Hidden Voice, Protected Rights: The Legal Legacy of Anonymous Voices

-- By BitaniaEndalkachew - 22 Apr 2025

Section I

In the digital era, issues such as disinformation, echo chambers, and cyberbullying have led to renewed arguments on the need to restrict certain forms of speech, including anonymous speech. However, when looking at any restriction of freedom of expression, we first look to the Constitution. The First Amendment explicitly states that “Congress shall make no law… abridging the freedom of speech, or of the press” . The foundational understanding of protection of freedom of speech, rests on the term “abridging”, which fulfils the role of signifying the weight of the protections owed to the freedom of speech according to our Founders. Abridging, according to Merriam-Webster dictionary, has 4 main definitions: to shorten by omission of words without sacrifice of sense or condense, to shorten in duration or extent, to reduce in scope or diminish, and finally to deprive. Though discussions may vary on which definition is most applicable, Merriam Webster attributes the third definition to the freedom of speech, using the phrase “attempts to abridge the right of free speech” as an example of the definition to reduce in scope or diminish. But what does it look like to diminish the 1st Amendment. We have seen some more blatant attacks. In Near v. Minnesota (1931) the court rejected the concept of prior restraint of the press. In West Virginia State Board of Education v. Barnette (1943) , the court ruled against compelled speech. But one form of speech that has become increasingly under attack is anonymous speech.

Section II

Anonymous speech has been foundational since the advent of the United States. The Federalist Papers is one of the earliest, most famous examples of anonymous speech in America. Alexander Hamilton, James Madison and John Jay wrote these essays under a pseudonym, in hopes that the ideas in the papers will be the topic of discussion rather than their reputations or political positions. But they were not the only ones, thousands of Americans used pseudonyms to write on and comment on the Constitution in this period of time, some using a funny pseudonym, names from literature, or even their occupation to discuss their views on the Constitution. Many, though not all, used these pseudonyms to circumvent political or otherwise negative repercussions for voicing unpopular views. Anonymous speech began as a method to uphold the free dialogue within the marketplace of ideas. This continued after the 18th century and can be seen in more recent Supreme Court cases such as NAACP V. Alabama (1958), and McIntyre v. Ohio Election Commission (1995). In NAACP v. Alabama the court upheld the ability of the NAACP to not disclose its membership list and points to the importance of freedom of association and how “Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs” NAACP was scared of the repercussions of naming those who wanted to learn more about or engage in anti-racism ideas, in an environment that wasn’t friendly to those interests, and the Court agreed. In McIntyre v. Ohio Election Commission, the Supreme even more directly addresses the protection of anonymous speech. In this case, a law prohibiting the distribution of anonymous leaflets was in contention. The Supreme Court overwhelming found for McIntyre arguing that “Anonymity is a shield from the tyranny of the majority... It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation”. Anonymous speech, thus as the core of the first amendment, must be protected.

Section III

In the 21st century, we are facing a contemporary challenge to online anonymity, due to concerns ranging from as the spread of disinformation to increased harassment and abuse. Simultaneously, however, anonymous speech continues to play its critical role in allowing new and unpopular discourse to occur. Whistleblowers and journalists, for example, rely on encrypted platforms to get information and expose unethical and secret practices of powerful institutions including the government. People continue to hide behind pseudonyms in order freely share dissenting opinions through anonymous platforms, such as support for Palestine under an environment where activist are being doxed, jailed and now secretly and swiftly deported for their views. Anonymous speech is a vital part of democratic life. It allows for the expression of dissenting views without punishment, it allows for the exploration of new ideas and increased political discourse, and it allows for a critical lens of the government. So how do we adapt this longstanding protection to the digital era? In the Constitution in Cyberspace, Laurence H. Tribe reckons with the interpretation of the Constitution in a digital world. He urges us instead to use technology as a catalyst to look at the values the Constitution would want us to preserve without assumption in order to see what the values of our Constitution would mandate. One axiom he advocates for in the digital realm is the continued understanding that the Constitution is meant to restrict governmental action only. He pushes people to understand that the Constitution is not meant to restrict private actors and the need for separation between public and private. Secondly, he reaffirms the fact that content of information or value of ideas cannot be regulated by the government. On top of your mind, being an impenetrable area only of your own volition, this right is not given away when those ideas are expressed, and as such should not be up for government censor. The right of the anonymous speaker is certain encapsulated here. There may be discussion on how this should be done and what mechanism technology causes to change to prevent crimes including harassment, including libel, but this does not rest on the circumvention of traditional constitutional protection of anonymous speech.

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