In my opinion, the right to “anonymous speech” is useful shorthand, but can be misleading.  Indeed, I think that becoming overly focused on whether there is a specific “right to speak on political issues *anonymously*” misconceives the inquiry and, ultimately, what First Amendment protection is all about. 

 

In a trivial sense, it’s obvious that I don’t have an absolute right to speak anonymously, because I have no right to prevent other people from attempting—within the bounds of the law—to discern my identity.  If I choose to literally get up on a soapbox, I cannot compel listeners to avert their eyes.  But that’s not what the Supreme Court is talking about in cases like McIntyre v. Ohio Elections Commission.  Rather, they’re talking about speaker autonomy: the right to craft both individual political messages and a campaign of those messages in the manner that the speaker believes will be most effective. 

 

A speaker who chooses to stand on a soapbox has obviously concluded that his message can be presented effectively even if some people—those in attendance and those who hear about it secondhand—might recognize him.  But another speaker, like Margaret McIntyre, might believe that her message is more effective if presented in the form of leaflets left on cars, some anonymous and others not.  And the members of a nonprofit group might believe that their identities would so detract from their message that they take elaborate steps to maintain their anonymity.  Note that none of these choices has anything to do with fear of harassment; this is purely about crafting messages in the manner that the speaker believes is most effective.

 

None of these speakers has a First Amendment right to prevent members of the public from lawfully attempting to divine or publicize their identities.  But that’s very different from saying that the government can compel these speakers to divulge information about themselves or their activities or their associates that they otherwise would not divulge.  They have, after all, chosen to present their messages without this information—either because they believe it is irrelevant or because they believe it detracts from the messages—and that choice is what the First Amendment protects.

     

As for your specific policy suggestion—requiring groups to prominently label their communications as anonymous—I think that would similarly violate the groups’ autonomy.  It forces them to emphasize something they otherwise would not:  their choice not to disclose their donors.  And it seems to do so for the sole purpose of making those groups’ political messages less persuasive to listeners (“Watch out, this is a message from a scary anonymous group!”).  I don’t think that’s a legitimate reason for regulation and, indeed, the Supreme Court rejected it in McIntyre.  See 514 U.S. at 348 n.11 (“Don’t underestimate the common man. People are intelligent enough to evaluate the source of an anonymous writing. They can see it is anonymous. They know it is anonymous. They can evaluate its anonymity along with its message, as long as they are permitted, as they must be, to read that message. And then, once they have done so, it is for them to decide what is ‘responsible’, what is valuable, and what is truth.” (quoting New York v. Duryea, 351 N.Y.S.2d 978, 996 (1974)).

Best,

Paul

 

 

 

I come at this issue as a strong defender of free speech rights, raised in an ACLU household, and so on. So I'm in favor of the principle of free speech, especially political free speech.