The right to anonymity

The United States Supreme Court continues to debate the dimensions and applications of the freedom of anonymity. In mid-20th century cases dealing with civil rights and loyalty questions, the high court ruled that the First Amendment’s freedom of association includes a freedom of anonymity. Membership lists thus were protected from scrutiny by antagonistic political enemies.

In the new century, the Supreme Court has dealt variously with similar issues. In a Colorado case, it struck down a requirement for ID tags for legislative petitioners. Later, in an Ohio case dealing with voter ID cards, it upheld a state law despite claims that it violated voters’ rights to anonymity. Last week, a Washington state case dealt with a legislative referendum challenging the state’s same-sex marriage law, Doe v. Reed. Signatories there claimed that disclosing their names would lead to harassment, intimidation and reprisals; thus, they claimed, disclosure of their identities violated their First Amendment rights.

With one dissenting vote (Clarence Thomas), and multiple opinions associating with Chief Justice Roberts’s majority opinion, the court held last week that there was no First Amendment violation in the Washington law itself. There might be, the court held, in its operation and application, but not on the mere face of it. The state has the right to root out voting fraud, mistakes and invalid signatures and to promote transparency in the electoral process through its Public Records Act. The general power of the secretary of State to fulfill this function was not enough, apparently.

Justice Antonin Scalia thought the potential for harassment claimed by the voters in Washington “is a price our people have traditionally been willing to pay for self-governance.” Democracy is doomed, he posited, if people don’t have the civic courage to go public with their politics.

Only Justice Thomas recalled and respected the earlier Supreme Court cases that protected anonymity to guard against chilling citizens’ constitutional rights. In his view, and in the view of many privacy organizations that filed amicus briefs supporting Thomas’s views, the historic precedent protecting the privacy of associations is required by the First Amendment. One who agrees can only hope that the eight justices who took pains to point out that they would vote differently if it were demonstrated that disclosure did in fact injure voters will support the claims made when and if that evidence is established. If it isn’t too late.

Meanwhile, the full meaning and breadth of the right of anonymity remains ambiguous, despite judicial precedents that anonymity is a core First Amendment value.


Ronald Goldfarb, a Washington attorney, author and literary agent, is writing a book on the subject of anonymity.