The United States Supreme Court has long recognized the critical value that society has placed on free speech. Both the First Amendment itself and Supreme Court cases interpreting it afford maximum protection to certain forms of speech, including direct speech and association. In many aspects of our lives, individuals are struggling to express their free speech rights while attempting to remain anonymous. The following three First Amendment cases winding through the courts may help clarify free speech rights.
On October 15, 2001, the United States Supreme Court granted certiorari in Watchtower Bible and Tract Society of New York v. Village of Stratton, Ohio (No. 00-1737), a case on appeal from the Sixth Circuit. This case involves whether a city ordinance requiring door-to-door solicitors (in this instance, Jehovah’s Witnesses) to obtain and display a permit with their name violates their First Amendment right of free expression and anonymous speech. The lower courts upheld the ordinance, opining that the city of Stratton had a valid interest in attempting to discourage fraud by canvassers and that the law did indeed apply to all canvassers, religious or not.
In 1995, the Supreme Court ruled in McIntyre v. Ohio Elections Commission that activists have the constitutional right to hand out political literature anonymously. The Sixth Circuit ruled in Watchtower that a canvasser gives up his right to McIntyre-style anonymous speech when he chooses to present himself face-to-face to speak with people (for example, going door-to-door). The Supreme Court will focus solely on the provision of the city ordinance that requires canvassers to display their permits, and therefore their names, on demand.
The Center for Individual Freedom is preparing to file a friend of the court brief on behalf of Watchtower. In the Center’s view, it is up to each speaker to decide whether to proceed anonymously or for attribution, and it is up to the public to weigh the value of anonymous or attributed speech accordingly. The First Amendment precludes a legislature from making those choices for us.
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In the realm of anonymous political speech, in Texas v. Doe a Dallas district attorney brought misdemeanor charges against "John Doe", the creator and circulator of an anonymous political advertisement which described an incumbent city council candidate as a "puppet who can’t tell the truth". The State ultimately located the accused and charged him with violating a Texas statute that prohibited an individual from entering into an agreement for printing or publication of a political advertisement without identifying himself or herself within the advertisement. Doe contended that the law was unconstitutional because it infringed upon his right to free speech.
On October 16, 2001, the state court of appeals agreed, concluding that the statute violated the First Amendment because it sought to regulate core political speech and was not narrowly tailored to serve an overriding state interest. Referring to Supreme Court precedent, the court found that "[f]reedom of speech includes the right to engage in the dissemination of ideas without being publicly identified" and that "an author’s decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment."
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The Supreme Court may be requested to review the relationship between political campaigning and the First Amendment in another political speech case. This month, the United States Court of Appeals for the Fifth Circuit ruled in Vasquez v. Housing Authority of City of El Paso that a local housing development’s outright ban on door-to-door political campaigning by nonresidents was an unreasonable restriction on the freedoms guaranteed by the First Amendment. Although the court found the development to fall within the category of nonpublic fora (and therefore subject to a lesser standard of review), the court still concluded that the prohibition constituted an unreasonable restriction on the residents’ First Amendment rights. Citing Supreme Court precedent, the court stated that "[o]f course, as every person acquainted with political life knows, door to door campaigning is one of the most accepted techniques of seeking popular support, while the circulation of nominating papers would be greatly handicapped if they could not be taken to the citizens in their homes. Door to door distribution of circulars is essential to the poorly financed causes of little people."
This ruling, the court recognized, is in direct conflict with an Eleventh Circuit decision involving a nearly identical Florida statute. In Daniel v. City of Tampa, the Eleventh Circuit concluded that Florida’s housing authority complexes are nonpublic for and that "enforcement of the statute is a reasonable means of combating the rampant drug and crime problems within the Housing Authority property." Fifth Circuit Court Judge Rhesa Hawkins Barksdale noted her agreement with the Eleventh Circuit decision, stating in her dissent in Vasquez that the rules at issue "are reasonable because the purpose of the [housing authority] properties is to provide affordable housing and not a vehicle for political canvassing."
The
value of privacy and anonymity can be extremely important to individuals
who might otherwise remain silent rather than voice controversial
views or join unpopular causes. The courts have long recognized
that forced disclosure of an individual’s affiliations and
views can act as a significant deterrent to free association or
expression. We believe that requiring public disclosure of the identity
of private speakers and supporters of private associations as the
price of merely communicating an idea or associating with like-minded
individuals is an excessive and unjustified burden on such speech
or association.