Rethinking reporter's privilege.

• Author: Jones, RonNell Andersen
• Position: II. An Anonymous-Speech Analysis through Conclusion, with footnotes, p. 1250-1282

1. Anonymous-Speech Doctrine

   In articulating the doctrinal contours of the right to speak anonymously, the Supreme Court has stressed the First Amendment value of ensuring a flow of information to the public. (186) This emphasis makes clear that the anonymous-speech right exists, at least in part, to meet the same important societal ends that the post-Branzburg reporter's privilege seeks to meet. (187) That is, both approaches recognize and are driven by what might be called "public-information" values. But the anonymous-speech approach also recognizes and is driven by what might be called "individual-liberty" values. An investigation of the development and operation of the anonymous-speech doctrine plainly demonstrates the wider scope of First Amendment values served by the anonymous-speech right--and the clearer position that such a right occupies within the First Amendment framework.

   Public-information values have been carefully enunciated by the Court in anonymous-speech cases. When the Court first set forth the anonymous-speech doctrine in Talley, the historical argument in support of anonymous-speech protection was centered on a free-flow-of-information premise: the First Amendment must protect anonymous distributions of literature in order to ensure that certain literature will in fact be distributed. (188) The petitioner in Talley was a civil fights activist who had distributed unsigned handbills in Los Angeles calling for a boycott of merchants that he claimed sold goods manufactured by companies that discriminated against minorities in hiring. (189) When charged under a city ordinance forbidding the distribution of anonymous handbills, (190) Talley challenged the law as an unconstitutional abridgement of the freedom of speech. (191)

   Writing for a six-three majority, Justice Black agreed that the ordinance was void on its face and stressed the importance of anonymous speech in ensuring dialogue on "public matters of importance." (192) Explaining that the Court had long recognized that "identification and fear of reprisal might deter perfectly peaceful discussions," (193) the Talley Court stated that there could "be no doubt that [the] identification requirement would tend to restrict freedom to distribute information and thereby freedom of expression." (194) Setting forth numerous examples of ways in which anonymous communications "played an important role in the progress of mankind" (195)--including the publication of the constitutionally foundational Federalist Papers under fictitious names (196)--the Court observed, "It is plain that anonymity has sometimes been assumed for the most constructive purposes." (197)

   Thirty-five years later in McIntyre v. Ohio Elections Commission, (198) the Court reaffirmed Talley's vibrant protection of anonymous speech when it declared unconstitutional (199) a law prohibiting the distribution of anonymous campaign literature. (200) The Court held that "[a]n author generally is free to decide whether or not to disclose his or her true identity." (201) The McIntyre Court found that a citizen who distributed handbills at public meetings opposing a school tax referendum and signed them "CONCERNED PARENTS AND TAX PAYERS" rather than with her own name, (202) had a constitutional fight to do so, notwithstanding the state's countervailing interests in helping voters assess validity and reduce fraud. (203) The provision of the Ohio Code forbidding anonymous speech was struck as unconstitutional, (204) with the Court again insisting that under the First Amendment, speaking anonymously "is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent." (205) It underscored the public-information values of anonymous speech by citing the long tradition of influential authors writing anonymously or pseudonymously--including Mark Twain, O. Henry, Benjamin Franklin, Voltaire, George Eliot, and Charles Dickens (206)--and by noting the importance of ensuring that information is not self-censored when speakers fear "economic or official retaliation," "social ostracism," or loss of privacy. (207)

   Thus, the Court squarely recognized that protection of anonymous speech advances the First Amendment's public-information goals of encouraging community-serving information and increasing the contributions willingly made to the marketplace of ideas. (208) First Amendment scholars and jurists have noted that removing barriers to the flow of information has the large-scale societal benefits of enriching discourse (209) and enhancing democratic self-governance. (210) It is the way that the First Amendment serves the many by protecting the one.

   Importantly, though, the case law makes clear that this set of public-information values represents only half of the dual purposes served by protecting anonymity in communications. Constitutional protection of anonymous speech also advances the First Amendment's individual-liberty goals, facilitating the overarching "purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation--and their ideas from suppression--at the hand of an intolerant society." (211) The freedom to speak anonymously, in other words, is designed to serve the one even when it does not serve the many, by acting as "a shield from the tyranny of the majority." (212) It appears that the Court's motivation for protecting anonymous speech has thus gone beyond eliminating obstacles to individual communication of publicly useful information, and has additionally embraced the self-fulfillment and individual-autonomy goals of the First Amendment (213) "by enabling individuals to explore new ideas, new means of expression, and even new identities" and by allowing some speakers simply to "derive internal satisfaction from not having their true identity revealed." (214) This protection allows a speaker to ensure that readers will not prejudge her message simply because they like or dislike its proponent, (215) and thus works a direct, individual-liberty benefit upon the speaker herself.

   In recognizing these ways in which anonymous speech is valuable in preserving individual liberty of expression, the McIntyre Court gave an additional doctrinal justification for finding government interference with anonymity unconstitutional: it is strongly analogous to content control. (216) Decades of First Amendment jurisprudence have firmly established that content-based regulations of speech ordinarily receive strict scrutiny. (217) Unless the government can prove that a content-based regulation on speech is the least restrictive means of meeting a compelling governmental interest, the regulation will fail constitutional review. (218)

   Writing for the Court in McIntyre, Justice Stevens noted that governmental demands for a speaker's name run entirely afoul of this foundational First Amendment command in both a theoretical and a practical way. First, identification requirements essentially force the speaker to reveal "the content of her thoughts on a controversial issue," (219) thus forcing the conveyance of content that the speaker did not wish to convey and conflicting with the essential theoretical underpinnings of the prohibition on content-based regulation. Second, and more concretely, such requirements literally force the inclusion of additional text--the speaker's name--when the speaker had made the editorial judgment to exclude it. (220) "Accordingly," Justice Stevens wrote, "an author's decision to remain anonymous, like other decisions concerning the omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment." (221) McIntyre thus reinforced the individual-liberty values at stake in a decision to speak anonymously and cemented the right to speak anonymously as a logical, even necessary, component of the most foundational of First Amendment doctrines.

   Although Talley and McIntyre are widely regarded as the core cases on the central question of the anonymous-speech right, the Court has recognized variations of the right in a number of other contexts, including cases in which groups or their members were required to disclose their memberships (222) and cases in which speakers were required to obtain named permits before engaging in their communicative activity or were required to wear identification badges while engaging in that activity. (223) The Court has consistently asserted the importance of the same anonymity values addressed in the core cases. (224) Most recently, in Watchtower Bible and Tract Society of New York, Inc. v. Village of Stratton, the Court reiterated the central tenets of the anonymous-speech doctrine in the context of an ordinance that required an individual engaging in door-to-door advocacy to display a permit showing the individual's name. (225) The Court criticized the permit obligation for forcing the "surrender of [the speaker's] anonymity" and highlighted the privacy, source-bias, and retaliation concerns that have been recognized in other anonymous-speech cases. (226) Despite the fact that a door-to-door speaker would of course reveal her physical appearance to the homeowner and thus never preserve total anonymity, the Watchtower Court spoke in strong terms about the right not to share one's name or identity and about the potential chilling effect of the ordinance on those who may wish to canvass anonymously for unpopular causes. (227) Importantly, then, even in instances in which total anonymity is not guaranteed, the Court has protected the right to speak without connecting one's name to one's message.

2. Potential Perils of Anonymous Speech

   To be sure, this vibrant defense of anonymous communication is not cost free. As the Court in each of the above cases acknowledged, (228) and as scholars have continued to explore, (229) strong anonymity protection creates the risk that a speaker will shield her...