Former South Carolina governor and 2024 Republican presidential candidate Nikki Haley's call to require identity verification for all social media users to stop foreign actors from spreading misinformation has raised old and new questions about free speech.
Haley on Fox News on Tuesday said posts from anonymous users should be viewed as a "national security threat" due to China and Russia creating bots and fake accounts to spread false information. She said the platforms should "show America their algorithm" and that every person on social media should be "verified by their name." The proposal drew immediate criticism from her presidential rivals. On Wednesday, she appeared to walk back her comments, saying on CNBC that Americans should be allowed to post anonymously but that Russians, Chinese, and Iranians should not.
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But the right to engage in anonymous speech has long been protected in the United States, and free speech advocates say the right extends to social media.
"There are reasons we want to promote anonymous speech, whether it's the historical argument that our country was built on the back of some anonymous speakers like the Federalist Papers or Thomas Payne's Common Sense to the need to protect vulnerable individuals today," Ken Goldberg, free speech counsel at the Freedom Forum, told the Washington Examiner. The Freedom Forum is a nonpartisan organization dedicated to promoting the First Amendment.
The courts have ruled that anonymous speech and presence are protected under the First Amendment. "Democracy relies on free speech to function, and the ability to speak anonymously gives all of us the breathing room to weigh in on sensitive topics," Aaron Terr, director of advocacy at the Foundation for Individual Rights and Expression, said in a statement. "Prohibiting anonymous online speech poses a greater threat to participation in our democracy — and thus, national security — than Nikki Haley and other politicians who would join her call may realize."
The Supreme Court has upheld a right to anonymous speech over the years, Goldberg noted. In the case Talley v. California in 1960, the court voided a Los Angeles ordinance forbidding the distribution of anonymous publications. In 1972, it ruled in McIntyre v. Ohio Elections Commission that a state rule prohibiting anonymous campaign literature was unconstitutional.
The high court has not yet weighed in concerning social media, Heritage research associate Jake Denton told the Washington Examiner. "We haven't seen a stress test of this nature before," he said.
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The subject of managing anonymity on social media has come up at the federal level in recent months as lawmakers have considered legislation designed to regulate minors' use of social media. Sens. Brian Schatz (D-HI) and Tom Cotton (R-AR) introduced the Protecting Kids on Social Media Act in April, a bill that would set a minimum age of 13 for users to be allowed to have accounts on social media apps such as Instagram or TikTok, while users between the ages of 13 and 17 would require parental approval. It would require social media companies to verify users' ages with government IDs and would make it difficult for users to create anonymous accounts. The Kids Online Safety Act, a bill introduced by Sens. Marsha Blackburn (R-TN) and Richard Blumenthal (D-CT), previously included provisions encouraging age verification but stripped those away in the latest draft. It would still require the platform to adopt certain privacy standards for teenage users, which could force platforms to identify whether a user is underage via age verification or other methods.
Critics of these bills allege that requiring age verification would require all users to submit personally identifying information and thus strip the internet of anonymity. Proponents dismiss the claims, noting that information would be kept briefly to verify identities and ages before being deleted.