NJ Bill Would Prohibit Anonymous Posts on Forums

An anonymous reader writes "The New Jersey legislature is considering a bill that would require operators of public forums to collect users' legal names and addresses, and effectively disallow anonymous speech on online forums. This raises some serious issues, such as to what extent local and state governments can go in enacting and enforcing Internet legislation."

What would the Founders think? You have to ask?

[TCQuad]

I don't think they'd be happy. [wikipedia.org]

Dead on Arrival, I'd say.

[Quadraginta]

This is silly. The New Jersey Supreme Court has already decided [usatoday.com] that citizens of New Jersey enjoy a strong First Amendment right to anonymity in their online postings.

I doubt this bill even gets out of committee, let alone gets passed by the NJ Assembly so that it can be immediately struck down by a NJ judge. As for why, then, a hopeless, pointless bill was introduced by Assemblyman Biondi -- mmmm, maybe he's got an election coming up? Needs to do a little grandstanding?

Unconstitutional in 1960

[orthogonal]

MR. JUSTICE Hugo Black, writing for the Supreme Court of the United States in Talley v. California, 362 U.S. 60 (1960), declaring unconstitutional a California ordinance requiring that handbills and pamphlets be signed:

Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind. 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. The obnoxious press licensing law of England, which was also enforced on the Colonies was due in part to the knowledge that exposure of the names of printers, writers and distributors would lessen the circulation of literature critical of the government. The old seditious libel cases in England show the lengths to which government had to go to find out who was responsible for books that were obnoxious [362 U.S. 60, 65] to the rulers. John Lilburne was whipped, pilloried and fined for refusing to answer questions designed to get evidence to convict him or someone else for the secret distribution of books in England. Two Puritan Ministers, John Penry and John Udal, were sentenced to death on charges that they were responsible for writing, printing or publishing books. 6 Before the Revolutionary War colonial patriots frequently had to conceal their authorship or distribution of literature that easily could have brought down on them prosecutions by English-controlled courts. Along about that time the Letters of Junius were written and the identity of their author is unknown to this day. Even the Federalist Papers, written in favor of the adoption of our Constitution, were published under fictitious names. It is plain that anonymity has sometimes been assumed for the most constructive purposes.

  We have recently had occasion to hold in two cases that there are times and circumstances when States may not compel members of groups engaged in the dissemination of ideas to be publicly identified. Bates v. Little Rock, 361 U.S. 516 ; N. A. A. C. P. v. Alabama, 357 U.S. 449, 462 . The reason for those holdings was that identification and fear of reprisal might deter perfectly peaceful discussions of public matters of importance. This broad Los Angeles ordinance is subject to the same infirmity. We hold that it, like the Griffin, Georgia, ordinance, is void on its face. [362 U.S. 60, 66]

Of course, the Court's membership isn't the same as it was in 1960. The President can appoint who he wants to the Supreme Court. So, who'd you vote for, for president, in 2004?

jurisdiction

[Quadraginta]

It's not unenforceable, it's just unconstitutional, and therefore will not happen.

You may be thinking that New Jersey has no jurisdiction over people who live in other states. Not true. New Jersey asserts jurisdiction over everyone who lives in New Jersey and also everyone who does business in New Jersey, or who materially affects a citizen of New Jersey or the general interests of the citizens of New Jersey.

Hence, if you, Joe Citizen of any U.S. state other than NJ, or even a citizen of another country, do something over the 'net that affects someone in NJ, and is illegal under NJ law, then a NJ court will have no problem issuing a warrant for your arrest. The governor of NJ (or rather one of his underlings in law enforcement) would then issue a request for extradition to your state or country. If that request is granted, then your home state or country arrests you as a courtesy to NJ and (if necessary by force) sends you to NJ to stand trial.

How often is extradition granted? Depends. Between the states of the United States, or between countries of the EU, almost always. For credible accusations of traditional crimes of violence, like murder, rape, arson, or robbery, then again almost always. For nonviolent crimes, and crimes where public policy differs widely, like fraud, child custody violations, or Internet crime such as this one -- all bets are off.

So in this case, you're almost certainly right -- if New Jersey criminalized anonymous posting, I doubt very much if most states in the Union, let alone most Western countries, would honor an extradition request. But as a general rule, you do not escape a state's jurisdiction merely because you don't live there.

Re:What would the Founders think? You have to ask?

[smooth wombat]

Thanks for the link. It's been a while since I've reviewed the Federalist Papers.

One thing that stands out from the wiki entry is at the end. The part regarding the Bill of Rights. The last two sentences read:

Supporters of the bill of rights argued that a list of rights would and should not be interpreted as exhaustive; i.e., that these rights were examples of important rights that people had, but that people had other rights as well. People in this school of thought were confident that the judiciary would interpret these rights in an expansive fashion.

