In a paper not yet published, Martin Redish argues for more attention to anonymous political speech and he sketches a case for prohibiting forms of it altogether as a defense against political fraud.  Paul Horwitz takes up this challenge in this interesting paper, available on the Social Science Research Network.

     Horwitz argues that Redish does not quite have his categories in good order.  There is anonymous speech—completely hidden authorship—but there is also pseudonymous speech, such the “Publius” Federalist Papers. The pseudonymous author might be published repeatedly with the same pseudonym over time, and he might assume this identity as it were his own, and quite real, for at least these expressive purposes.  There are further subdivisions within the categories of anonymous and pseudonymous speech.

     These distinctions are important, Hortwitz says, because anonymity and pseudonymity may have “signaling” functions that are expressive in character.  The name the author chooses signals something about the trustworthiness to which he may be entitled.  It is not, then, correct to deny these attribution choices their status as forms of expression.  In the worst case, moreover, the attribution choice may, via signaling, lessen any danger of fraud, as in the one-shot anonymous speaker whose choice to conceal himself may sufficiently warn the audience against placing trust in the message.  If this is true, then the balance—the expressive value weighed against the need to protect against fraud—may tilt more to the protection of the expression.

     This brings Horwtiz eventually to campaign finance regulation and to the question of the Supreme Court’s inconsistency in the view taken of the protections properly afforded anonymous speech.  The Court was kind to Ms. McIntyre, in McIntyre v. Ohio Elections Comm'n (514 U.S. 334 (1995)), but its campaign finance jurisprudence has been friendly to regulatory disclosure schemes.  One could contend that the theory of regulation should be adjusted to the special case of campaign spending.  Or one could reject any such adjustment.  Either way, nothing like a clear vision of the issues—no recognition of their complexity—can be found in Supreme Court jurisprudence.

     In a period of considerable concern about threats to privacy, the privacy of political expression has a small following.  Most policy work is dedicated to improving systems for coerced disclosure of political speech.  Little goes into puzzling over disclosure’s complexities.

     At work in this relaxed posture on compelled disclosure seem to be a few inchoate notions.  One such notion is that contributors and political speakers have a choice, between political action and inaction, and the choice of political activity entails acceptance of its costs, including disclosure.  This is superficial, and worse:  it is a true question-begging proposition.  No better is the belief that politics=public and so all or most political behavior is subject to full public disclosure.  Not even the Supreme Court believes that.  And there is the “sunlight as best disinfectant” school of thought, which holds that disclosure deters corrupt conduct.  Yet few take this too far, since “disclosure only” regulatory programs are disfavored, believed to be woefully inadequate. 

     Now before the Supreme Court, however, are sample defenses of anonymous speech.  The Cato Institute, in its brief in Citizens United, takes its stand in support of anonymity.  It particularly argues against the constricted view that without evidence of likely reprisal or retaliation, disclosure generates little, cognizable constitutional harm.  Cato counters that, in this sphere, a desire for privacy must also be weighed in the balance:

Citizens United contributors may well believe that their message is best delivered by the group, without identifying individuals who contributed.  They may fear reprisal.  They may simply prefer to maintain privacy for themselves and their families, or believe their message will be more readily consumed without disclosure.  All of these rationales are protected by the Constitution.

Br. of Amicus Curiae Cato Institute at 15

     And Cato points out that anonymity may serve the speakers’ expressive purposes—the desire to have the message heard without an immediate discount or rejection based solely on the identity of the speaker:

Citizens are inclined to adopt or reject opinions due in large part to the speaker delivering the message: Keith Olbermann’s opinions are unlikely to sway conservatives, as Rush Limbaugh’s are unlikely to sway liberals.  Likewise, it is entirely foreseeable that a well-known but highly controversial individual may have something valuable to say—but is unable to communicate effectively, other than anonymously, because of his reputation.

Id. 

     On the merits of this particular case, Cato draws the conclusion that where Citizens United has not engaged in “express advocacy” or its “functional equivalent”, there is no state interest in compelled disclosure.  Id. at 13-14, n. 5.  This is not obviously correct.  Congress might well, for certain election-related spending, conclude that disclosure is the fitting regulatory measure; and it may be the only recourse available within existing constitutional constraints.  It does not seem plausible that unless Congress can regulate an activity more extensively—by limiting or even prohibiting an activity—it is unable to impose disclosure requirements.  In fact, we know that this is not so—consider lobbying regulation. 

     But Cato does well to remind that disclosure issues are not to be taken too lightly, and that the threat of retaliation or reprisal cannot be all that we consider when reflecting on the advisability of compelled disclosure.  It is too often the case that the special problems presented by disclosure requirements get lost in other theoretical, policy and regulatory preoccupations.  Too often, the talk is of “just disclosure” and “no big deal”.  Redish and Horwitz show that it is a very big deal and worth thinking about.

Bob Bauer