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Hastings Constitutional Law Quarterly

Abstract

Namelessness is a double-edged sword. It can be a way of avoiding prejudice and focusing attention on one’s ideas, but it can also be a license to defame and misinform. These points have been widely discussed. Still, the breadth of these discussions has left some of the depths unplumbed, because rarely is the question explicitly faced: what is the normative significance of namelessness itself, as opposed to its effects under different conditions? My answer is that anonymity is an evasion of responsibility for one’s conduct. Persons should ordinarily be held responsible for what they do, but in some cases, where there is sufficient justification, they may enjoy a privilege not to be. One such privilege—the privilege to participate in community thinking—is based in the First Amendment interest that persons have in developing their thinking with others without having to be held responsible for it. I argue that this privilege was not applicable eleven years ago to the challengers in Doe v. Reed and is, for somewhat similar reasons, not applicable to the challengers in the Supreme Court’s most recent anonymity case: Americans for Prosperity Foundation v. Bonta. I argue it was wrongly decided.

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