Electronic Frontier Foundation Reminds Department of Education: First Amendment Protects Anonymous Speech, and for Good Reason

In a letter sent to the Department of Education’s Office for Civil Rights (OCR) last week, the Electronic Frontier Foundation (EFF) makes powerful arguments against calls for new regulations to govern anonymous online speech.

EFF’s letter serves as an important rejoinder to a demand issued by 72 women’s and civil rights organizations this past October for OCR to require colleges and universities to monitor anonymous speech on social media applications like Yik Yak for possible violations of federal anti-discrimination laws like Title IX. OCR’s decision shortly thereafter to open an investigation into the University of Mary Washington’s response to social media posts sent a chilling signal that the agency is indeed considering such a mandate.

Reminding OCR that anonymous speech is protected by the First Amendment and has been a crucial tool for protecting dissident or minority voices since the nation’s founding, EFF’s letter offers a series of important reasons for preserving students’ rights to speak their minds anonymously in digital forums like Yik Yak.

First and foremost, EFF correctly and carefully points out that a government-imposed ban on anonymous online speech would run afoul of students’ First Amendment rights. In fact, EFF explains at length that a blanket restriction on anonymous speech would be unconstitutional for several reasons. Anonymous speech is protected by the First Amendment, and a ban would interfere with students’ right to speak, assemble, and petition. And not only would such a restriction on anonymous speech unlawfully prevent students from sending and receiving information, it would also almost certainly be void as a prior restraint on speech and suffer from facial overbreadth. So while unlawful harassment and true threats aren’t protected by the First Amendment, EFF wisely cautions that such misconduct must be dealt with on a case-by-case basis, instead of imposing “[c]ategorical and prophylactic rules restraining all anonymous speech.”

What’s more, EFF explains to OCR that barring anonymous speech would hurt students’ abilities to engage in core political speech. Citing recent examples of student activism made possible by access to anonymous online social platforms, EFF argues that broad bans on anonymity would “undermine the efforts of many people who rely on anonymous speech for any number of important purposes, including groups seeking to foster gender and racial equality on campuses across the country.”

Finally, EFF reminds OCR that students and universities can already effectively respond to unlawful expression online by enforcing existing laws outlawing true threats and harassment, improving methods of flagging or filtering unwanted posts, protecting personal information, and answering unwanted speech with more speech. As EFF writes, “these solutions do not require any new rules or guidance from the Department or risk violating students’ First Amendment rights.”

FIRE has cautioned that OCR action requiring colleges to police anonymous speech online would threaten student rights, and we’re very pleased that EFF agrees.