Anonymous speech is as American as apple pie

Last week, former United Nations Ambassador and current presidential hopeful Nikki Haley got herself in hot water when she suggested during a Fox News interview that anonymous speech on social media is a “national security threat” and said that, if she becomes president, “every person on social media should be verified by their name.” 

Though Haley walked back some of her comments, backlash against her blatantly unconstitutional take on anonymous speech was swift — and rightly so. Protecting anonymous speech is core to free expression. 

After all, the United States was practically built on a foundation of anonymous speech.

Why protect anonymous speech? 

Broadly speaking, anonymous speech has two core benefits. First, speaking anonymously, or pseudonymously, separates the message from the messenger. When writing the “Federalist Papers,” Alexander Hamilton, James Madison, and John Jay maintained their anonymity by writing under the pen name, “Publius,” letting their arguments for the Constitution’s ratification stand on their own. 

Today’s dissident and minority voices still benefit from the shield of anonymity. 

They weren’t the only Founding Fathers who leveraged this benefit of pseudonymity. As a teenager, Benjamin Franklin submitted a series of essays to his brother James’s newspaper under the profile of a middle-aged widow named Mrs. Silence Dogood, out of belief his own name — and perhaps age — would be a liability. The paper accepted the essays and they became quite popular, but Franklin’s role as author remained secret until after it published the last one. 

When Thomas Paine wrote “Common Sense,” he benefited from the second benefit of anonymous speech: protecting speakers who fear retaliation for their message. In addition to making an impassioned case for American independence, itself a risky proposition, Paine had some choice words for King George III, calling him a “Royal Brute” who “hath wickedly broken through every moral and human obligation, trampled nature and conscience beneath his feet, and by a steady and constitutional spirit of insolence and cruelty procured for himself a universal hatred.” It’s no wonder Paine chose to publish the pamphlet anonymously. 

Today’s dissident and minority voices still benefit from the shield of anonymity. 

Constitutional protections for anonymity

In more recent American history, during the Civil Rights era, writers published anonymously to disseminate ideas while protecting their identities, to avoid severe reprisal for their speech. One such example was in the 1960 Supreme Court case Talley v. California, which involved a conviction under a Los Angeles ordinance requiring handbills or flyers to contain the name and address of the “person who printed, wrote, compiled or manufactured” it. Talley had violated the ordinance by distributing flyers lacking identifying information that called for the boycott of certain businesses that carried products from "manufacturers who will not offer equal employment opportunities to Negroes, Mexicans, and Orientals." 

The Court held the ordinance unconstitutional, writing: “Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind. Persecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all.” 

The Court emphasized the importance of prior rulings on anonymity — including a 1958 case in which the NAACP fought against Alabama officials’ attempts to subpoena its membership records. Of those prior rulings, Justice Black wrote, “The reason for those holdings was that identification and fear of reprisal might deter perfectly peaceful discussions of public matters of importance.” 

In the 1995 case McIntyre v. Ohio Elections Commission, which invalidated an Ohio statute that prohibited distribution of anonymous campaign literature, the Supreme Court eloquently stated the case for anonymous speech, even when it produces imperfect outcomes:

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 — and their ideas from suppression — at the hand of an intolerant society. The right to remain anonymous may be abused when it shields fraudulent conduct. But political speech by its nature will sometimes have unpalatable consequences, and, in general, our society accords greater weight to the value of free speech than to the dangers of its misuse. 

Recent history also shows how laws that limit anonymity can suppress or punish speech. For instance, in 2009, the identities of donors to California’s anti-gay marriage ballot measure Proposition 8 were leaked from the California Secretary of State’s office. As a result, people who had given as little as $100 to the cause were hounded, attacked, or even fired. In 2021 the Supreme Court held that California’s donor disclosure requirement that made the Prop 8 leak possible was unconstitutional, emphasizing that such requirements “impose[] a widespread burden on donors’ associational rights.”

Online speech is still protected speech

It may be true that anonymity, especially on the internet, gives license to internet trolls to say uncivil or repugnant things — even if many provocateurs are perfectly willing to say such things without the benefit of anonymity. Free speech is messy, but by allowing individuals to express unpopular or controversial ideas without fear of personal backlash, we foster a society where truth and understanding can emerge from robust, uninhibited debate. Banning anonymous speech would punish the most marginalized and unpopular voices in our society who need the shield of anonymity the most. 

Undermining protections for anonymous speech under the guise of security, transparency, or civility is not worth the price we would pay as a free society. 

As private companies, individual social media platforms may choose to require users to provide identifying information or use their real names when signing up for the service. However, the Constitution prohibits the government from forcing social media platforms to collect that information. Even the act of collecting this information can have a dramatic and unacceptable chilling effect on speech.

The Constitution’s protections for anonymous speech do not absolutely rule out breaching the veil of anonymity when actual crimes take place — such as true threats or incitement to violence. But those instances do not justify the prophylactic removal of anonymity. 

Undermining protections for anonymous speech under the guise of security, transparency, or civility is not worth the price we would pay as a free society. The right to speak anonymously is not just a mere extension of our freedoms but a fundamental aspect of them.