Anonymous Expression: It Helped To Make America

The First Amendment to the United States Constitution is one of the heroic marvels of human freedom. Written carefully by one of America’s greatest legal minds, James Madison, and widely approved by the First Congress and the original 13 States, its words toll out as a celebration of liberation and a warning to would-be tyrants everywhere, particular in terms of its speech and press freedom provisions:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

A lot of people – smart and educated people – do not know that until the establishment of the 14^th Amendment to the Constitution in the late 1860’s, the First Amendment’s limitations on government only applied to the national level, not the state and local levels. Well up to and during the Civil War, states, counties and towns routinely censored newspapers and other media for all sorts of local reasons, from discouraging slave rebellions to preserving the religious reputations of major leaders of faith, both living and dead. But with the 14^th Amendment’s provisions requiring states to obey and incorporate the 1^st Amendment, that issue has been long settled, at least in law.

Today, with the explosion of Internet use, the right to express oneself through publishing has moved to the forefront. Before the Web the common person did not have the means, or the interest, to establish and publish a newspaper. Until the 1990’s, the concept of free expression for most citizens strictly centered around speech, not press. But the online world has utterly transformed that equation.

One of the most interesting topics concerning free expression today, not just in

China is cracking down on anonymous writers; should we?

the United States but also in other huge Internet markets like India, China and Brazil, is the question of anonymous online expression/publication. It's moved to the front of civil rights controversy. Over the past two years, both repressive governments and regimes considered to be relatively free have passed laws, along with corporations that run major websites, limiting or barring anonymous online publication and expression. Additionally, Google and the Huffington Post have moved towards a “real name” policy, and this has gotten a lot of Americans upset, and for good reason.

With the advent of the web and especially the tween and teen embracing of it, anonymous publishing has gotten a bad name. Today it seems only cowards and bullies post and publish without identifying themselves. These people seek to use their words as weapons and not bear any responsibility, legal, moral, or otherwise, for their ramifications. And yes, as a parent and educator, I will admit that online bullying is a problem and one that needs to be challenged with increased education and sensitivity training. Words hurt, they do; but words also allow us to live, breathe and change.

Many of my readers may be surprised to learn that, in American law, the right to anonymous publication and expression is not only a longstanding, enshrined principle, but that much of the nation’s laws and identity is wrapped up in it.

First, we need to look at the history. In the years leading up to the American Revolution, pamphleteers and writers by the thousands engaged in rigorous, sometimes downright uncouth, rowdy arguments on core issues. Did the British Parliament have the right to tax the colonists without colonial representation in Parliament? Do Kings have the right to rule merely due to their Divinely ordained birth? Can commoners and church authorities alike interpret the Bible? How should the people of Massachusetts handle confrontations with British tax collectors? All of these questions were posed in the years leading up to 1776, and all – most, in fact – were addressed by anonymous writers and publishers. Benjamin Franklin was Silence Dogood, while other future founders used more haughty-sounding, Latin-based names like “Publius” and “Brutus”.

Today, the most respected, written legal commentary on the United States Constitution, The Federalist Papers, is required reading from high school history classes to law schools. The Federalist Papers were written in the late 1780’s by John Jay, Alexander Hamilton and James Madison in order to convince the American people to approve the then-proposed U.S. Constitution. These works have been utilized in thousands of court cases on the state and national level and cited as high authority in many of the United States Supreme Court’s most famous decisions. And what is most interesting, and important, is that when they were first published in newspapers not a single commentary contained an actual name. All were first published anonymously, every one. Jay, Hamilton and Madison - all knew that if they affixed their names to their works, reputations and petty politics might get in the way of the expression and debate over the most noble of ideas.

In 1995 the United States Supreme Court citied such historical examples in the landmark case McIntyre v. Ohio Elections Commission. In that case the Highest Court in the Land was faced with a controversy that intersected several points of First Amendment law. The case originated from an anonymous publication emerging out of a hotly contested school tax election in the 1980’s. Ohio law required all such publications to contain an author’s name, but this one didn’t. Ohio fined and the defendant appealed – and won.

In the decision, the Supreme Court stood up strongly for the First Amendment and its creation of a “marketplace for ideas.” Specifically the Court stated:

"The interest in having anonymous works enter the marketplace of ideas unquestionably outweighs any public interest in requiring disclosure as a condition of entry.”

Further backing this concept, the court directly addressed the controversy of anonymity:

“Anonymity thereby provides a way for a writer who may be personally unpopular to ensure that readers will not prejudge her message simply because they do not like its proponent.”

So to all of the would-be opponents of anonymous speech I say, stop and withdraw. Leave this sacred and recognized mode of expression alone. Anonymous expression made this nation what it is today, and it is worth preserving, and ought to be rightfully fêted.