The Right To Speak Incognito

By: Scott Bradner

Two weeks ago the U.S. Supreme Court ruled that anonymous political speech is protected by the First Amendment to the Constitution.

The ruling came in a case brought against an Ohio woman who distributed leaflets, with no name or address of a person or organization, opposing a proposed tax. The court ruled that "Under our Constitution anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and dissent. Anonymity is a shield from the tyranny of the majority."

It also concluded that "the interest in having anonymous works enter the marketplace of ideas unquestionably outweighs any public interest in requiring disclosure as a condition of entry."

It is hard to tell how far the effect of this ruling will extend. The case brought before the court involved a clear example of political speech, but there has been a long history of confusion and litigation in the area of speech protected by the First Amendment. Justice Scalia, writing in dissent, predicted "it may take decades to work out the shape of this newly expanded right-to-speak-incognito, even in the elections field. And in other areas, of course, a whole new boutique of wonderful First Amendment litigation opens its doors."

The question of anonymity has been a hot topic in the Internet community for a while now. There are a number of computers set up around the world to make it possible for individuals to send e-mail which cannot be traced back to the sender. These anonymous remailers forward messages sent to them after first removing or replacing the original return address information.

The use of the remailers can be chained so that a message travels through a number of them before being delivered to the final destination, thus further disguising the sender. Some remailers even delay the messages for a random period of time to make it harder for an outside observer to tell which incoming message corresponds to which outgoing one.

Some people in law enforcement are troubled by the presence of these remailers. This discomfort is heightened by the fact that a major use of the current remailers is to distribute pornography, including material has no First Amendment protection, like child pornography.

Others, and I include myself among them, feel that the ability to speak anonymously is vital in many areas in addition to politics, including support groups for rape victims or those suffering from AIDS, whistle blowers, and the Watergate-like "deep throats" of the future.

Despite these benefits, many would like to outlaw such systems. The Supreme Court's ruling may make this harder to do. If people continue to use the remailers for political discussion, as some do now, the remailers just might fall under the protection of this ruling.

Historically in the U.S., messages of hate and even messages designed to sow discord have been seen as protected by the First Amendment. CNN is now reporting that groups who hold views similar to those accused of being responsible for the horrific destruction in Oklahoma are "proficient users of the Internet."

As a result of this I would expect that some in Congress will want to renew efforts at controlling the content of traffic on the Internet. In as much as these groups espouse political views, any attempts to regulate the use of anonymous remailers as part of any such effort may just have been ruled out of order.

Even though, as it has been put, on the Internet the First Amendment is a local ordinance, it will take a long time to fully understand the global effects of the Court's ruling for the right to be heard but still remain unknown.

Disclaimer: Although the folk at the Harvard Law school will undoubtedly benefit from the boutique of coming litigation, the above are my own observations.