That got my attention because the current configuration of the court has a near majority of people who view the Bill of Rights, and the Constitution in general, as limiting rights, not expanding rights. I know Scalia in particular thinks that the Constitution is not a living document but says what it says and should never be interpreted otherwise.

Unfortunately it appears that the writers of the Papers were correct in their assessment.

Re:A law isn't a law...

[njchick]

Unfortunately, it can be enforced. From the proposed bill:

The operator of any interactive computer service or an Internet service provider shall establish, maintain and enforce a policy to require any information content provider who posts written messages on a public forum website either to be identified by a legal name and address, or to register a legal name and address with the operator of the interactive computer service or the Internet service provider through which the information content provider gains access to the interactive computer service or Internet, as appropriate.

Basically, if you orerate a forum in New Jersey, your site must have data for your users, whether they are from New Jersey, New York or Papua New Guinea. If you don't have such data, you are in trouble, not your users. If the data is proven to be incorrect, you are also in trouble. Jurisdiction of the users doesn't matter, neigther does it matter whether the users have any legal right to be anonymous.

Re:Yes, you may be a member!

[geoffspear]

Nitpicking perhaps, but can this be interpreted to mean that women, and men aged 45 or greater, who are not currently in the National Guard, do *not* have the right to bear arms?

Not really. The 2nd amendment guarantees the right "of the people" to bear arms, not the right of the militia to bear arms.

Re:Are you a member of "a well-regulated militia"?

[RexRhino]

The militia is any group of able bodied adults.

"Well Regulated" simply means that the militia isn't going around looting, or hanging people without trial, etc.

Sorry New Jersey, can't do it

[deblau]

But don't take my word for it. Here's what Justice Stevens had to say about it:

"Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind." Talley v. California, 362 U.S. at 64. Great works of literature have frequently been produced by authors writing under assumed names. Despite readers' curiosity and the public's interest in identifying the creator of a work of art, an author generally is free to decide whether or not to disclose his or her true identity. 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.
McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 341-342 (1995).

[N.B.: there is a minor exception to the rule against prohibiting anonymous speech: election disclosures. For more information about this, see Buckley v. Am. Constitutional Law Found., 525 U.S. 182 (1999) [epic.org] and McConnell v. FEC, 540 U.S. 93 (2003) [cornell.edu].]

Have you ever seen an anonymous letter stapled to a telephone pole, slandering someone? You'd like to be able to sue for defamation, but you can't. That's life, it sucks, deal with it. You can't just tack on the words "on the internet" and change things. Of course, that's what this bill is trying to do -- impose an affirmative duty to watch each and every telephone pole and identify the posters by legal name and address.

Now although it's not the main issue, economics should be addressed. Sure, the cost is spread out over all the website operators and not consolidated in the phone company, but the same cost is being imposed nonetheless. Every website operator will now have to 'hire guards' (databases, coding special HTML pages, access restrictions, etc). This makes hosting a public forum more expensive. You might even call it a 'tax' on free speech.

Both from a rights perspective and an economic perspective, this bill stinks.

Re:Are you a member of "a well-regulated militia"?

[advocate_one]

well then, as a "conscientious objector" you can be a stretcher bearer or corpsman...

Re:Brrrrrrr

[Bazzalisk]

Essentialy it's to stop them from being tried for non-registration in addition to possession of an illegal firearm.

Re:Huh?

[shotfeel]

I think he's saying that since a camel isn't a donkey or an elephant, it will be taken into the tent and eaten. Except for the nose, because it slices too thin for a good sandwich.

I've said it before...

[Malacon]

... and I'll say it again

Fucking Jersey.

Re:Brrrrrrr

[lysse]

Actually, I have to out-pedant you; if you scream it into a microphone connected to a radio station, you're publishing it and it thus becomes libel. It's the public dissemination part that's significant.

"IT IS FAR FROM OVER"

[jebintx]

It is no coincidence that the GOP leader of the New Jersey Assembly introduced this law. It goes right back to the 2002 lawsuit (Donato v. Moldow) against EyeOnEmerson.com in which four Republicans LOST their libel suit against the website over anonymous comments they disliked.

N.J. judge dismisses lawsuit over anonymous Web site criticism [freedomforum.org]

New Jersey Court of Appeals rules for EyeOnEmerson website [eff.org]

"It is far from over," said Jack Darakjy, the attorney representing the plaintiffs [freedomforum.org]. "We will appeal the decision. If we need to, our clients are prepared to take this all the way to the Supreme Court."

