Document Type

Working Paper

Publication Date

3-19-2009

SSRN Discipline

Economics Research Network; Legal Scholarship Network; LSN Subject Matter eJournals; Constitutional Law, Jurisprudence & Legal Philosophy eJournals; Financial Economics Network; Management Research Network

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 Redishs paper argues for the elimination of First Amendment protection for expressive anonymity in certain cases involving political fraudThis response offers both clarifications and criticisms of Professor Redishs 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 Redishs argument of at least two categories of speech anonymous and pseudonymous speech I show that even if we accept Professor Redishs 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 Redishs 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 Redishs concerns about the misleading nature of anonymous politically fraudulent speech and his recommendation that we curtail protection for this form of speech are overstatedThe signalingbased account of anonymity as speech has two subsidiary implications First contrary to Professor Redishs 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

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