#CommonSense: Blog Postings and Tweets Can Be Protected Anonymous Political Speech, Court Rules

By December 19, 2011

In a victory for free speech, the United States District Court for the District of Maryland has ruled that the portion of a federal anti-stalking statute, 18 U.S.C. § 2261A(2)(A), pertaining to causing emotional distress via an interactive computer service is unconstitutional as applied. The opinion in the case, United States v. Cassidy, can be found here

In this case, the federal district court held that the First Amendment protects anonymous posts online. The opinion, a textbook example of original public meaning jurisprudence, is rife with historical example. Here is a great analogy from the opinion: 

Because this case involves First Amendment issues, terms that were in use by citizens when the Bill of Rights was drafted may help in understanding the legal context of Blogs and Twitter. Suppose that a Colonist erects a bulletin board in the front yard of his home to post announcements that might be of interest to others and other Colonists do the same. A Blog is like a bulletin board, except that it is erected in cyberspace rather than in one’s front yard. If one Colonist wants to see what is on another’s bulletin board, he would need to walk over to his neighbor’s yard and look at what is posted, or hire someone else to do so. Now, one can inspect a neighbor’s Blog by simply turning on a computer. 

This decision is significant because it represents a real sensitivity to the timeless nature of the rights guaranteed by the First Amendment. The court in Cassidy notes that "[e]ven though the Internet is the newest medium for anonymous, uncomfortable expression touching on political or religious matters, online speech is equally protected under the First Amendment as there is ‘no basis for qualifying the level of First Amendment scrutiny that should be applied’ to online speech." (Citation omitted.) Too often, college administrators forget this point. 

FIRE has noted before, in our own blog posts and in timely legal scholarship, that the First Amendment rights of college students and professors are just as strong online as they are in print or voiced aloud. We are thankful that courts such as the district court in Cassidy are thinking the same way!