Continued War on Anonymous Speech

Source: Goldwater Institute

THE VICTIMS OF “DARK MONEY” DISCLOSURE:

Editor: This article appeared on the Goldwater Institute website on august 5th, 2015. It is as relevant today as it was then. The insidious desire by government and public officials to limit free speech by vilifying anonymous speech, the cornerstone of free speech.

How Government Reporting Requirements Suppress Speech and Limit Charitable Giving

Anonymous political speech has been essential to democratic discourse since the founding of our republic.  Ratification of the U.S. Constitution was primarily debated through a series of anonymous papers.  Yet in recent years, anonymous political speech has been under attack by so-called “dark money” critics, who demand that government expose the identities of individuals, businesses, labor unions, and nonprofits that spend money to participate in political dialogue.  Couched as “transparency” measures, “dark money” disclosure mandates are often used as excuses to silence disfavored speech.

Regulatory Efforts to Compel Disclosure.

Government reporting advocates – either in tandem with legislative efforts or when legislative efforts have been unsuccessful – have been using the power of regulatory agencies to force nonprofit organizations to reveal their donors.

The Dangers of Disclosure

Proponents of government-mandated disclosure have set forth several arguments for compelling private charitable organizations to disclose their donors.  Those arguments range from the wrong but perhaps well-intentioned to the nefarious.  In any event, the strongest arguments for government reporting are easily eclipsed by the dangers of disclosure.

Anonymous Speech Keeps Marketplace of Ideas Focused on the Message.

Anonymous speech is an essential component of free speech, which is an essential component of representative democracy.  One of the most important features of anonymous speech is that it focuses the dialogue on the message and issue, rather than the speaker.  This is invaluable and irreplaceable in literary, social, and political dialogue.  As the U.S. Supreme Court recognized in Talley v. California, “Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind.”

Indeed, the ratification debate of our own Constitution was argued primarily under the pseudonym “Publius.”  The actual authors, Alexander Hamilton, James Madison, and John Jay, feared that their arguments would be eclipsed by ad hominem attacks had the papers not been published anonymously.  At the time of ratification, Alexander Hamilton in particular was subject to personal attacks because of his foreign birth and perceived links to the British Crown.[xlvii]  As one author noted, “Hamilton’s anonymity meant to avoid prejudice and preclude obfuscation of his message, and these interests are still compelling justifications for speaking anonymously.”[xlviii]  Similarly, although a less controversial character, given the regional rivalries of the time, James Madison’s Virginian roots would have made New Yorkers suspicious of his arguments had they been penned in his own name.[xlix]  Given these realities, an objective assessment of the U.S. Constitution would have been much less likely had it not been for anonymous political speech in the Federalist Papers.  Put simply, the Constitution may never have been ratified had it not been for anonymous political speech.

The Federalist Papers are also instructive for another reason.  In Citizens United v. FCC, writing for the majority, Justice Kennedy cited to James Madison’s Federalist 10 in observing that factions will necessarily exist in our republic, “but the remedy of destroying the liberty of some factions is worse than the disease.”[l]  Justice Kennedy went on to observe, “Factions should be checked by permitting them all to speak…and by entrusting the people to judge what is true and what is false.”[li]  In our republic, citizens should be trusted to judge the value of the speech, irrespective of the speaker.  Competing arguments ought to be weighed on their merits.  Indeed, even under the most ideal circumstances, the value of government reporting mandates is negligible when the content of the speech, rather than its source is the primary consideration in evaluating the strength of competing arguments, particularly in the political context.  How many Americans are tired of ad hominem attacks on and by political actors, divorced from their positions on political issues?  How worn is the country by character assassinations perpetrated by political campaigns?  Is there not a yearning for dialogue that is above the caliber of gossip columns?  Unfortunately, disclosure mandates drive political dialogue in the opposite direction.  The result, as Madison and Justice Kennedy observed, is a “remedy” worse than the “disease” and an affront to the sensibilities of free people who should be entrusted to weigh the value of free speech.

The value of anonymous speech is not limited to purely political dialogue.  Authors of literary works as well as editorials and news articles have long published anonymously or under assumed names.  Lewis Carroll published anonymously to maintain his privacy.  George Orwell wrote under a pen name because he was embarrassed of his early poverty.  Both Charlotte and Emily Bronte published their classics under pseudonyms to avoid the significant gender biases of the time.  Other authors may do so out of fear of economic or social retaliation.  As the U.S. Supreme Court recognized in McIntyre, “Whatever the motivation may be, at least in the field of literary endeavor, the interest in having anonymous works enter the marketplace of ideas unquestionably outweighs any public interest in requiring disclosure as a condition of entry.”[lii]

The same is true of the news media.  Reporters routinely rely on anonymous sources to reveal major and significant newsworthy events.  For example, the identity of Bob Woodward’s and Carl Bernstein’s primary source, Deep Throat, who provided information on the Nixon Administration’s involvement in the Watergate scandal was not revealed until 2005 – over 30 years after President Nixon resigned.[liii]  Indeed, reporters have faced incarceration for refusing to reveal their anonymous sources, even during national security investigations.[liv]  These reporters reason, correctly, that anonymous speech often encourages truthful reporting, particularly from those who fear retaliation or retribution for speaking.

In addition to news reporting, every major newspaper in the country continues to publish anonymous editorials and commentary pieces.  It can hardly be argued that media reports and truth in reporting are not tremendously important public values.  But imagine a law that compelled the disclosure of news sources who choose to be anonymous or mandated that every newspaper editorial include a byline – and the names of every stockholder in the media corporation that owns the newspaper.  The outrage would be swift and justified.  The same should be true in the context of donor disclosure to nonprofit organizations – and for the same reasons.  The real value of free speech is in the message, not the messenger, and the dangers of disclosure far outweigh any supposed benefits.  One of the most significant such dangers is preventing retaliation against speakers who choose to be anonymous by those who disagree, particularly when speaking truth to power.

Anonymous Speech Prevents Retaliation, Especially When Speaking Truth to Power.

Writing for the majority in Talley v. California, Justice Black wrote, “Persecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all.”[lv]  Political actors have routinely sought the identities of speakers with whom they disagree in order to harass, humiliate, and ultimately silence them.

During the Civil Rights era, for example, the Alabama attorney general sought to compel the National Association for the Advancement of Colored People (“NAACP”) to turn over the names and addresses of all of its members to the state.  This act of force and intimidation was fortunately rebuffed by the U.S. Supreme Court as a violation of the NAACP’s and its members’ First Amendment rights.

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Goldwater Institute: THE VICTIMS OF “DARK MONEY” DISCLOSURE: