Congress Passes Blatantly Unconstitutional Law Against Internet Speech

Declan McCullagh revealed today that buried inside some must-pass legislation from last year is a provision from Sen. Arlen Spector, chairman of the Senate Judiciary Committee, that bans all anonymous Internet speech that "annoys."

Annoys? Excuse me? You may not know this, Arlen, but the Federalist Papers were extremely annoying. So were the anti-federalist papers. (You may not have known such existed, but they did.) All of this debate, which is at the heart of our system (and which predates the Bill of Rights, not coincidentally) was conducted anonymously. The Founders rightfully feared legal harassment from the several states for their annoying speech, and kept their names to themselves as they debated the questions publicly. One thing to emerge from all this, of course, was a promise to cofify specific rights of the people, of which Freedom of Speech would come in the First Amendment.

Since then we've had ample precedent and rhetoric upholding the principle that annoying speech, even anonymous annoying speech, is OK. (The legal problem emerges when you get into deliberate falsehoods, into libel or slander, not annoyance.) Among the most recent such defenses is one from Mr. Justice Thomas, in McIntyre vs. Ohio Election Comm., 1995.

Spector knew this piece of garbage would wilt in the light of day. That's why he snuck it through in the dark of night.

Of course, that's why we have courts. To toss this kind of stuff.

Maybe someone should ask Mr. Alito what he thinks of it.