March 08, 2006

An interesting bill has just been proposed in New Jersey that would force Internet service providers (largely immune from defamation liability due to federal legislation) to make sure posters used identifiable email addresses.

If the bill were to pass, it would have fascinating implications. Here are two:

1) If a town were to require that citizens clearly identify themselves before posting messages on the bulletin board at the town square, would this violate the 1st Amendment? Recall that many revolutionary tracts, including of course the Federalist Papers, were anonymous. Is an ISP like a "town"?

2) That aside, assuming hypothetically that the Supremes would confirm Fourth Circuit court rulings immunizing ISP's from defamation liability, would the New Jersey law be seen as pre-empted?