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Tuesday, March 17, 2009

Anonymity, Signaling, and Silence as Speech

Looking for something to read over March break?  Here's my latest, a short paper called Anonymity, Signaling, and Silence as Speech.  It's a reply to an interesting symposium paper by Professor Martin Redish of Northwestern.  And here's the abstract:

This short article responds to a paper delivered by Professor Martin Redish at a symposium on Speech and Silence in American Law at the University of Alabama School of Law; the symposium proceedings will be published by Cambridge University Press. Professor Redish's paper argues for the elimination of First Amendment protection for expressive anonymity in certain cases involving political fraud.

This response offers both clarifications and criticisms of Professor Redish's argument. It argues by way of clarification that the general category of "anonymity" is too broad to support useful analysis. Rather, we must consider the implications for Professor Redish's argument of at least two categories of speech: anonymous and pseudonymous speech. I show that even if we accept Professor Redish's account of the dangers of anonymous politically fraudulent speech, our concerns and prescriptions will vary greatly depending on what sort of "anonymous" speech we are talking about. Drawing on signaling theory, this response also offers a more critical treatment of Professor Redish's argument for the prohibition of some forms of anonymous speech. Signaling theory suggests that anonymous speech is not accurately characterized as part of the right of silence; instead, as an attributional decision that sends important signals about the reliability of the speech and the speaker, the choice of anonymity in fact constitutes a highly expressive form of speech. The signaling function of these attribution choices also suggests that Professor Redish's concerns about the misleading nature of anonymous politically fraudulent speech, and his recommendation that we curtail protection for this form of speech, are overstated.

The signaling-based account of anonymity as speech has two subsidiary implications. First, contrary to Professor Redish's suggestion, it is impossible to disaggregate the rights of expressive and associational anonymity. Second, this account supports the argument of many writers that the Supreme Court ought to strongly reconsider its tangled jurisprudence concerning the permissibility of mandatory disclosure rules in the campaign finance laws, which is in tension with what the Court has written about anonymous speech in other contexts.

As always, comments are welcome.  Although other papers have mentioned the intersection between signaling theory and the First Amendment, I think this paper may do a more thorough job of looking at that connection and applying it.  It should be of interest to First Amendment folks, election law folks, signaling theory folks, and people who are interested in the role of anonymity and pseudonymity in the First Amendment.

Posted by Paul Horwitz on March 17, 2009 at 10:07 AM in Paul Horwitz | Permalink


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I enjoyed reading your piece, especially because learning about signaling theory was on my agenda. One of your key arguments is that the decision to use anonymous (or pseudonymous) speech signals to recipients that the speaker is more likely to be unreliable etc. b/c it alerts the recipient that the speaker is unwilling to incur any costs for his speech. (And, thus, the choice of anonymity is a form of speech.) Given the wide range of reasons for anonymity, however, (which you note), I question whether any particular meaning is signaled, i.e. whether the recipient can draw any valid conclusions about speakers' relative willingness to "incur costs," based on their respective identity-disclosure choice.
That choice may relate to a speaker's consistency of public-private values, risk aversion, residential subculture, wealth, etc. If one speaker incurs 0 cost (and some benefits) for self-identification (and knows that, when deciding), and another (accurately predicts that he) would incur very high costs for self-identification, when both are saying the very same thing in the same venue (e.g., a pro-same-sex marriage post), then the recipient who finds the first speaker's post more trustworthy is relying on a faulty "signal." You've helpfully considered so many variations already (and not exactly sure where my points leads!), but I wonder if you (or others) have taken this into account. I'm a novice at this, but very interested (and appreciative that you posted this during my spring break!)

Posted by: Mary Jean Dolan | Mar 18, 2009 2:02:46 PM

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