Legal Commentary

The Court rested its decision protecting anonymous speech on two grounds. The first ground was instrumental:  Protecting anonymity is necessary to induce some authors to contribute valuable information to  the marketplace of ideas.  The second ground was authorial autonomy:  An author?s decision to remain anonymous is an exercise of autonomy over choice of content, and ?an author generally is free to decide whether or not to disclose his or her true identity.?  The Court labeled identification requirements ?intrusive? because they require authors to reveal ?the content of [their] thoughts on a controversial issue."  In essence, the Court treated the decision to remain anonymous as an editorial judgment like any other, which makes choosing to omit one?s name no different than choosing to omit an opposing viewpoint or to include serial commas.  The Court therefore found that the identification requirement operated as a content-based regulation of political speech and applied strict scrutiny, with a predictable outcome. 

From an "authorial autonomy" perspective, Doe v. Reed seems clearly distinguishable from McIntyre. Every "speaker" (petition signer) is making exactly the same "statement," namely, that he or she supports being allowed to vote to approve or disapprove the "everything but marriage" act passed by the Washington legislature.  The individual speaker is not exercising the kind of autonomy Margaret McIntyre exercised in deciding whether her identity would detract or add to her message.  There simply is no "editorial judgment" being exercised in deciding whether to sign the petition, and it is therefore hard to argue that the free speech interest in Doe stands on the same footing as the free speech interest in McIntyre. 

From an instrumental perspective, it might well be that some petition signers would think twice about signing if they knew their names would be released to the general public and put on the Internet.  Thus, disclosure might chill speech, to the extent signing the petition is speech. Arguably,however, this rather weak interest is outweighed by the need for disclosure, where, as in Doe v. Reed, the speaker is taking action which has "direct legislative effect," to borrow a phrase from the Ninth Circuit.  The petition signer is not acting merely in his role as citizen but in his role as citizen-legislator.  When he steps into this role, the public's interests in transparency and accountability in the legislative process arguably trump the rather weak First Amendment speech interest involved, at least where there has been no credible showing that disclosure will result in harassment of or violence against the petition signer. 

These, of course, aren't the only interests or arguments involved in Doe v. Reed.  One certainly could cast it as a case about anonymous association or privacy rather than a case about anonymous speech.  And I suspect the oral argument in the Supreme Court's is likely to focus on the probably outcome-determinative question of whether to apply intermediate scrutiny, as the Ninth Circuit did, or strict scrutiny, as McIntyre might seem to dictate.  This question is particularly interesting in light of the Supreme Court's seeming approval of disclosure requirements in the electoral context in its recent decision in CItizens United.  Regardless of how the case comes out, it should be fun to watch.