Twitter, Anonymity, and the First Amendment

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Does the First Amendment protect your right to tweet anonymously or “pseudonymously” (as the case is when one uses a twitter handle, but not their real name)? Even when you criticize the President?

The Supreme Court has long recognized that anonymity is a core part of protecting free speech. As a result, the government can only order Twitter–or a similar company–to reveal someone’s identity if there is evidence of a criminal or civil offense. And even then the government must be able to prove that doing so is the least restrictive means of getting the information, that they do not have the intent to suppress free speech, and the investigatory interest outweighs the First Amendment interest involved.

Recently, the Trump Administration tried to force Twitter to provide identifying information about a pseudonymous account critical of the Trump administration. Twitter refused, and brought suit against the government, asserting both their own First Amendment rights and the First Amendment rights of the user(s) in question. The government withdrew its request thus ending the controversy–for now.

Alternative Facts, Alternative Twitter Accounts

After Donald Trump’s inauguration the US Park Services sent out a tweet that showed a picture comparing the crowd at his inauguration to that of Barack Obama’s first inauguration. Needless to say, Trump was not pleased. Not only did he send out his gaffe-prone press secretary Sean Spicer to bark some easily debunkable claims, the US Park Service had to delete the tweet and their twitter account was temporarily shut down. On the tail of this came a new media blackout imposed on a number of government agencies, including the Environmental Protection Agency.

Then suddenly something happened.

The Badlands Park Service began tweeting facts about climate change. In normal times, a national park using twitter to disperse scientific information would hardly seem like an incendiary act. But given the administration’s attempt to gag federal agencies from talking about the subject and its hamfisted censoring of the US Park Service’s tweets, word spread like wildfire that an official park service account had gone rogue.

The rogue twitter account was short lived. It was announced that a former employee was behind the tweets and they were deleted.

But a new form of resistance grew.

An “Alternative National Parks Service” account was created and began tweeting out facts about climate change. Soon “alternative” accounts popped up for a number of other agencies, purporting to be either current or former employees. In one case, a twitter account purported to be a “rogue POTUS staffer.”

Whether these accounts really are current or former public employees is unknown. What is clear is that the speech they are engaged in, which is critical of the policies of the current administration, is political speech, speech which receives the highest protections under the First Amendment. While public employees have some First Amendment protections, given the current administration’s deep intolerance for dissent, it is easy to see why a public employee would want to remain anonymous. This is illustrative as to why protections of anonymity have been deemed so essential for preserving the freedoms embodied by the First Amendment.

DHS Sets it Sights on @ALT_uscis

@ALT_uscis purports to be run by both former and current employees of the Citizenship and Immigration Services. The Department of Homeland Security sent Twitter a summons both asking they disclose the identity of the account’s owner and not mention the summons. Specifically, DHS requested the name, login information, phone number, mailing address and IP address of the account user.

Twitter refused to comply all around, publicly suing DHS and asking that a federal court find the request to be “unlawful and unenforceable.” While one is usually not able to sue on someone else’s behalf, US constitutional jurisprudence allows under certain circumstances businesses to assert the Constitutional rights of their customers. As a result, Twitter was able to sue DHS for not only violating their First Amendment rights, but the First Amendment rights of the account owner(s).

Instead of fighting the lawsuit, DHS dropped its request rendering it moot. While there have been in the past successful attempts by the government to reveal twitter users’ identities, the request concerning @ALT_uscis is an alarming development. As far as anyone is aware, the twitter account @ALT_uscis is not implicated in any criminal activity and is guilty only of dissident tweeting. For a government to seek the identity of an online critic is a dramatic escalation in the war on dissent. And while anonymous speech may at times have its drawbacks, it remains an important tool for allowing individuals to dissent who may otherwise be targeted to speak freely. As such, it is vital to our democracy that we defend it.