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Monday, November 02, 2009

Speech and the Identity Crisis

In terms of assessing speech, it is often helpful for audiences to know who is relaying a message and what, or who, might be influencing the content of the message.  But do audiences have a right to know who is sponsoring or otherwise influencing the information they are receiving?  Put negatively,when does the First Amendment prohibit the state from forcing speakers to disclose their identities or the identities of those who may have influenced their messages?  It may overstate matters to suggest that free speech has an "identity crisis."  But identity and sourcing issues seem to be arising in an increasing number of contexts.  Consider the following examples:

  • Proponents of same-sex marriage in Washington state recently sought to force disclosure of the names of those who signed petitions to place the issue of benefits for same-sex partners on the ballot.  (A Ninth Circuit order to disclose the names was recently stayed by the Supreme Court.) 
  • The FCC recently created new guidelines that require bloggers and others who publish on the Web to disclose any "material connections" they might have with sellers of products or services.
  • After the tea party protests and health care town hall events this summer, proposals were again made to regulate so-called "astroturfing."  One proposal was to require disclosure of sponsorship or support for these events under lobbying laws.    
  • Legislators and law enforcement in some states have stepped up efforts to regulate "flogs," bogus product reviews, and other forms of online deception.   
  • Congress has long prohibited the use of federal funds for propaganda purposes.  Notwithstanding this prohibition, in recent years there have been a variety of bogus news accounts and other sourcing problems involving government departments and officials.

There are other examples, such as "ghost-writing" of scientific studies and various bogus lobbying efforts.  Some of what we might call speech-sourcing difficulties arise from, or may be exacerbated by, Web-based communication.  But sourcing issues are hardly a new concern.  Anonymous speech,deceptive trade practices, and government propaganda have all been around for a very long time. 

The law of disclosure or speech sourcing is not particularly well developed.  In general terms, the First Amendment provides some breathing space for anonymous speech.  Associational rights also prohibit the state from mandating disclosure in some circumstances, as when disclosure might lead to violence against a particular group.  There is a limited right not to be compelled by the state to speak.  And the press possesses a qualified privilege relating to the confidentiality of its sources.  Despite this cluster of rights, mandatory disclosure of speakers and sources has long been typical in some areas, such as campaign finance and deceptive trade laws.  And the spending prohibition relating to government proaganda is longstanding.  As more trade moves online and political records are retained and made publicly available, courts and legislatures will increasingly have to confront a difficult balancing of anonymity, privacy, transparency, and informational authenticity interests.  I may develop a paper on this subject in the relatively near future.  Some prelimimary thoughts on these issues, in the specific context of the Washington state referendum, after the jump.


The move to force disclosure of petition-signers' identities pits the state's interests in transparency and fraud-detection against the signers' interest, if any, in participating in the referendum process anonymously.  Asssuming, as the courts have, that signing a petition constitutes speech, the question in the referendum context may boil down to whether petition-signers have any expectation of anonymity when they participate in the referendum process.  The district court and Ninth Circuit both identified this as an issue of first impression; but they disagreed on the merits.  The district court applied strict scrutiny to the disclosure law, which it viewed as a direct regulation of political speech.  The Ninth Circuit applied intermeditate scrutiny; it disagreed with the district court's conclusion that the speech was "anonymous political speech."   

In the background, of course, is the fact that the identities of the petition-signers, if disclosed, would immediately be broadcast on the Web.  Proponents of disclosure argue that this would further critical democratic interests.  They argue that civil rights causes sometimes require "shaming" others into supporting the cause and that disclosure would facilitate an honest and transparent debate regarding the merits of the measure.  Not surprisingly, the state does not rely on the "shaming" argument.  As a factual matter, petition-signers do not necessarily support the measure; the question at the petition stage is whether it ought to be on the ballot.  In any event, the state obviously cannot justify a law on the ground that it facilitates shaming.  Transparent debate is a much weightier democratic value.  But why does one need to know the identity of each individual participant to have a meaningful debate?  Interest groups square off in the political arena all the time without having such knowledge.  As a practical matter, moreover, it is becoming increasingly difficult to enforce identity- and source-disclosure requirements.  If the state has a substantial or compelling interest in this context, it is the narrower, but important, one of ensuring that the referendum machinery functions properly.  The Supreme Court may have to decide whether that intererst outweighs any interest petition-singers may have in remaining anonymous.


