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New Law Prohibiting Annoying Anonymous Speech Online:

[HUGE error in this post, see here, has been corrected; my apologies.]

The newly enacted federal statute that bans annoying anonymous online speech is now part of the basis for a lawsuit against a Web site operator. Anthony DiMeo, III, a Philadelphia businessman, actor, and heir is suing Tucker Max, a Web site operator, blogger, and bulletin board proprietor over some anonymous posts on Max's bulletin board. The first count of the Complaint alleges libel, but the second count alleges a violation of the just-enacted statute that outlaws anonymous online speech that's intended to annoy.

As I at first quite missed, but as Orin and commenter Huh? on this post graciously pointed out, this second count is basically frivolous -- the statute is a criminal statute, which doesn't give rise to a civil cause of action by private litigants. And perhaps federal prosecutors would have been solicitious enough of free speech (or uninterested enough in online insults) that they would never bring such a protection.

Nonetheless, on its face, the new federal statute would indeed cover such anonymous insults. The statute applies not just to constitutionally unprotected false statements of fact (as does libel law), but to any statements, whether fact or opinion, false or true, that are made "without disclosing [the speaker's] identity and with intent to annoy, abuse, threaten, or harass any person ... who receives the communications." At least some of the allegedly libelous statements that DiMeo points to indeed seem to be statements of opinion rather than false statements of fact, so the annoying anonymous communication statute potentially provides a remedy beyond what libel law could provide.

I've argued before why this law is constitutionally problematic. I hope that eventually the courts will strike down parts of the law as unconstitutional, or interpret the statute very narrowly to avoid constitutional problems. But for now the law does on its face ban speech that ought to remain protected.

Incidentally, I think Tucker Max, as the operator of the site rather than the poster, should be immune under 47 U.S.C. § 230 from libel liability.

Thanks to My Election Analysis for the pointer.

Enoch:
There's really little or no point to the internet at all if you can't anonymously annoy people on it. =D
3.20.2006 7:27pm
Wintermute (www):
We told 'em so, didn't we, Gino? One of Murphy's Laws:

Anything that can go wrong will go wrong.
— attributed to Major John Paul Stapp
3.20.2006 9:26pm
Huh?:
Under what theory can DiMeo bring a civil action for violation of 47 USC 223(a)(1)(C)?

Section 223 creates criminal liability: "...shall be fined under title 18, United States Code, or imprisoned not more than two years, or both."

Is there some other provision that creates a private right of action for violations of section 223?
3.20.2006 9:39pm
Paco (mail) (www):
Prof. Volokh,

Thanks for the link. It is true that Mr. Max is probably immune under 47 U.S.C. sec. 230, but that Max's status as a ISP provider is something that might not be proveable until the summary judgment stage. As I noted, at that point most of the costs of litigation have been incurred. That's why I really think a federal anti-SLAPP statute might be warranted.
3.20.2006 10:30pm
arbitraryaardvark (mail) (www):
Probably the main outcome will be more publicity for Tucker Max. He's very funny, very dirty, and a good example of the extremes of cynicism produced by the law school experience. He has a couple books out, I'm not sure of the status of the movie deal.
3.24.2006 7:37pm