Notre Dame Law Review
A series of United States Supreme Court decisions establishes that the First Amendment provides a qualified right to speak and publish anonymously, or under a pseudonym. But the Court has never clearly defined the scope of this right. As a result, lower courts have been left with little guidance when it comes to dealing both with the Internet-fueled growth of torts and crimes committed by anonymous speakers, and with the increasing number of lawsuits aimed at silencing legitimate anonymous speech. In this Article, we provide both positive and normative foundations for a comprehensive approach to anonymous speech. We first draw upon intellectual property theory, particularly as it relates to trademarks and copyright, to develop a positive analysis of the private and social costs and benefits of anonymous speech. Traditional First Amendment jurisprudence then supplies the missing normative component by providing two crucial presumptions that suggest how to weigh the relevant costs and benefits. The first is the anti-paternalism presumption. This assumes that audiences are capable of responding to anonymous speech in much the same way they respond to generic, nontrademarked products - by recognizing that the product, in this case speech, lacks an important quality indicator and should be evaluated accordingly. In this manner, audiences can minimize the potential social harm of many forms of anonymous speech. The second presumption, which we refer to as "more is better," favors more speech over less, and thus places considerable weight on anonymity as a tool for encouraging otherwise reluctant speakers to come forward - even at the risk of simultaneously encouraging more potentially harmful speech. These twin presumptions form the basis for the detailed guidance we supply for legislatures contemplating regulation of anonymous speech, and for courts seeking to balance the rights of anonymous speakers with other important interests.
Lyrissa Barnett Lidsky and Thomas F. Cotter, Authorship, Audiences, and Anonymous Speech, 82 Notre Dame L. Rev. 1537 (2007), available at https://scholarship.law.umn.edu/faculty_articles/192.