Posted by Tim Zick on November 2, 2009 at 10:35 AM in Constitutional thoughts, First Amendment | Permalink


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Your comments clarify the various ways in which we might view the act of signing a petition. Im not sure I agree with Eugene that there is no speech in this context (only a legally operative act). Thats a question that is somewhat unique to the referendum context, and certainly one I would have to grapple with in the paper. But Im actually more interested in what purposes disclosure might serve in the referendum and other contexts. Looking at this from the audiences perspective, rather than the petition-signers, what is gained from knowing the identity of the speaker or the influences behind the speech? In the deceptive trade context, transparency as to source deters fraud and provides a measure of authenticity. In the government speech context, basic democratic principles are served by disclosure. In the campaign finance context, anti-corruption and transparency interests are weighty. What of the referendum context? I understand you have privacy concerns with regard to the speakers. And the state has an interest in ensuring that the signatures are valid and the process is free from corruption. Is there any plausible argument that audience interests compel or at least support disclosure? We do not allow the legislative process to proceed in secrecy, or allow legislators to vote without accountability. If signing a petition is speech, then isnt the petition process part of a public debate? The debate is taking place in a quasi-legislative arena. In that context, doesnt the public audience have some interest is knowing the identities of those who are actively engaged in the debate? Or is the audiences interest, if any, satisfied so long as it has information regarding the merits of the positions taken by proponents and opponents of the measure? I suppose Im wondering whether there is anything special about the referendum context that supports source or identity disclosure (clearly the principle cannot be so broad as to endanger all forms of anonymous speech). Im not suggesting the balance then tips in favor of disclosure. Rather, Im looking for a full accounting of the interests being balanced in the referendum context. Perhaps this requires that we attempt to characterize petition-signers as speakers, legislators, or some hybrid?

At 01:00 AM 11/3/2009, you wrote:
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Posted by: Tim Zick | Nov 3, 2009 10:16:39 AM

Thanks for this terrific post. It seems to me that with respect to the Washington ballot case in particula it's worth clearly distinguishing between three different possible arguments that have been made, or might be made, for releasing the names of the signers.

(1) The petition signatures are not anonymous speech under the First Amendment because they are not instances of "speech" covered by the First Amendment at all, but rather exercises of government power or law-making that are, as such, not protected by the speech clause. This, as I understand it, is the position Eugene Volokh has been taking in his posts on this topic in the Volokh Conspiracy. (e.g., http://volokh.com/2009/10/19/ninth-circuit-overturns-preliminary-injunction-restraining-release-of-names-of-anti-domestic-partnership-petition-signers-in-washington-state/). This doesn't mean that proponents of this argument think it's good policy to deprive petition signers of anonymity, just that whether it's good or bad policy, it's not unconstitutional. In short, while citizens are protected by the First Amendment when they advocate, or debate, how power should be exercised, that protection disappears where their speech ceases simply to constitute that debate about what to do with power and instead counts as an exercise of that public power.

(2) Alternatively, one might conclude that, while signing a petition of the kind at issue in Washington is covered by the First Amendment, it's not anonymous speech. So the heightened scrutiny provided to anonymous speech in cases like McIntyre v. Ohio Elections Commission and Watchtower Bible and Tract Society v. Stratton -- and courts instead analyze the restriction the way they would any other conten-neutral restriction. This, as you noted, is what the Ninth Circuit found, concluding the petitioner signatures were not anonymous because the signature gathering took place in public, because one signatory could see the names of other signatories, and because the State makes no promise of confidentiality and carries out a verification process that is itself open to observation by opponents and proponents of the ballot.

