Regulation of Anonymous Speech – Foundational Cases

1. Gov’t can’t regulate anonymity of speech just “because” it is anonymous. (Talley) - p. 295 • Gov’t can’t require individuals who canvass or circulate petitions door-to-door to identify themselves (via permits/badges) even if it has a reasonable interest in preventing fraud. (Watchtower Bible, Buckley v. ACLF) – p. 295 • Law requiring those who distribute material pertaining to ballot issues to identify themselves is not justified by state interests in an informed electorate or prevention of fraud/libel (McIntyre v. OEC) • Important interests in protecting anonymity led to Court decisions: • Induces people to speak, protects from retaliation/harassment, allows us to evaluate ideas on their own merit, protect authorial autonomy Regulation of Anonymous Speech – Foundational Cases

2. Ohio law required all political parties to report names/addresses of contributors or recipients of campaign disbursements. SWP challenged law • Buckley v. Valeo – upheld FECA disclosure requirements • 3 interests – inform electorate re candidates interests/allegiance, deterrence of corruption & enforcement of contribution limitations • Buckley recognized a “minor party exception” to the disclosure requirement because 3 interests weren’t as well served by disclosure of minor party info • Test (p. 298) – Does evidence show a “reasonable probability that the compelled disclosure of party’s contributors’ names will subject them to threats, harassment, or reprisals from either Government officials or private parties.” • Brown extends Buckley “minor party exception” to disclosures re disbursements. • Why is anonymity important here? • What evidence did SWP have to satisfy the Buckley/Brown test? Brown v. Socialist Workers Party

3. FECA restricted campaign contributions/expenditures and certain kinds of election ads • Those persons expressly advocating the election/defeat of a candidate must disclose names to FEC • Only applied to ads advocating election/defeat – not to “issue ads” containing no direct advocacy about candidates • Rationale – want to encourage people to speak out (even anonymously) about political issues but integrity of electoral process needs identification of persons advocating election/defeat • BCRA extended identification requirement to “electioneering communications” • Broadcast, cable, satellite communications that “refer” to a candidate within 30/60 days of an election • Identities of anyone making contributions of > $1,000 to aid in the disbursements of electioneering communications must be disclosed to the FEC Regulation of Anonymous Speech – Election Related Speech & Federal Law

4. SCT upheld disclosure requirements in BCRA • Noted problems associated with anonymous election-related speech (“sham” issue ads, misleading ads that seemingly have broad public support but are really interest-group driven) • Compelling disclosure does not prohibit anyone from speaking • State interests (informing electorate, deterring corruption/appearance of corruption and enforcing other campaign laws)were sufficient to justify the requirement of disclosure. • Is McConnell consistent with McIntyre? • Wisconsin Right to Life – SCT said electioneering provision was unconstitutional as applied to this group • Does WRL substantially narrow McConnell? Not clear BUT . . . • SCT reaffirmed legality of disclosure requirements generally in Citizens United McConnell v. FEC

5. Citizens requested the names of the signers of a petition to call a referendum to repeal a law expanding rights of same-sex partners under the Washington State Public Records Act. The Washington Secretary of State, consistent with state law, indicated that he would release the names. The group that circulated the petition sought an injunction blocking release of the information, claiming right to anonymity and possible harassment in particular case. SCT rejected first argument and said petition signers could get injunction if had actual proof of harassment, which they didn’t have. Why do you think the Court treated anonymity differently here than in Brown? Anonymity and Referenda Petitions

6. To what extent do the concerns raised about anonymous speech in the election-related context extend to other areas of speech regulation – i.e., the Internet? • Example: • It is a crime to knowingly initiate an anonymous Internet communication with the intent to annoy, abuse, threaten, or harass any person who receives the communication. Is the Internet more conducive to problems with anonymous speech? Even so are there problems with the new law? Anonymous Speech and the Internet