ANONYMOUS POLITICAL SPEECH

Political speech, the Supreme Court has often indicated, is at the core of the protection afforded by the First Amendment, given its central role in the democratic process. But it takes on a somewhat different cast when it is delivered anonymously—without any attribution of authorship (true anonymity) or with false or fictitious attribution of authorship (pseudonymity). On the one hand, anonymous or pseudonymous speech can function as a "shield from the tyranny of the majority." Requiring listeners to assess the value of speech on its own merits—that is, without regard to the speaker's popularity or unpopularity—allows voices that might otherwise be drowned out or dismissed to participate in and enrich the public debate. Moreover, insulating proponents of unpopular causes against retaliation encourages persecuted groups to speak without fear of reprisal. As the Court has noted on many occasions, anonymous political speech has a distinguished history in the political process of the United States, from colonial-era critics of the British Crown seeking protection from prosecution for seditious libel; to the authors of the eighty-five federalist essays (who published their contributions under the pseudonym "Publius"); to members of the National Association for the Advancement of Colored People protesting racial segregation in the 1950s. On the other hand, precisely because it is harder to trace the source of an anonymous or pseudonymous communication, distributors of false, fraudulent, or libelous information, or those seeking to use political contributions to corrupt the political process, might use anonymity as a shield to avoid accountability or public scrutiny.

The Court has had few opportunities to assess the constitutionality of government regulation of anonymous political speech. In McIntyre v. Ohio Elections Commission (1995), the Court made clear that such regulation was to be treated as a "content-based regulation … of pure speech" subject to the same "exacting scrutiny" as other attempts to regulate decisions concerning omissions or additions to the content of speech. As such, the Court will uphold regulation of this kind only where it is "narrowly tailored to serve an overriding state interest."

What is less clear from the limited precedent in this area is how the Court will strike the necessary balance so as to determine whether any particular state interest is sufficiently "overriding" to justify limitations on anonymous communication. In McIntyre itself the Court struck down Ohio's blanket ban on all anonymous campaign literature, finding the main interest asserted by the state—preventing the dissemination of fraudulent and libelous statements—insufficient to support so sweeping and "indiscriminate" a disclosure requirement. At the same time, the Court indicated that the state's interest might well justify a more limited identification requirement (although it gave no hint about what such a regulation would look like). At the same time, it strongly reaffirmed an earlier precedent—buckley v. valeo (1976)—upholding disclosure requirements in the context of campaign contributions where the state interest in avoiding the appearance of corruption was served and the regulation was less intrusive on political self-expression.

David G. Post

Dawn C. Nunziato
(2000)

(see also: Freedom of Speech.)

Bibliography

Froomkin, A. Michael 1996 Flood Control on the Information Ocean: Living With Anonymity, Digital Cash, and Distributed Databases. Journal of Law & Commerce 15:395–507.

Post, David G. 1996 Pooling Intellectual Capital: Thoughts on Anonymity, Pseudonymity, and Limited Liability in Cyberspace. University of Chicago Legal Forum 1996:139–169.