Of course there can be "talk back" to anonymous speech. If I write and distribute an anonymous pamphlet (like the Federalist or the Memorial and Remonstrance), you can write and distribute a pamphlet, anonymously or not, that takes an opposing view. And then I can respond, anonymously if I so choose. 

My anonymity doesn't prevent you from countering my speech. It does mean that can't wave your pamphlet particularly in my face or convince others to take action against me personally. 

The kind of speech that cannot be countered is not anonymous speech but nonpublic speech. If I don't know what you have said to a voter, I don't know that there is a need to counter it. But no one would argue that the government should require private conversations between private to be made public. (Should MOveOn.org be required to disclose its list of email addresses?) At least I hope that election law list members would not support a FOIA that applies to such private communications. (Of course my view is that such a FOIA would violate the rights of the private speakers in various ways, including by compelling them to speak.) Such a FOIA would be different from a requirement of disclosure of the amount of money spent campaigning.

Perhaps a more interesting question is whether there is an unlimited right to petition government officials anonymously, by way, for example, of unsigned letters to a member of Congress or to a cabinet official (or city mayor). I suppose this gets into the regulation of lobbying, which is a subject about which I know little.

Mark Scarberry
Pepperdine

-----Original Message-----
From: election-law-bounces@mailman.lls.edu [mailto:election-law-bounces@mailman.lls.edu] On Behalf Of Paul Lehto
Sent: Thursday, April 07, 2011 9:17 AM
To: Volokh, Eugene
Cc: election-law@mailman.lls.edu
Subject: Re: [EL] The limits of "anti-harassment laws" as means for protecting anonymity

Eugene I'm surprised you'd miss this, or perhaps you can clarify if
you didn't miss it:

We can also "do something" about crime such as your example of
muggings:  We can institute a police state.  The streets were
essentially safe to walk in most of the old Soviet Union -- crime can
be virtually nil if the right police state apparatus is invoked, but
the cost to freedom is way too high and the government itself becomes
the crime.

It is the very nature of the speech right and rights in general that
they should be allowed free exercise, with prosecution or response
based on abuse AFTERWARD, if at all.  Anonymity deprives speakers of
anybody to talk back to, there's nobody to engage in true political
discourse with, which is the core purpose of Free Speech.    Anonymity
in nearly all cases protects only one-way speech because of the
inability to respond (outside rare cases of newspapers publishing
anonymous debates), and thus is not at the core of what the First
Amendment seeks to protect.

One way speech is a core element of propaganda.  Two-way speech must
not be anonymous - and it fosters the truest free speech purpose of
political discourse leading to an informed electorate.  Defeating (in
part) the cause of true political discourse only bolsters the dumbing
down of the electorate through reduced real discourse, and ultimately
the charge of "dumb" voters is the very foundation of every form of
non-democratic government.  Such dummies need philosopher kings or
iron hands to rule them...

Paul Lehto, J.D.

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