The right to anonymity

With one dissenting vote (Clarence Thomas), and multiple opinions associating with Chief Justice Roberts’s majority opinion, the court held last week that there was no First Amendment violation in the Washington law itself. There might be, the court held, in its operation and application, but not on the mere face of it. The state has the right to root out voting fraud, mistakes and invalid signatures and to promote transparency in the electoral process through its Public Records Act. The general power of the secretary of State to fulfill this function was not enough, apparently.

Justice Antonin Scalia thought the potential for harassment claimed by the voters in Washington “is a price our people have traditionally been willing to pay for self-governance.” Democracy is doomed, he posited, if people don’t have the civic courage to go public with their politics.

Only Justice Thomas recalled and respected the earlier Supreme Court cases that protected anonymity to guard against chilling citizens’ constitutional rights. In his view, and in the view of many privacy organizations that filed amicus briefs supporting Thomas’s views, the historic precedent protecting the privacy of associations is required by the First Amendment. One who agrees can only hope that the eight justices who took pains to point out that they would vote differently if it were demonstrated that disclosure did in fact injure voters will support the claims made when and if that evidence is established. If it isn’t too late.

Meanwhile, the full meaning and breadth of the right of anonymity remains ambiguous, despite judicial precedents that anonymity is a core First Amendment value.

Ronald Goldfarb, a Washington attorney, author and literary agent, is writing a book on the subject of anonymity.