Anonymous speech tough to pull off in trying times
By Douglas Lee
Special to freedomforum.org
All things considered, a zealot hoping to spread his word anonymously these days might be a little nervous.
Law enforcement officials, after all, suddenly have sweeping new powers to search homes, tap telephone conversations and track a person’s use of the Internet. A “you’re-either-for-us-or-against-us” public policy places political correctness on the same fruited plane as patriotic hymns. And, if all that weren’t enough, citizens nationwide now feel duty bound to report even the slightest suspicious behavior.
Surprisingly, though, at least some judges remain willing to protect the anonymous pamphleteers, critics and instigators who have fomented political unrest since colonial days. In a recent Texas case, for example, an appellate court struck down a ban on anonymous political ads. Potentially even more significant is the U.S. Supreme Court’s decision to hear Watchtower Bible and Tract Society v. Village of Stratton, a case that as narrowed by the court focuses squarely on the First Amendment rights of anonymous speakers.
In the Texas case, Texas v. John Doe, the state sought to enforce a provision of its election code that requires a person who arranges for a printed or broadcast advertisement to include his or her name in the ad. Political advertising is defined to include any communication supporting or opposing a candidate, a party or a public measure. Violation of the statute constitutes a Class A misdemeanor.
The ad at issue in Doe was an anonymous flier that described a candidate for the Dallas City Council as a “puppet who can’t tell the truth.” After winning a lengthy battle with the company that distributed the flier to learn who created it, the Dallas County district attorney indicted that person for violating the election code.
Defending himself under the John Doe pseudonym, the flier’s creator argued that the ban on anonymous political ads violated his First Amendment rights. The district attorney countered that the ban was a permissible regulation of elections, arguing it was necessary to deter political corruption, notify the public of any allegiance a candidate might have to a political advertiser and provide a means for detecting expenditures made by political action committees and corporations.
The trial court disagreed, and the appellate court affirmed. Quoting the U.S. Supreme Court’s 1995 decision in McIntyre v. Ohio Elections Commission, the appellate panel held that “an author’s decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of freedom of speech protected by the First Amendment.” This freedom cannot be overcome by an interest in regulating elections, the court said, because other provisions of the election code adequately protect that interest.
Whether people engaged in anonymous non-political speech enjoy the same protection likely will be decided by the court in Watchtower Bible and Tract Society. In this case, a local Jehovah’s Witnesses congregation challenged an Ohio village’s ordinance that requires a solicitor to obtain a permit from the mayor before going door-to-door. The permit application requires solicitors to provide, among other information, their names and affiliations.
Both the trial and appellate courts upheld the ordinance, saying it neutrally applied to all speakers and therefore did not infringe upon any First Amendment right. One of the free-speech arguments rejected by the 6th U.S. Circuit Court of Appeals was the congregation’s claim that the ordinance violated McIntyre because it prevented solicitors from remaining anonymous. The ordinance at issue, the court said, did not inhibit the right to speak anonymously. Instead, the court reasoned, the solicitors surrendered their anonymity when they chose to go door-to-door and thus revealed their physical identities to homeowners.
While Watchtower Bible and Tract Society presents a number of free-speech and freedom of religion issues, the court accepted the case only to review the anonymous speech issue. On its face, the court’s decision to take the case on this limited issue suggests the court is inclined to overturn the 6th Circuit’s ruling. A reversal seems particularly likely in light of the lower court’s unprecedented holding that a person who allows himself or herself to be seen while speaking can be compelled to also disclose his or her name.
On the other hand, the court might have taken the case to scale back McIntyre's reach. Chief Justice William Rehnquist and Justice Antonin Scalia dissented in McIntyre, and Justices Clarence Thomas and Ruth Bader Ginsburg concurred in opinions designed to limit the breadth of McIntyre's holding. Political and other anonymous speakers therefore undoubtedly will watch the case closely.
Regardless of how the court decides Watchtower Bible and Tract Society, it seems unlikely that anonymous speakers will obtain a reprieve from recent rulings requiring the disclosure of their identities in other contexts. Just last week, for example, a federal magistrate in Louisiana ordered a Web site host to turn over the names of authors who allegedly libeled a college administrator. In September, a California judge held that a taxpayer group running television advertisements was not exempt from campaign-disclosure laws. These cases, and many like them, establish a relatively clear rule while anonymous speakers have considerable rights, they cannot hide behind their anonymity to avoid the reach of laws applicable to all speakers.
In today’s political and social environment, our tolerance of anonymous speakers likely will be severely tested. One sign of whether we are prevailing in our current struggle, however, will be whether we and our courts can resist the temptation to silence those we cannot see and do not know.
Douglas Lee is a partner in the Dixon, Ill., law firm of Ehrmann Gehlbach Badger & Lee and a legal correspondent for the First Amendment Center.
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