Supreme Court on transparency vs. anonymous speech
President Obama made greater transparency one of the major pledges of his new administration. And Western nations often grade the progress of developing countries in terms of their commitment to transparent government and business practices.
But transparency has a dark side. And a Supreme Court ruling Thursday showed that we may want to think harder about how our affirmation of transparency may, in fact, conflict with another cherished right: freedom of speech, including anonymous speech.
In a case resulting from a Washington state referendum about a same-sex domestic partnership law, high court justices ruled 8 to 1 that it’s OK to make public the signatures on political petitions.
Essentially, gay rights supporters wanted to make public the names of those who signed R-71 petitions in a bid to overturn Washington's "everything but marriage" same-sex domestic partnership law (Washington voters ended up affirming the same-sex law). Defendants insisted that signatures, like Election Day ballots, should remain anonymous and a form of speech protected under the First Amendment. But the court decided that the benefits of disclosure outweighed its burdens. [Editor's note: The original article wrongly indicated that the Supreme Court ruling grew out of California's Proposition 8.]
The ruling will have several consequences, the broadest of which may be to raise the stakes of citizenship.
Anonymous speech is easy, and it tends to foster raw passions. Just take a look at the low quality of most online discussion forums. Adding the accountability of real names – and the prospect of being identified by your neighbors – makes one think twice about weighing in.
Imagine you live in gay-friendly Provincetown, Mass,, yet you strongly disfavor legalized gay marriage. Would you still sign a state petition outlawing gay marriage if you knew that gay marriage supporters could and would identify you publicly? Is potential harassment or social shunning a fair consequence for this kind of civic engagement?
In many ways, Americans have already grown used to – and are grateful for – a high degree of disclosure.
Abstractly, we rank transparency near the top of the list of positive attributes of democratic society. A government of, by, and for the people depends on the free and open flow of information among them.
Concretely, when people move, they often check online to see if any sex offenders live nearby. And federal campaign regulations make it shockingly easy to find out which political candidates your neighbors have supported financially. (In the spirit of disclosure, here's a confession: When I moved a few years ago, I looked up my new neighbors’ political donations, if only to be sure to avoid awkward political references during conversations.) Both reflect a high degree of transparency, in exchange for giving up some freedoms.
Such broad tolerance for this trade-off may explain the muted reaction to today’s lopsided ruling. But if future political debates feature new forms of peer intimidation enabled by the Supreme Court, Americans may start wishing for a little less transparency – and a little more freedom to be anonymous.
