Abstract

http://ssrn.com/abstract=1361225
 


 



Anonymity, Signaling, and Silence as Speech


Paul Horwitz


University of Alabama School of Law

March 16, 2009


Abstract:     
This short article responds to a paper delivered by Professor Martin Redish at a symposium on Speech and Silence in American Law at the University of Alabama School of Law; the symposium proceedings will be published by Cambridge University Press. Professor Redish's paper argues for the elimination of First Amendment protection for expressive anonymity in certain cases involving political fraud.

This response offers both clarifications and criticisms of Professor Redish's argument. It argues by way of clarification that the general category of "anonymity" is too broad to support useful analysis. Rather, we must consider the implications for Professor Redish's argument of at least two categories of speech: anonymous and pseudonymous speech. I show that even if we accept Professor Redish's account of the dangers of anonymous politically fraudulent speech, our concerns and prescriptions will vary greatly depending on what sort of "anonymous" speech we are talking about. Drawing on signaling theory, this response also offers a more critical treatment of Professor Redish's argument for the prohibition of some forms of anonymous speech. Signaling theory suggests that anonymous speech is not accurately characterized as part of the right of silence; instead, as an attributional decision that sends important signals about the reliability of the speech and the speaker, the choice of anonymity in fact constitutes a highly expressive form of speech. The signaling function of these attribution choices also suggests that Professor Redish's concerns about the misleading nature of anonymous politically fraudulent speech, and his recommendation that we curtail protection for this form of speech, are overstated.

The signaling-based account of anonymity as speech has two subsidiary implications. First, contrary to Professor Redish's suggestion, it is impossible to disaggregate the rights of expressive and associational anonymity. Second, this account supports the argument of many writers that the Supreme Court ought to strongly reconsider its tangled jurisprudence concerning the permissibility of mandatory disclosure rules in the campaign finance laws, which is in tension with what the Court has written about anonymous speech in other contexts.

Number of Pages in PDF File: 20

Keywords: first amendment, anonymity, pseudonymity, political fraud, martin redish, mcintyre, talley, signaling theory, campaign finance, freedom of association, expressive anonymity, associational anonymity

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Date posted: March 19, 2009  

Suggested Citation

Horwitz, Paul, Anonymity, Signaling, and Silence as Speech (March 16, 2009). Available at SSRN: http://ssrn.com/abstract=1361225 or http://dx.doi.org/10.2139/ssrn.1361225

Contact Information

Paul Horwitz (Contact Author)
University of Alabama School of Law ( email )
P.O. Box 870382
Tuscaloosa, AL 35487
United States
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