The news that federal prosecutors in Los Angeles have asked a grand jury to investigate possible violations of federal wire fraud and cyberfraud laws in the case has sparked widespread debate about the appropriate balance between anonymous speech and potentially criminal activity.

At a press conference last month, Missouri prosecutor Jack Banas said that his office was unable to prove that the false MySpace account was set up with the intent to harm Megan Meier, and as a result, there were no charges that could be filed against the alleged perpetrators.

A Long History of Anonymous Speech

Kurt Opsahl, senior staff attorney for the EFF (Electronic Frontier Foundation), said that there is a long history of anonymous speech in the United States, stretching all the way back to the Federalist Papers in 1787. Alexander Hamilton, James Madison and John Jay wrote the Federalist Papers under the pseudonym "Publius" to advocate ratification of the United States Constitution, which was in danger of being rejected by New York state.

"If a prosecutor can maintain a case against a citizen who is merely using a pseudonym online, without more, it can have a chilling effect on free speech," Opsahl argued. "People can and should be responsible for their online actions, but one should address the actions, not the pseudonym."

Over the years, the Supreme Court has strongly supported the concept of anonymous speech, describing it as "a shield from the tyranny of the majority."

"It thus exemplifies the purpose behind the Bill of Rights," the Supreme Court wrote in 1995, "and of the First Amendment in particular: to protect unpopular individuals from retaliation... at the hand of an intolerant society."

Anonymity Under Attack

With the rise of the Internet, however, new attacks are being levied against anonymous speech. Corporations and even some local governments have been particularly aggressive about pursuing anonymous bloggers who post critical comments about them. Just last month, for instance, the EFF helped quash a subpoena seeking the identity of a New Jersey blogger who criticized his town for filing a malpractice lawsuit against its former attorney.

Opsahl said it is important that the scope of the Los Angeles grand jury's investigation be limited. "Even if a theory of fraud against [MySpace] is viable, it should not impose any burdens on Web sites," he said. "A Web site would remain free to allow pseudonyms."

According to the EFF, a number of recent state and federal decisions have been handed down that protect anonymous speech on the Internet. Most recently, the Arizona court of appeals protected the identity of an employee who forwarded a copy of an e-mail he accidentally received that his company's CEO had originally sent to the CEO's mistress. In reaching its decision, the court applied a balancing test between the company's alleged need for the information and the individual's right to anonymity.