Last week, Republican Tim Couch of Kentucky introduced a bill in the state legislature that would impose criminal fines on Kentucky-based website operators who fail to collect "a legal name, address, and electronic mail address" before allowing a user to post a comment. The proposed law would also require website operators to "establish reasonable procedures to enable any person to request and obtain disclosure of the legal name, address, and valid electronic email address of [a user] who posts false or defamatory information about the person."
Hmm . . . This looks like a transparent attempt to get around the First Amendment protection for anonymous online speech recognized in a slew of recent and not-so-recent cases, including Doe v. Cahill, Mobilisa v. Doe, Krinsky v. Doe 6, Essent v. Doe, and Greenbaum v. Google. Entirely appropriately, Marc Randazza takes Couch out to the woodshed for failing to appreciate not only the state of the law but also the importance of anonymous speech to our nation's history.
Putting aside the First Amendment issue, Couch's bill suffers from a host of practical difficulties. Ryan Paul at Ars Technica, also fired up by the stupidity of the proposal, writes:
Web site operators have no means with which to validate the identification information they receive from users or guarantee its accuracy. If it were even legally permissible, a state-wide ban on anonymous posting would have little impact because it would not be enforceable against web sites outside of the state of Kentucky. Indeed, such a law would likely compel site operators to move their web sites out of Kentucky.
Oddly, even Couch appears half-hearted about the bill's prospects. The Lexington Herald-Leader interviewed Couch and reported that he "readily acknowledged on Wednesday that his bill raises First Amendment issues regarding free speech, so he won't be pushing it." Huh? Wait, it gets better:
"I think right now (online posting) is pretty much just on its own. It's a machine that's going to go its own way," Couch said. "The state can try to pass some rules, but I don't really think it would do anything."
I think it's fair to say that Kentucky website operators don't need to pack their bags just yet -- with an endorsement like that, this bill isn't going anywhere.