Fordham Intellectual Property, Media & Entertainment Law Journal
Margot E. Kaminski, Real Masks and Real Name Policies: Applying Anti-Mask Case Law to Anonymous Online Speech, 23 Fordham Intell. Prop. Media & Ent. L.J. 815 (2013), available at https://scholar.law.colorado.edu/faculty-articles/286.
The First Amendment protects anonymous speech, but the scope of that protection has been the subject of much debate. This Article adds to the discussion of anonymous speech by examining anti-mask statutes and cases as an analogue for the regulation of anonymous speech online. Anti-mask case law answers a number of questions left open by the Supreme Court. It shows that courts have used the First Amendment to protect anonymity beyond core political speech, when mask-wearing is expressive conduct or shows a nexus with free expression. This Article explores what the anti-mask cases teach us about anonymity online, including proposed real-name policies. It closes by returning to the real world of real masks, addressing the significance of physical anonymity in an age of remote biometric identification and drone use.
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