Historically, the scope of constitutional protections for fundamental rights has evolved to keep pace with new social norms and new technology. Internet speech is on the rise. The First Amendment protects an individual’s right to speak anonymously, but to what extent does it protect a right to anonymous online speech? This question is difficult because the government must balance the fundamental nature of speech rights with the potential dangers associated with anonymous online speech, including defamation, invasion of privacy, and intentional infliction of emotional distress. While lower courts have held that there is a right to anonymous online speech, they have not yet adopted a common standard. Meanwhile, to simplify the confusion and protect the rights of those who are injured by anonymous online speech, state legislatures are seeking to restrict some or all anonymous online-speech rights.
This Note explores the history of speech regulation, with a special focus on the history of anonymous online speech, and the justifications for protecting speech rights. It then discusses the judicial standards under which courts require disclosure of anonymous speakers and the current legislative proposals to restrict speech rights. Next, this Note suggests that legislatures should not restrict speech rights, and should instead expand the remedies available to those injured by harmful speech. This Note also suggests that courts should adopt a summary judgment standard that requires plaintiffs to provide evidence demonstrating that the anonymous speaker has committed a tort before requiring the speaker to disclose his or her identity.