Or, if you are politically connected in New Jersey, maybe you just go to your party and get them to take up your crusade.

Re:jurisdiction

[Krach42]

So in this case, you're almost certainly right -- if New Jersey criminalized anonymous posting, I doubt very much if most states in the Union, let alone most Western countries, would honor an extradition request. But as a general rule, you do not escape a state's jurisdiction merely because you don't live there.

The other good thing to note here, is that even if no one grants your NJ extradition charge, if you end up within their jurisdiction, they can arrest you there.

Let's take a small example, you're in say, New Mexico, you maintain a forum, and someone posts something offensive and potentially libelous about a NJ legislator (like say Biondi) and they get all mad, and demand criminal action be taken, because you as the forum maintainer didn't keep records of who posted it, so they want to get at someone, so they're going after you.

All happens as above, and they send the extradition charge to the NM governer, and they say, "Pfff... whatever."

But then a few months down the road, you decide you want to fly to Europe, and you land in Newark and when you attempt to board your plane, they tell you that they have a "very special treat for you, and they'd like to escort you to the first class lounge to redeem your prize!" Yeah, next thing you know, you're in cuffs, and you're screwed.

Basically, even if someone can't extradite you doesn't mean you're even safe; it just means you have to be damn careful about where you travel after that.

Re:2nd Amendment Clarification

[Bob_Robertson]

The term "well regulated militia" has never really been defined anywhere.

Then you have never consulted the Oxford English Dictionary, where the term "well regulated" is defined in exactly the way the U.S. Army uses the term today. A soldier learns to "regulate" his rifle by learning how to operate the rifle, set the sights and shoot accurately.

As for "militia", the law has already been posted in this thread. Unless you're female and not in the national guard, incapable, under 17 or over 45, you're in the militia. That's the law.

Goodness, where to begin with the rest...

"The right of the people to keep and bear...arms shall not be infringed.
A well regulated militia, composed of the body of the people, trained to
arms, is the best and most natural defense of a free country..."
-- James Madison, I Annals of Congress 434, June 8, 1789

"I ask, sir, what is the militia? It is the whole people, except for a
few public officials."
-- George Mason, 3 Elliott, Debates at 425-426

"A militia, when properly formed, Are in fact the people themselves...
and include all men capable of bearing arms."
-- Richard Henry Lee, Senator, First Congress, Additional Letters
from the Federal Farmer (1788) at 169

"What, Sir, is the use of a militia? It is to prevent the
establishment of a standing army, the bane of liberty. ... Whenever
Governments mean to invade the rights and liberties of the people,
they always attempt to destroy the militia, in order to raise an army
upon their ruins."
-- Rep. Elbridge Gerry of Massachusetts, spoken during floor
debate over the Second Amendment, I Annals of Congress at 750,
August 17, 1789

"Before a standing army can rule, the people must be disarmed; as
they are in almost every kingdom of Europe. The supreme power in
America cannot enforce unjust laws by the sword; because the whole
body of the people are armed, and constitute a force superior to
any bands of regular troops that can be, on any pretense, raised in
the United States"
-- Noah Webster, "An Examination into the Leading Principals of
the Federal Constitution.", in Paul Ford, ed., Pamphlets on
the Constitution of the United States, at 56 (New York, 1888).

"...but if circumstances should at any time oblige the government
to form an army of any magnitude, that army can never be formidable
to the liberties of the people, while there is a large body of
citizens, little if at all inferior to them in discipline and use
of arms, who stand ready to defend their rights..."
-- Alexander Hamilton speaking of standing armies in Federalist 29.

"Besides the advantage of being armed, which the Americans possess
over the people of almost every other nation. ... Notwithstanding
the military establishments in the several kingdoms of Europe,
which are carried as far as the public resources will bear, the
governments are afraid to trust the people with arms."
-- James Madison, author of the Bill of Rights, in Federalist
Paper No. 46. at 243-244

"Congress have no power to disarm the militia. Their swords, and
every other terrible implement of the soldier, are the birthright
of an American ... The unlimited power of the sword is not in the
hands of either the federal or state government, but, where I trust
in God it will ever remain, in the hands of the people"
-- Tench Coxe, Pennsylvania Gazette, Feb. 20, 1788

"The right of the people to keep and bear arms has been recognized by
the General Government; but the best security of that right after all
is, the military spirit, that taste for martial exercises, which has
always distinguished the free citizens of these states...Such men form
the best barrier to the liberties of America."
-- Gazette of the United States, October 14, 1789

"As civil rulers, not having their duty to the people duly before them,
may attempt to tyrannize, and as th