Anonymity and Free Speech

Anonymity has long been an important issue in American politics and jurisprudence. The key tension in American anonymity law is between the potentially chilling effects on speech stemming from compelled disclosure of identity and the desire to hold individuals accountable for harmful speech. But while early cases like Lewis Publishing Co. v. Morgan, 229 U.S. 288 (1913), drew this balance in favor of accountability, holding that mandatory disclosure requirements advanced knowledge by preventing deceptive propaganda, modern anonymity law strongly supports the right to speak and associate anonymously. This rich constitutional tradition of support for anonymous speech and association reflects America’s historical experience with persecution and ostracism of ‘‘un-American’’ communists, members of disfavored religious sects, and advocates for racial equality. Today, anonymity has again become controversial with the rise of the Internet and privacy-enhancing technologies like encryption.

At its simplest, anonymous speech is speech that is not attributed to an author. But anonymity is more than the mere concealment of identity. An author might use a pseudonym to establish an identity distinct from his or her ‘‘true’’ identity; some individual framers of the Constitution used pseudonyms in writing the essays that later came to be known as the Federalist Papers. The U.S. Supreme Court in McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995), treated this aspect of anonymity—an author’s choice about whether and how to identify himself or herself—as part of the ‘‘content’’ of the speech, subject to strict scrutiny.

In the modern era, the Supreme Court has consistently protected anonymity as an aspect of the First Amendment freedoms of speech and association. The basic theme of this jurisprudence has been the benefit of anonymity to free speech. In Talley v. California, 362 U.S. 60 (1960), which invalidated a state law restricting the distribution of any handbill unless it included the name and address of the person who printed, wrote, compiled, manufactured, or distributed it, the Supreme Court noted that ‘‘[a]nonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind,’’ and that ‘‘identification and fear of reprisal might deter perfectly peaceful discussions of public matters of importance.’’

The Supreme Court has also been protective of anonymous association. In NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958), the Court refused to permit the state of Alabama to compel the state NAACP chapter to produce its membership records, saying that advocacy is ‘‘undeniably enhanced by group association,’’ and recognizing ‘‘the vital relationship between freedom to associate and privacy in one’s association.’’ Well aware of the racial animus in the South, the Court noted that disclosure ‘‘may induce members to withdraw . . . and dissuade others from joining it because of fear of exposure of their beliefs shown through their associations and of the consequences of this exposure.’’ Similarly, in Shelton v. Tucker, 364 U.S. 479 (1960), the Court invalidated an Arkansas statute requiring public school teachers to reveal to the state annually their group memberships and contributions for the previous five years, noting that ‘‘[e]ven if there were no disclosure to the general public, the pressure upon a teacher to avoid any ties which might displease those who control his professional destiny would be constant and heavy.’’

Today, the accountability or traceability aspect of anonymity has become more important as civil litigants and law enforcement agencies seek to discover Internet users’ identities in defamation, intellectual property, and criminal cases. The law has continued to be relatively protective of anonymity; for instance, in Columbia Insurance Co. v. Seescandy.com, 185 F.R.D. 573 (N.D. Cal. 1999), a federal district court observed that litigants’ need to seek redress ‘‘must be balanced against the legitimate and valuable right to participate in online forums anonymously or pseudonymously . . . . This ability to speak one’s mind without the burden of the other party knowing all the facts about one’s identity can foster open communication and robust debate. Furthermore, it permits persons to obtain information relevant to a sensitive or intimate condition without fear of embarrassment.’’ Modern communications technology, on the other hand, tends to expose identity unless speakers take precautions such as using encryption, anonymous remailers, or anonymous proxies. Whether governments will restrict the use of such precautionary technologies remains an open question.

LEE TIEN

References and Further Reading

• Froomkin, A. Michael, Anonymity and Its Enmities, 1995 J. Online L. art. 4
• Kreimer, Seth F., Sunlight, Secrets, and Scarlet Letters: The Tension Between Privacy and Disclosure in Constitutional Law, U. Pa. L. Rev. 140 (1991): 1
• Marx, Gary. ‘‘Identity and Anonymity: Some Conceptual Distinctions and Issues for Research.’’ In Documenting Individual Identity, J. Caplan and J. Torpey, eds. Princeton, NJ: Princeton University Press, 2001
• Thompson, E. P. ‘‘The Crime of Anonymity.’’ In Albion’s Fatal Tree: Crime and Society in Eighteenth-Century England. 1975, 255
• Tien, Lee, Who’s Afraid of Anonymous Speech? McIntyre and the Internet, Or. L. Rev. 75 (1996): 117

Cases and Statutes Cited

• Columbia Insurance Co. v. Seescandy.com, 185 F.R.D. 573 (N.D. Cal. 1999) 
• Lewis Publishing Co. v. Morgan, 229 U.S. 288 (1913) 
• McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995) 
• NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958) 
• Shelton v. Tucker, 364 U.S. 479 (1960) 
• Talley v. California, 362 U.S. 60 (1960) 
• Watchtower Bible and Tract Society v. Village of Stratton, 536 U.S. 150 (2002)