Anonymity and the Constitutional Right to be Nameless

Published April 12, 2002

One of the most interesting facts about George Orwell, author of 1984 and Animal Farm, is that he was not George Orwell. The man who created a society of total transparency and observation chose to conceal his own name, Eric Blair. Authors like Blair, Mary Ann Evans (George Eliot) and Samuel Clemens (Mark Twain) adopted nom-de-plums for a variety of reasons ranging from persecution to prejudice to privacy.

The value of anonymity in public expression is an issue that is now squarely before the Supreme Court. In a little known case, Watchtower Bible Society v. Village of Stratton, the Court is considering a relatively innocuous ordinance requiring a permit for any door-to-door solicitation. As a regulation on commercial solicitation, this ordinance would have attracted little interest but the village included both political and religious advocacy under its regulation. It is now facing a challenge by those who view such speech not as a permitted privilege but as a fundamental right, including the right to remain anonymous in advocacy.

While the Court has danced around the “right” of anonymity in prior cases, this ordinance may require the Court to either reinforce a free-standing right of anonymity or declare anonymity something of a historical relic. It may also force the Court to better describe the interrelationship between the need for anonymity and the guarantee of rights like that of association and speech.

Anonymous writing was employed by the political figures who first articulated the foundations for the American republic. In the Federalist Papers and other publications, contemporary readers could only theorize on the true identity of “Brutus,” “Publius,” “Cato,” “Centinel,” “The Federal Farmer,” and “Junius.” The decision of individuals like Benjamin Franklin, Alexander Hamilton, and James Madison to write under assumed names was not viewed in the least odd or suspicious at the time. Rather, the anonymous voice in politics was viewed as an honored practice.

Of course, the framers may be precisely the types that the Village would want to deter. James Madison was criticized by other framers for unrelenting, and seemingly unending, diatribes on subjects like the evils of factions. If Madison got his foot in your door, you would soon be begging for a Jehovah’s witness. Then there is Alexander Hamilton who was once accused (wrongly) of fraud and actively sought the overthrow of his prior government. As for Thomas Paine, few would even open the door for a man who was routinely thrown out of bars and countries as a public annoyance.

It is doubtful, however, that these men would consent to applying for the “privilege” to speak in the Village of Stratton, or anywhere else. The village ordinance requires registration based on the identification of both advocates and their causes. It also requires them to list the residences that they intend to solicit or canvass. It further requires them to describe how they will conduct themselves and any “other information concerning the Registrant[s] and [their] business or purpose as may be reasonably necessary to accurately describe the nature of the privilege desired.” Finally, it imposed a 5:00 p.m. curfew for such solicitation.

While Stratton could not defend these restrictions on any increase in crime related to door-to-door solicitation, the ordinance was justified by the “anticipated harm” caused by possible fraud or crime. This was apparently enough for a trial court and the Sixth Circuit, which upheld the ordinance as constitutional after a few provisions were modified or struck.

Perhaps due to the importance of anonymous writing at our inception, the United States has often protected anonymous speech. One of the strongest defenses of this right came in 1938 in Lovell v. Griffen when the Court unanimously struck down an ordinance in Georgia that required a permit to distribute any literature within the town. However, in Buckley v. Valeo in 1976, the Supreme Court allowed anonymity to be restricted in the identification of campaign donors because of the compelling state interests of the Federal Election Campaign Act of 1971.

One of the most recent cases involving anonymity revealed the current split on the Court. In McIntyre v. Ohio Elections Commission, the Supreme Court struck down an Ohio law in 1995 that required individuals to print their name and address “in a conspicuous place” on political literature. Associate Justice John Paul Stevens, writing for the majority, applied strict scrutiny and found the law unconstitutionally vague. Stevens noted that “[a]nonymity is a shield from the tyranny of the majority . . . [It] protect[s] unpopular individuals from retaliation – and their ideas from suppression – at the hand of an intolerant society.”

While the majority emphasized the importance of anonymity, it was Associate Justice Thomas in a concurrence who saw anonymity as the critical issue for review. Thomas’ historical case for a “right” to anonymity drew sharp criticism in the dissenting opinion by Associate Justice Antonin Scalia (and joined by Chief Justice William Rehnquist). Scalia contested the view of anonymity as a constitutional right and argued that Ohio’s law was reasonable in light of its governmental interests.

