I received an email from someone from Stoughton who wrote contending that, because the Declaration of Independence was a signed document, one could infer that America’s founders disliked anonymous speech.

Here’s a portion of the email:

And when it came time to drop the biggest, loudest, revolutionary document of them all, The Declaration of Independence, there was nothing anonymous about it. The 56 signers, with the poster-size John Hancock boldly front and center, signed their names. Thomas Jefferson, John Adams, Franklin again, among the most enduring names in American history. It took courage. Courage of conviction, we call it. Many of them suffered for it.

So while American law protects anonymous speech, the American tradition tells us the only opinion that counts is the one with a name attached to it.

I have not responded previously. I find this argument against anonymous speech unpersuasive. First, it is the settled law in America today, drawing on our tradition, that anonymous speech is protected. Our constitutional law supports this right. It has supported this right long after the Declaration. That legal protection is part of the American tradition, not a right apart from it. (See the 1995 U.S. Supreme Court decision in McIntyre v. Ohio Elections Commission.)

One may weigh preferences as one wishes, but those preferences don’t determine the law. One might say, for example, what one “appreciates” about anonymity, but that merely appreciation doesn’t set the limits of other citizens’ rights.

Second, the Declaration is a political document, not a private writing. It was, after all, a public declaration of the Second Continental Congress, and the signatures on it are akin to a public listing of those voting in favor. Contemporary Congressional votes to day are just the same –those in favor are listed. Even if our law were not settled in favor of legal protection for anonymous speech – and it is – I would not be persuaded against anonymous speech on the basis of the Declaration. The Declaration is easily distinguished from ordinary private writings.

Third, even after the Declaration, those many of who supported independence continued to write anonymously. (The Federalist papers, of Madison, Jay, and Hamilton are the most notable example.) That anonymous speech persisted among those who supported independence should stand as a refutation that the Declaration somehow overturned the American tradition of anonymous speech.

This entry was posted on Thursday, April 24th, 2008 at 7:27 PM and is filed under Libertarians. You can follow any responses to this entry through the RSS 2.0 feed. Responses are currently closed, but you can trackback from your own site.