Attorney Robert Rotstein explains why the First Amendment protects anonymous speech, and why the value of anonymity apps like Yik Yak shouldn’t be dismissed.

The horror stories are all over the Internet. Anonymous-social-media app Yik Yak tore a Connecticut high school apart. (Among the anonymous "gems": "L. M. is affiliated with Al Qaeda." "The cheer team couldn't get uglier." "K. is a slut." "Nobody is taking H. to prom because nobody has a forklift.") A high school in San Clemente, California was placed on lockdown after an anonymous bomb threat was posted on Yik Yak. Two teenagers in Mobile, Alabama were arrested after using the app to make threats about a campus shooting. Even an article in the Boston Globe titled "The Good News About Yik Yak" emphasized how teenagers are rejecting its dark side.

It goes without saying that threats of cyberbullying and violence are reprehensible and need to addressed quickly and effectively. But let's not forget that anonymous speech — and that's what Yik Yak and similar apps like Whisper and Secret encourage — plays an important role in a free society. The United States was founded on it. Thomas Paine, the "Father of the American Revolution," signed his influential pamphlet Common Sense as simply "Written by an Englishman" lest his identity became known and he was hanged for treason. The authors of the Federalist Papers, the key documents used to interpret the Constitution, published under the pseudonym "Publius." The U.S. Supreme Court has held that the right to speak anonymously, on and off the Internet, is guaranteed by the First Amendment to the Constitution, a right that extends to the Internet. 

And, in fact, anonymity apps have brought positives along with the negatives. Not long ago, a post on Secret reported that Google had acquired the poster's five-person company and had hired everyone but her. Later posts revealed that she was the only female at the company and had been there since it was founded. The thread became the talk of Silicon Valley, generating a lively debate about suppressed sexism in the start-up community. The poster's ability to remain anonymous was key to this information coming out. She could stand up to power, speak without embarrassment, and avoid alienating potential employers who might take a dim view of her controversial statements. That's exactly why the First Amendment protects anonymous speech, and that's why the value of anonymity apps like Yik Yak shouldn't be summarily dismissed.

The targets of anonymous speech often resort to the courts to try to unmask the speaker. The plaintiff will sue a fictitious "John Doe" and immediately serve a subpoena seeking to force the Internet service provider to give up the defendant's name. In one typical case, an anonymous poster on a Yahoo! Finance message board took part in a heated debate about the company's managers, including the aggrieved plaintiff. The defendant posted a message saying that a male executive had made a New Year's resolution to perform oral sex on the plaintiff though she had "fat thighs, a fake medical degree, 'queefs' and ha[d] poor feminine hygiene." The plaintiff sued and served a subpoena on Yahoo! seeking the poster's identity. The court quashed the subpoena, concluding that the statement didn't convey libelous facts, but instead was merely crude, satirical hyperbole uttered in the course of a heated online discussion. The outcome in this case was correct, but not inevitable. (As one commentator notes, most of these John Doe lawsuits are about censorship, not money). The point is that anonymous speech can be a good thing, and often there are powerful entities out there that want to stop it.

Even school students are entitled to some first amendment protection. For example, several years ago, a middle schooler was suspended after she used MySpace to post a crude, satirical faux-message from the principal portraying him as a pedophile. Citing the first amendment, a federal court overturned the suspension because the student's conduct occurred off campus and hadn't substantially disrupted school operations. Of course, threats of violence or disruptive speech on school property or during school activities will yield a different result, not to mention possible criminal prosecution. Yik Yak has cooperated with law enforcement officials in such cases (showing that anonymity online is far from absolute).

The tumult surrounding the misuse of anonymous-social media apps is understandable. But let's not forget that these apps are tools that encourage speech, and like many tools, they can be used for both good and ill.

[Image: Vincent Diamante. Licensed under the Creative Commons Attribution-Share Alike 2.0 Generic license.]