Like privacy, anonymity may be a diminishing concept with young Americans. In my Constitutional Law and the Supreme Court class, Watchtower Bible Society drew skepticism from some students who questioned the importance of anonymity or, for that matter, door-to-door solicitation. In the age of the Internet and cyber chat rooms, individuals who go door-to-door seem more irrelevant and even threatening. Moreover, there appears to be less sympathy for those with a fear of being known in a society that is increasingly transparent. In such a fishbowl society, the desire for anonymity seems a quaint, if not a quixotic, obsession.

Anonymity, however, is not simply the fixation of some unhinged individuals still coping with fears of government microchip implants. There remain citizens who need anonymity to speak freely. For some, there is a fear of the government and a distrust of registration systems. Given the history of abuses by government of its critics, this fear is hardly unreasonable. Starting with the Alien and Sedition Act under President John Adams, the government has periodically cracked down on vocal critics. Such fears are magnified during periods of war or strife. For example, when Attorney General John Ashcroft denounced critics of the war in testimony to Congress as “aiding terrorists,” one could feel many potential critics recede further into the shadows. Criticism of the war or anti-terrorist measures is particularly difficult for individuals of Arab descent or nationality who may fear retaliation against themselves or their family.

Other citizens may fear reprisal from local government due to their employment or business with the city. If a citizen wants to advocate door-to-door against the corruption in city hall, a law requiring that he register with city hall creates an obvious chilling effect. In small town and villages, the act of registration with a particular cause can isolate an individual. Certainly, the chilling effect of the fear of isolation and retaliation increases in smaller communities.

Anonymity also allows some unpopular groups to speak without being immediately disregarded. Thus, a communist or fringe group may have a view on a school board but wants this view to be considered on its own merit without prejudice of association. In McIntyre, the Court noted the need to protect such groups and individuals who use anonymity so that “readers will not prejudge [their] message because they do not like its proponent.”

There are obviously those in society who crave anonymity for fear of the government knowing about their activities, even their lawful activities. As more areas fall to surveillance or monitoring in society, these individuals have become acutely sensitive to measures that demand self-identification of their views or beliefs. They live, as Winston Smith in 1984, “from habit that became instinct” in avoiding the further loss of privacy and anonymity. They have a legitimate interest in having such a protected realm, even when they seek to express their views with neighbors.

Registration systems have a chilling effect entirely separate from the fear of being known. When a citizen is finally moved to reach out to her neighbors in some political cause, a registration system imposes an additional cost on such spontaneous expression by requiring the citizen to travel downtown and register for the right to engage in door-to-door advocacy.

This is not to suggest that the Village of Stratton does not have a governmental interest in requiring greater monitoring of door-to-door solicitation. The obvious danger goes beyond simple fraud. Many people feel uncomfortable with strangers appearing at their door and the physical vulnerability of being alone during such encounters. For that reason, a registration of commercial solicitors could pass constitutional muster. However, if religious and political speech were excluded, there is an obvious concern that flim-flam experts could simply refashion their approach from classic Ponzi schemes to classic fraudulent bible sales. Yet, there is no reason to believe that such individuals would even register in a given town and certainly those inclined on physical assaults are unlikely to seek a proper permit as a predicate.

The failure of the Village of Stratton to exclude political and religious speech from its ordinance is telling. Where political debate was common in the 1700s, it has largely moved to the periphery of our society. Political and religious speech is now simply grouped with annoying commercial solicitations. Regardless of whether someone is selling a vacuum or advocating an idea, they are identified, permitted and monitored to protect the public.

Watchtower Bible Society may be decided on vagueness grounds and circumvent the entire issue of anonymity. However, it is an issue for our time. As we increasingly yield to the countless demands for increased surveillance and monitoring, the fight over anonymity reminds us of what we may have lost in the crush of technology and modern life. Forcing some people into the light just may force many ideas into the darkness. It is certainly more likely that the next unsolicited knock at your door is going to be a real pain and not Thomas Paine. However, given the diminishing quality of political discourse in this country, we may want to keep the door open a bit just in case.

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