Why should “Anon.” get all the best lines? Reflections on anonymous political speech

image of anonymity via Concurring Opinions.Given that I have strongly defended anonymous speech on this blog (here and here), Sarah Hinchliff Pearons‘s blogpost Accountability and Anonymity: Rethinking the Value of Anonymous Speech caught my eye. Her basic point is

… not to argue that we should not try to prevent lawsuits designed to stifle free speech. … Instead, I am arguing that in designing solutions to this problem, we must be careful not to place a premium on anonymous speech. While there are certainly circumstances under which anonymity is necessary, those situations are and should be limited. There is a reason why journalists are strongly discouraged from quoting anonymous sources – it prevents accountability. As we transition into an environment where more people than ever have the ability to communicate their ideas and opinions, it is more important than ever that we encourage accountability in the marketplace of ideas. Incentivizing anonymity is certainly not the way to do that.

Similar points and cases are discussed here here, here and here.

On the other hand, but there are times when speech is more important than accountability. Indeed, it is the very fact of the lack of accountability provided by anonymity that can make it a necessary means of dissenting political expression. When dissenters can protect their identities, they can express important critical – even, especially, unpopular – views. In such circumstances, anonymity serves a vital democratic function, confronting intolerance and protecting minorities from majority tyranny. If we must not over-rate anonymous political speech, we must likewise not disparage it simply because it is anonymous. Anonymity allows us to say things that might not otherwise be said; and in that are the seeds both of its odium and of its power. It can ensure that arguments are addressed on their own merits, undistorted by preconceptions (negative or positive) that readers may have about the arguments’ authors. Anonymous publications are not necessarily pusillanimous; and even if they are, they often have good reason to be (whether online or in the real world). As a consequence, facilitating dissent and providing a tool for intellectual honesty are benefits which outweigh the admitted disadvantages of anonymity and which should be reflected in the standards applied by the law, especially in cases of political speech.

Bonus links: Hilary. The Movie has its day before the US Supreme Court.

Update: see also the University of Alabama School of Law Symposium on Speech and Silence in American Law, and Paul Horwitz “Anonymity, Signaling, and Silence as Speech” (recently posted on SSRN).

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