CASES: Does Freedom of Speech Include a Right to Anonymous Speech?

ACLU v. Miller, Northern District, Georgia, ACTION 1:96-cv-2475-MHS

In ACLU v. Miller, the American Civil Liberties Union got an injunction against the enforcement of a Georgia statute that prohibited a person from falsely identifying herself while sending e-mail, posting on the Internet, and more (one of the problems with the statute was that it was too vague). The court ruled it was appropriate to give an injunction, among other reasons, when there was the potential for chilling free expression. The court agreed with the state that its purpose in enacting the statute--preventing fraud--was a compelling state interest, but decided against the state because the statute was not narrowly-enough tailored to its purpose.

Which of these statutes should be enacted?

A ban on all anonymous email
A ban on all anonymous Internet postings
A ban on all anonymous postings mentioning a named individual or organization
A ban on all anonymous postings of photographs of identifiable persons

Some other important constitutional cases seem to establish a constitutional right to anonymous speech:

Talley v. California, 362 U.S. 60 (1960)

This case dealt with a Los Angeles city ordinance which required distributors of leaflets to fully identify themselves and provide a mailing address. A group called the National Consumers Mobilization urged a boycott of certain merchants because of their "discriminatory" policies. The group disbursed handbills which did not meet the requirements of the ordinance governing anonymous leaflets and the person responsible was subsequently arrested and fined. The Supreme Court struck down the ordinance and held that it unduly abridged the freedom of speech guaranteed by the First Amendment. The Court reasoned that the ability to anonymously distribute ideas goes to the core of free speech. The Court stated that anonymity has furthered freedom of expression throughout American history by allowing persecuted individuals and groups to disseminate their viewpoints.

McIntyre v. Ohio Elections Commission, Syllabus, US Supreme Court, cert to Supreme Court of Ohio, No. 93-986, 1995

This is another case dealing with anonymously distributed pamphlets and an attempt by government officials to require identification on all such material. A pamphleteer distributed anonymous leaflets opposing a school tax levy and was subsequently fined by the Ohio Elections Committee for violating a statue requiring self-identification. The Court of Common Pleas reversed the decision to impose a fine. The Court of Appeals reinstated the fine and the Ohio Supreme Court affirmed the decision. Finally, the Supreme Court of the United States struck down the fine, on reasoning similar to that in Tally. The Court held that the ability to publish anonymously is guaranteed under the First Amendment unless a prevailing governmental interest overrides concerns for liberty.

How do you think the benefits that flow from the protection of speech in the Talley case compare with the dangers of fraud and libel that come with anonymity?

Protect the freedom to speak anonymously at all costs
Force individuals and organizations to identify themselves whenever they speak
Balance on a case-by-case basis, leaning in favor of anonymous speech
Balance on a case-by-case basis, leaning in favor of identification

Are the concerns that motivated the Supreme Court in McIntyre equally applicable to cyberspace?


Introduction - Course Schedule - Current Topics - Library - Class Directory
Faculty - Discussion Groups - Lecture Hall - Cybercourse Home - Help