The anonymity conundrum

In the media coverage of the recent United States Supreme Court case involving organizational spending on political campaigns — the Hillary movie case — there is a hint of a follow-up issue on campaign finance law.

The organizational brain behind the Citizens United case, Indiana attorney James Bogg Jr., promises the next test case will challenge disclosure laws requiring identification of people who petition for state laws, in this case, Washington state’s opponents of same-sex marriage. It is argued that anonymity is required to protect petitioners from harassment by gay-rights advocates. Mr. Bogg is candid about his tactic to whittle away at election disclosure laws. Requiring disclosure, he argues, is punitive.

Before observers start to line up on ideological grounds on this issue, a bit of history is relevant. In the civil rights struggles of the mid-20th century, states’-rights politicians tried to get the membership lists of civil rights and civil liberties organizations. They, too, feared harassment. The United States Supreme Court agreed, holding in several precedential decisions that the freedom of association under the First Amendment includes the freedom of anonymity.

On this issue, right and left meet. Anonymity is a shelter for the innocent, and it is a shield of the mischievous. Justice Ginsburg wrote in favor of anonymity in a Colorado voter ID case in 1999 — it protects people’s right to petition, she stated. Liberals on the Supreme Court opined in a 2008 case that Indiana law requiring voter ID was invidious, though the majority opinion by Justice Stevens, joined by the court’s conservatives, ruled that if a valid state interest (avoiding fraud in that case) was involved, ID laws are constitutional. Republicans are associated with voter ID laws, Democrats against.

The earlier civil rights cases held that anonymity is an historic fundamental First Amendment right that protects persecutions, and protects diversity of opinions. There is no consistency among politicians on the sanctity of anonymity; nor is there among jurisprudes. How the future battles play out on the subject of anonymity — in election cases and in many other situations — is a confounding 21^st-century problem as media expand and the conflicts between transparency and privacy require rational mediation.

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