The 1st Amendment and Internet Anonymity

Happy Friday, everybody. Hope you’re having a great week. So this week, let’s talk about something that is all over the place recently, and that is the First Amendment. It is an issue that comes up from time to time in our cases and it is something that I constantly see people have just a basic misunderstanding of how the First Amendment works and what a First Amendment violation really looks like.

So the first thing to remember anytime you’re looking at something and have this gut reaction of, “That’s a violation of my First Amendment rights,” the first thing that you need to determine is, is the person or the entity that’s restricting the speech a government actor? Right? So, is it a police officer? Is it a political body? Is it a school? In some cases, because schools can be considered government actors. Those types of entities are restricted from prohibiting certain speech. Okay?

If the person or the entity doing the restricting is a private entity, such as Twitter or Facebook or Amazon or a store or an employer or even a public space, those types of entities can restrict any speech they want, especially when it is within the confines of their property. So that’s kind of the threshold inquiry that you really have to make when you’re looking at something and trying to determine if something is a violation of a First Amendment right.

The other thing that is a little bit more nuanced and a little bit more difficult to parse out is, there are plenty of exceptions that allow for government actors and government agencies to restrict certain speech, if it is considered criminal in nature, if it is considered incitement in nature, if it presents a clear present danger to a public or a person. So there are a host of different ways that speech and certain things can be limited by government actors if certain criteria are met. So, those types of cases are really, they really have to be analyzed on a case by case, very fact-specific matter.

So if you’re up against that, or if you see something and you’re wondering, “Is this restriction? Is this censoring something that is a First Amendment issue?” feel free to give me a call, shoot me an email. I’m happy to look at it and give you my thoughts or my takes. Like I said, this does come up from time to time.

The other thing that I want to impress upon anybody watching this video, to the extent that you’re not already aware of it, anonymity is not something that really exists on the internet. Okay? So a lot of people feel like when they’re posting something on Twitter, on Gab, on Parlor, on 4chan, or whatever the social media site is, if they’re posting it under a handle that is not their real name, that they’re safe and they can say whatever they want, because nobody really knows it’s them. They get emboldened by this idea that they’re anonymous, but keep in mind that there are a whole host of ways, and usually relatively easy ways, for law enforcement and the government to identify who is posting certain things.

So we’ve seen this influx in people that are posting what can be considered confessions to certain criminal activities online or plans for carrying out criminal activities online. And I can’t tell you the number of people I’ve represented for drug type cases, either possession or a manufacture delivery type case, or even federal drug conspiracy charges that start from private messages on things like Snapchat that people think, “Oh, these get deleted after a time.” That’s not entirely true. So, keep that in mind when you’re posting things online, when you’re posting things to a message board, when you’re sending messages on social media or through your phone, always assume that a government actor or a government entity or law enforcement can and will see that. And you’ll be much better off.

Again, if that’s something that you’re concerned about, or if there’s something out there that you’re worried about what that exposure does to you, feel free to give me a call. We’re happy to look at it, talk to you about it. Attorney client privilege would attach, so everything that you and I discuss would remain between us, but I can break down where your risks might be and what you can do to mitigate those.

So as always, I’m here to help, I’m here to talk, I’m here to answer questions. So shoot me an email, give me a call, and I look forward to talking to anybody that needs me. Otherwise, I hope you have a great weekend and I look forward to seeing you guys all next week.