Anonymous Speech and the Privacy of Speakers

The United States Supreme Court has at various times held that the First Amend­ment protects the anonymity of certain vulnerable speakers,^[241] and that it also entails a privacy right regarding membership in political organizations.^[242] The government’s interests in knowing the identity of certain speakers and the membership of certain organizations are avoiding audience deception - the ad hominem argument that knowing who is behind positions helps audiences assess the positions’ credibility - and identifying harmdoers (those who are defaming others, violating others’ copyrights, inciting violence or conspiring to commit violence, and so on).

Do speaker anonymity and privacy fall within the scope of freedom of expression? Again, the answer turns on the harms the government is seeking to prevent and whether interdicting messages because of their content is a step on preventing that harm. With respect to preventing the deception of the audience by revealing the identity of speakers and the membership of organizations that “speak,” one should view the government’s actions as message driven. After all, what government is attempting to do is alter the speaker’s message, albeit only slightly.

That having been said, such government actions are theoretically no differ­ent from other laws targeting messages that government believes are deceptive. I have already taken these laws up in Chapter Four. All that anonymity adds to the analysis is that speakers’ reasons for withholding their identity from mes­sages are frequently different from their reasons for wording their messages in potentially misleading ways. Typically, the motive for anonymity is fear of some sort of reprisal against the speaker. Although that motive makes govern­ment’s attempt to eliminate anonymous speech on the basis of its deceptiveness more likely to deter speakers from speaking than will government’s ordinary laws against deceptive speech, that difference is one of degree, not one of kind.

Government’s actions directed toward identifying lawbreakers - which goal lies behind many of its incursions on privacy, and not just speaker and organiza­tion privacy - fall into the category of government information-gathering, not message-targeting. Those actions are therefore Track Two actions with speech effects and, as such, covered by the discussion in Chapter Two.

VI.