IP Scholars conference, anonymous speech

Hmm, that post title might be misleading.

Thomas Cotter, Authorship, Audiences and Anonymous Speech. Positive and normative analyses of anonymous speech – how do audiences weigh such speech? The two recent prominent Supreme Court cases, McIntyre and McConnell, the campaign finance case, have very different approaches to the value of anonymity. If anonymity is content, requiring revelation of identity is content-based and probably illegitimate, but the Court doesn’t quite go that far in McIntyre. McConnell, by contrast with McIntyre, is fine with requiring revelation of campaign ad funding sources on the eve of a federal election because otherwise voters may be misled by anonymous/pseudonymous speech and because anonymous speech might further political corruption.

Because of the tension between these cases, it’s not clear what to do with online anonymity cases that come up. Any lessons from trademark law? In some ways, anonymous speech is like a generic product – we lack cues about quality that a name could provide. A person who’s known to be untrustworthy gets more benefit by speaking anonymously than by using her own name; anonymity can also avoid both deserved and undeserved sanctions for speaking out. Walt Whitman published anonymous reviews of his own poetry to drum up public interest; maybe McConnell is an example of this as well.

Rules for anonymous speech should avoid undue chill, even acknowledging that anonymous speech will therefore cause harm. A presumptive rule in favor of anonymity, perhaps, so that a defamation plaintiff will have to do more than file a complaint to get disclosure.

My comments: Cotter could consider PostSecret as form of anonymity with artistic benefits. There’s also relevant psychological literature: We forget the source of information more easily than we forget the information, thus causing us to revise the probability of its truth upwards over time. This makes anonymous speech more beneficial than it rationally should be and more beneficial than recipients sincerely believe it is – they say they discount its value, but later they don’t.

Comment: anonymity might not be “content,” but more like a loudspeaker/volume dial that affects transmission, so we could analyze restrictions as content-neutral. Response: Okay, but anonymity may be a choice that affects the message and is part of the artistic or political project of the speech. Pseudonyms like Publius can definitely be part of the message.

Michael Landau: When you don’t know the source of a quote – Chairman Mao or Abraham Lincoln – it affects your evaluation; that’s what makes “Who said this?” quizzes fun. Similarly, you may expect a different viewpoint from the Wall Street Journal than the Washington Post. The effect on evaluation is not just about volume. (Cf. research showing that papers with female names identified as authors are evaluated differently than papers with male names.)