(3) Finally. one might conclude instead that the signing of a petition is not only speech covered by the First Amendment, it is also anonymous speech deserving of the added protection for anonymity that applies in these circumstances -- but that in this case, that balance should be struck in favor of the gov't. One problem here is that I don't think the Supreme Court or lower courts are entirely sure what that added protection should consist in and when it should apply. In this sense, the "identity crisis" you talk about in your post is not a new problem. If it were simply the case that the anonymity of an anonymous speaker were protected by strict scrutiny that is "strict in theory, fatal in fact" then the analysis would be simple as soon as one concluded the speech was anonymous. But, as you note in your post, that's not what the Court's been doing in anonymous speech cases -- where it's provided some breathing space, but has left room for state-compelled disclosure in a number of important circumstances. It's also not been entirely clear about why anonymous speech gets heightened protection. It's sometimes suggested that anonymity is a part of a work's content and hinted that it disclosure rules should be as suspect as other content-based regulations of speech (as it did in McIntrye, 342: "an author's decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment."). At other times, it's emphasized the role that anonymity plays in protecting unpopular political speech. But it also made clear, again in McIntyre, that one the speaker need not be voicing unconventional or unpopular views, or fear retaliation or persecution, to demand constitutionally-shielded anonymity: One may be motivated not by such fear but "merely by a desire to preserve as much of one's privacy as possible." So when the Court balances state interests (for example, in transparency, or public confidence, or preventing fraud) against First Amendment anonymity interests, some difficulty arises because it's never been entirely clear what the latter are -- or whether the different types of anonymity interests -- e.g., (1) a general discomfort with others knowing about one's petition-signing choices, vs (2) fear of shaming vs. (3) fear of some Web-users actually retaliating through attacks on person or property -- should lead to different First Amendment outcomes (even if the government interest in all three cases were the same).

I haven't really had the time to sit down and think about these arguments in depth and am grateful for your post because it's made me think about them some more in light of your interesting comments. I'm also grateful for the questions about the extent to which the Washington ballot argument is part of a larger struggle over anonymity and First Amendment rights (including in the debates over cyberbullying that had center stage in the Concurring Opinions recent Symposium on Danielle Citron's article, Cyber Civil Rights)

But it seems to me that the Ninth Circuit's conclusion in arg (2) above is unconvincing for some of the same reasons that courts (including the Supreme Court) have been unconvincing when assuming (e.g, in some Fourth Amendment cases) that any time one shares information with a third party or public actor one thereby eliminates all reasonable expectation of privacy in it. For example, it's completely understandable that a person might sign a petition knowing that a few other petition writers might momentarily see his signature as they add their own, but still feel that it's unlikely that the rest of the world will know (and also unlikely that even the other petition signatories will remember). Nor should my willingness to have my identity as a signatory known to public officials charged with assuring a petition's accuracy necessarily be taken to include an expectation that everyone else will get a copy of the list for their own (perhaps more disturbing) purposes -- just as might completely understand why police or TSA officials will be reviewing video footage from an airport security line on which I happen to be standing, but very disturbed if such video footage was leaked and placed on YouTube for anybody interested to watch my idle conversation with my family.

I'm less sure for now what to think of the other arguments -- although, at first glance, I'm skeptical of the argument that any citizen speech that is part of a "legally operative act" must thereby be excluded from the First Amendment's coverage. In any case, I look forward to thinking about this more in the coming months and very much look forward to reading your upcoming paper on this (if you decide to write one) and to other blog postings.

