We are constantly treating the Internet as sui generis, as if nothing that happened before it had any relevance. One of the most egregious examples of this is the panic about Internet anonymity. In reality--and unknown to the majority of the officious commentators on this issue--the Supreme Court has evinced a high level of comfort with anonymous speech for lo, these forty years.
In its well-detailed, extensive holdings on anonymity, the Court has pursued two intersecting trains of thought. The first, arising from cases involving NAACP membership lists which various southern states sought to disclose in the 1950's and '60's, has to do with anonymity as a corrolary of the freedom of association. The right to associate with others, these cases hold, demands the right that your association not be known, if disclosure might result in physical or social harm. This analysis is regularly used by the Court to invalidate laws requiring controversial organizations to publish or make available their membership list.
The second line of cases looks at the right of the individual speaker not to reveal his identity, and concludes that anonymity is socially useful. I may have a good idea you will not consider if you know my name. Or I may individually fear retaliation if my identity is revealed. Anonymity is therefore good, because it encourages greater diversity of speech. This analytic approach leads to the conclusion that laws forcing me to affix my name to a leaflet are unconstitutional as compelling speech. My name may be only two words--two nonsense words at that--but a law requiring me to include those two words in my leaflet is as constitutionally repugnant as a law requiring newspapers to carry replies to editorials (Tornillo v. Miami Herald).
The Supreme Court's most recent statement on this issue was McIntyre v. Ohio, an entertaining opinion to read. Mrs. McIntyre was a housewife who was unhappy with her local school board. She printed leaflets criticizing them at election time, which did not include her name and therefore violated an Ohio election statute. She was fined $100, but in the grand American tradition, fought the fine all the way to the Supreme Court.
Anyone maundering about outlawing anonymity in cyberspace should be required to explain the difference between Mrs. McIntyre's leaflet and an email message bearing the same content.
Analogizing the Net to print media clears the mind marvelously. We frequently lash out against particular media, or content, without recognizing the essential similarity to more familiar things. When we allow the thing we are criticizing--whether a computer network or an anonymous message--to become entirely divorced from human beings, it is easy to see the thing attacked as evil in itself, rather than in a particular application. It helps at these moments to stop and ask, "Whom"--what human being-- "are we attacking? And whom are we protecting?" Answering these questions sheds so much light on the issue that it is grossly irresponsible to resolve any legal dispute without answering them first. In the case of anonymity, are we legislating Mrs. McIntyre out of cyberspace while allowing her to go door to door distributing her leaflets? If we are, what possible rationale is there? Let's let Mrs. McIntyre alone, in realspace and cyberspace.