The Supreme Court has protected anonymous speech under the First Amendment in areas of political activity, balancing it against competing interests, such as in campaign finance disclosures. In the civil rights case NAACP v. Alabama, it protected a right of NAACP members "to pursue their lawful private interests privately and to associate freely with others in so doing" and ruled that the state could not compel the organization to hand over its membership list. In McIntyre v. Ohio Elections Commission, it struck down an Ohio elections law that prohibited anonymous campaign literature after a woman was found in violation for distributing leaflets opposing a proposed school tax levy without her name on it as the author. (Photo of a volunteer handing out political literature at a health care reform rally, taken by ACT NOW, via Wikimedia Commons, CC-BY-S.A. 3.0)
Speakers and writers seek anonymity as protection against prosecution, harassment, abuse, and invasions of their privacy. The government seeks publicity of speakers’ identities to prosecute other crimes, such as fraud and libel, provide information to the public, discourage corruption, and reduce the appearance of corruption.
The Supreme Court has protected anonymity under the First Amendment, but as with other constitutional rights, it has balanced protection for anonymous speech against competing interests, notably in the areas of political activity, campaign finance, and use of the Internet.
Cases in which the Supreme Court has protected anonymous speech
From the United States’ earliest days, speakers addressing controversial public questions have sought anonymity. The authors of the Federalist Papers, which supported ratification of the Constitution, published under the pseudonym Publius, and the revolutionary-era pamphleteers had published under assumed names, often to escape prosecution.
Protection of anonymity in speech and association reached its highwater mark in a series of decisions protecting civil rights activists.
In Watkins v. United States (1957), NAACP v. Alabama (1958), Bates v. Little Rock (1960), and Gibson v. Florida Legislative Investigation Committee (1963), the Court protected the anonymity of members of controversial groups to ensure their First Amendment right of association.
In Talley v. California (1960), McIntyre v. Ohio Elections Commission (1995), Buckley v. American Constitutional Law Foundation (1999), and Watchtower Bible and Tract Society of New York v. Village of Stratton (2002), the Court protected the anonymity of individuals engaged in personal political activity, such as passing out leaflets or gathering petitions.
Yet, in Lewis Publishing Co. v. Morgan (1913), the Court had decided that if a publication seeks to qualify for a special postage rate or “privilege,” the government is justified in asking that publishers register their name and addresses with the postmaster general.
Courts have upheld identity disclosure laws in campaign finance
The Court has been less protective of anonymity in the arena of campaign finance.
In Buckley v. Valeo (1976), the Court upheld compelled disclosure of campaign contribution information while keeping open the possibility that certain aggrieved groups might not need to disclose if they could show a record of threats, harassment, or reprisals.
In Brown v. Socialist Workers ’74 Campaign Committee (1982), the Socialist Workers Party showed a sufficient record of harassment to receive a constitutional exemption from Ohio’s disclosure laws and is the only group to date that has done so.
The tension between the protection of anonymity in some cases and the recognition of a state interest in compelled disclosure in others was left unresolved in the Court’s decision in McConnell v. Federal Election Commission (2003).
The Court in McConnell upheld the disclosure requirement of the Bipartisan Campaign Reform Act that a person spending $10,000 on an electioneering communication, or donating $1,000 to a group for that purpose, report with the Federal Election Commission. The Court found the requirement “served important state interests . . . [in] providing the electorate with information, deterring actual corruption and avoiding its appearance, and gathering data necessary to enforce more substantive electioneering restrictions.”
That opinion asserted that McIntyre, which held political disclosure unconstitutional, should be distinguished from McConnell without explaining the basis for the distinction.
In dissenting from a denial of certiorari in Delaware Strong Families v. Penn (2016), Justice Clarence Thomas expressed renewed concerns about the need to shield the anonymity of some donors who might otherwise be targeted for their contributions.
Because the corruption concern surrounding campaign contributions and spending involve undue influence by donors and spenders, and candidates, scholars Bruce Ackerman and Ian Ayers have suggested that all contributions be made anonymously through a governmental clearinghouse. Donors could always claim that they had given funds to a candidate, but the “secret donation booth” system would prevent verification, and thus deny officeholders and donors the ability to enter into corrupt agreements.
Internet presents new issues of anonymous speech
The ascendancy of political communications and fundraising via the Internet is raising additional issues of anonymity. Many individuals using the Internet for political discourse do so under pseudonyms, posting on Web sites confident that their identity will remain secret. Those seeking to remain anonymous in e-mail can use re-mailing services, some located offshore, that render their identity impossible to trace. If anonymity can be achieved outside the jurisdiction of the United States, then for Internet speakers willing to take additional precautions, it may matter little what federal or state disclosure laws require. It also means that such activity is outside the reach of other laws, such as those that punish libel and defamation, and those protecting intellectual property.
Allison Hayward is an elections and ethics attorney in California. She serves on the board of the Office of Congressional Ethics and on the California Fair Political Practices Commission. This article was originally published in 2009.Send Feedback on this article