinsky v. Doe that an anonymity-piercing subpoena (a court order requiring a website to reveal the identity of an anonymous commenter) should overcome a motion to quash only where the plaintiff can show that the anonymous statement is actually libelous. In other words, where anonymity is allowed by a website, court process should not be allowed to overcome that policy unless there is a viable claim at stake.

Quoting the United States Supreme Court, the Krinsky court observed that “the fact that society may find speech offensive is not a sufficient reason for suppressing it. Indeed, if it is the speaker’s opinion that gives offense, that consequence is a reason for according it constitutional protection.” Quoting another United States Supreme Court case, the Krinsky court further observed:

The decision in favor of anonymity may be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one’s privacy as possible. Whatever the motivation may be, at least in the field of literary endeavor, the interest in having anonymous works enter the marketplace of ideas unquestionably outweighs any public interest in requiring disclosure as a condition of entry. Accordingly, an author’s decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment.

While that rationale looks good on paper, I am skeptical of that “[w]hatever the motivation” part, especially since the court is talking about “literary endeavor” and “the marketplace of ideas.” But the law in the United States, as it currently stands, is that the First Amendment protects the right of people to go online, refuse to identify themselves, and spew insults, abuse, and irrationality at others, many of whom are openly identified or identifiable. But it only protects them from restrictive government acts, like subpoenas.

So I see no reason why newspaper websites, or newspapers themselves, should automatically favor an anonymity policy in the first place. A better policy would be to make a real-world identity the usual requirement, but then allow anonymous publication only after editorial review. To put it another way, the First Amendment protects free speech, which includes anonymous speech, but does not require newspapers to allow anonymous commenters. Rather, if newspapers and other online publishers believe they have some duty or responsibility to foster free and open debate (and, to add another layer of complexity to my view, I am not convinced they do have such a duty or responsibility), then they should seriously consider the effects of allowing anonymous publication.

Summing up, the First Amendment is good and should protect free speech, even when it’s published anonymously, even when it’s irrational and insulting, and sometimes even when it’s abusive, depending on the circumstances (i.e., when it’s not defamatory). But not because anonymous publication somehow always equates to the Federalist papers or the anti-Federalist papers. That’s just inane. And newspapers, especially ones where there is vigorous community debate going on in the comment sections, as with The Fresno Bee, should carefully monitor the quality of the comments. An anonymous commenter who is opinionated and articulate but not abusive or insulting should be tolerated, but anonymity in itself should not be treated like some quasi-First Amendment right that requires newspapers, absent any other state action, to facilitate the publication of irrationality, insults, and abuse.

And, also, to be fair, I haven’t seen anybody arguing that newspapers are required by the First Amendment to publish anonymous insults and abuse. My beef is really with the argument, apparently advanced by the ACLU, that anonymity in publishing is an automatic good, to be protected in itself, without regard to the content of the anonymous speech.