In my book, I explain the robust, yet not absolute protections U.S. courts offer anonymous speech. Those safeguards originated from a dispute over civil rights activist Manuel Talley’s March 22, 1958, distribution of handbills outside the A&D Market in Los Angeles. These handbills called on the boycott of the shop, claiming that the manufacturer sold products that were not made from racial minorities.
In violation of the Los Angeles ordinance, handbills must include author’s name. Talley was taken into custody and charged. Talley claimed that leaflets distributed by the market did not contain the name of the author. The judge convicted Talley for a misdemeanor, but he did not accept this argument. He also fined Talley. Although the California Court of Appeal upheld the verdict, two judges had difficulty reconciling the fine and a U.S. Supreme Court decision that stopped Alabama officials from forcing the NAACP’s disclosure of its membership lists.
American Civil Liberties Union’s southern California chapter took up Talley’s cause and persuaded the US Supreme Court of certiorari. According to its brief, ACLU tracked the history of anonymity from Renaissance and Reformation to present day periodicals like The New York Times. Writers faced “severe penalities” in these times. Foreign AffairsThe spokesman for the group used pseudonyms all too often. Social reformers have the right to anonymity, according to lawyers. According to them, “People often dislike change and respond with hostile resistance.” “For this reason, ideas which tamper with deep-rooted prejudices may expect to encounter serious—and even violent—opposition. To discourage these opinions is easiest to make them resentful.
The NAACP was unable to argue anonymous speech rights because of this. Lewis Publishing Co. v. MorganThe Supreme Court upheld a federal law requiring publications to be sent by mail to include a signed statement, including names and other details, in the 1913 case of. Justice Felix Frankfurter asked Hugh R. Manes (a Talley lawyer) whether he believed that the federal law requiring publications to be sent by mail was valid. LewisThis is a challenge for his argument.
Manes replied, “I tell, Your Honor that we don’t contend that the anonymity right is an unlimited rights by any means.” “We believe that in certain circumstances and situations,. . . Anonymity can be restricted by the state. It cannot be an unrestricted right to suppress anonymity, or to deny anonymity in the same way that is being done here. LewisManes explained that it involved “a commercial profit making venture that is very different to our particular leaflet.”
Frankfurter did not seem to be satisfied by this. Frankfurter was not satisfied. Common SenseFrankfurter thought that it was an issue of a periodical and wanted to send it by mail.” Frankfurter added, “He would under the circumstances.” LewisAs I understood it, the owner of his newspaper must be disclosed in this case. Manes pointed to the fact that disclosing who the publisher and owner of the publication are not always the same as disclosing who the author is. Frankfurter said that they are the people “who really own the show”
His client won despite some of the justices appearing skeptical about Manes’s argument. In a 6–3 ruling, the Supreme Court struck down the Los Angeles ordinance as unconstitutional. Justice Hugo Black, a First Amendment advocate and stalwart, noted in the majority opinion that this was based on a 1938 case. Lovell v. GriffinA Georgia ordinance that required the issuance of a license for distribution was struck down by the Court. Black stated that the Los Angeles ordinance required identification. This would restrict the freedom to share information and, therefore, freedom of expression.
In his opinion, the Supreme Court provided the first comprehensive discussion about the historical basis for anonymous speech protection. Black stated that “Before Revolutionary War, colonial patriots had often to conceal the authorship of their distribution of literature which could easily have brought them down on English-controlled court prosecutions.” Black wrote that the Letters of Junius were penned around the same time. The identity of the author of these letters is not known to date. The Federalist Papers were also published with fictitious names. They were written to support the adoption of our Constitution. The truth is that sometimes anonymity has been used to the best constructive ends. Black argued that the NAACP won recent victories on the grounds of “identification” and fear of reprisal could deter peaceful discussion of important public issues. He concluded that the Los Angeles ordinance is subject to the same problem.
Justices were critical of Black’s statements concerning anonymity. Black had circulated his draft opinion shortly after. Frankfurter then sent an email to his coworkers in which he stated that he would write a dissident opinion if another justice did not. “I cannot approve of an opinion which doesn’t distinguish the invalidation this legislation against anonymity with the large body of enactments that require disclosure in a subject so closely touching the protections of free discussion and the ‘fear of reprisal’, I’m sure. Frankfurter wrote about the exercise of the political voting franchise.
Justice Clark dissents, along with Frankfurter and Whittaker. Clark noted that Los Angeles might have had an acceptable reason to require identification, like combatting false advertisements. He argued that Talley did not show that he could be identified on handbills. “I stand second to none in supporting Talley’s right of free speech—but not his freedom of anonymity,” Clark wrote. The Constitution doesn’t allow anonymous speech. Clark mentioned state election laws which require that campaign materials be identified by the author. He wrote, “The fact that many of these statutes are targeted at elections and lobbying as well as the mails makes them restraint no less palatable than their abuses to prevent more deleterious to our public interest, or the materials they provide for it less effective,”
Talley Establish the legal basis for robust anonymity protections. This would allow the Supreme Court’s to apply it to campaign literature author names, state laws requiring petition circulators and door-to–door canvassers registration with local governments, as well as author name requirements. Although the Court approves some disclosure requirements for campaign finance, it isn’t absolute.
Tomorrow’s post will discuss how courts have used these First Amendment anonymity safeguards for the Internet.