Posted by: Marc Blitz | Nov 3, 2009 1:00:27 AM


Thanks for your thoughts. Yes, many of the interests that support disclosure, whether in the campaign finance, referendum, or government speech context, relate to transparency and fair process interests. Leaving aside the particulars of the Washington state referendum laws, its certainly an interesting question whether those who sign petitions are more akin to voters or legislators. In one sense they are supporting a legislative measure, much as legislators sponsors bills. (Although that analogy applies more clearly to the group backing the measure, I suppose.) Or perhaps we ought to view petition-signers not as sponsors, but as legislators who are voting for the measure. In either case, the petition-signer would seem to have no right to anonymity. But youre right that voters choices remain private, unless they consent to disclosure. So if petition-signers are more akin to ordinary voters, perhaps they have some interest in anonymity. The Ninth Circuit held that signatories, who were participating in a public referendum process, were not engaged in anonymous political speech. The court saw them more as legislators than voters, one might say. I dont think NAACP v. Alabama is applicable here; no organization is claiming that disclosure will lead to the sort of violence that was present in that case (although there have been allegations of harassment and a few threats). I think this is a tough case, in part because of the Web. There may be less restrictive ways to ensure the transparency and legitimacy of the referendum process than disclosing all of the names. But Im not sure the state is required to use them.

At 03:45 PM 11/2/2009, you wrote:
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Posted by: Tim Zick | Nov 2, 2009 8:03:30 PM


A few thoughts - There is some value in voter transparency when a politician votes for or against an important measure because it lets the populace decide whether they should support the politician in questions or the distinguished competition. The Supreme Court has also upheld laws that provide transparency regarding, and limits on, the amount of money that a particular group can give a candidate, because knowing who funds a candidate can be an important part of knowing whether that candidate is likely to promote programs and services you value but not spending on programs and services that you don't.

On the other hand, there is no transparency, other than the voter's willingness to share in personal disclosures or exit polss, regarding who is voting for a particular candidate on election day. This is done in part to prevent coercion of voters before an election, or discouragement of voters who made "bad" choices from voting again in the next election. The government makes sure you are qualified to vote, but isn't supposed to interject itself into how you vote.

Assuming there is a value in holding representatives accountable by disclosing what they vote for/against and who pays for them to campaign, are we missing an important input into a politician if we don't have clarity on who is voting for them? If that's the case, we might also think it important to know who votes in favor of a particular ballot initiative.

Taking that second step, however, treats the voters like the politician we want to "hold responsible." The Supreme Court was unwilling to allow a state to require a disclosure of NAACP membership roles. NAACP v. Alabama. The Court concluded that privacy was an essential part of the freedom of association. Without privacy, members might be attacked, fired, or otherwise punished by persons who were hostile to the NAACP. The Court decided that the right of individuals to freely associate trumped the ability of the state of Alabama to figure out whether the NAACP was operating in the state in violation of a disclosure requirement imposed on organizations headquartered in other states.

It may or may not be specious for those who signed the ballot initiative to think they will be exposed to coercive social pressure and stigma if their names are revealed. It may also be the case that NAACP v. Alabama isn't a good fit, either because the voters in this case are assumed to be on the wrong side of the civil rights debate, or because the voter disclosure cases are not about protecting an associational or any other speech right.

Perhaps they should be thought of as protecting a right not to speak, which is a part of both First Amendment law and privacy law. In the defamation context, courts tend to find less privacy protection for individuals who have injected themselves into a public debate, and thus require a heightened showing of malice to bring a successful defamation claim. Maybe something can be done with the question of what it takes to inject oneself into a debate, and when that should turn you from a private figure to a public figure, one that we hold "accountable" for a public stance, for lack of a better term.

I think it would be a mistake to make people who voted for Nader or Bush or Obama disclose that to the public, because that choice can be both principled and unpopular, or even costly, in certain circumstances. I'm curious as to whether we should think differently about voters who put an initiative on the ballot, or about individuals who give money to a cause without speaking out about the cause more directly.

Posted by: Jake Linford | Nov 2, 2009 3:45:38 PM

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