1 Almost a century ago, in 1928, the U.S. Supreme Court rejected the claim of several convicted rum-runners and bootleggers that their Fourth Amendment right to be free of “unreasonable searches and seizures” was violated when government agents wiretapped their telephones in order to gather evidence against them. But Justice Louis Brandeis wrote a stirring dissent in the case, arguing that while “the sanctities of a man’s home and the privacies of life” are protected by specific language in the Fourth (and also the Fifth) Amendments to the U.S. Constitution, “time works changes, brings into existence new conditions and purposes,’ so that subtler and more far-reaching means of invading privacy have become available to the government.” It is the concept of privacy that counts, wrote Brandeis—the “right to be let alone [...] the most comprehensive of rights and the right most valued by civilized men” (Olmstead 474, 478). [1][1] Brandeis was quoting in part from Boyd v. United States,... 2 In attempting to export into the criminal process the right of privacy that Brandeis had outlined in a famous law review article in 1890 (Brandeis & Warren), Brandeis was ahead of his time, for even though four of the nine justices of the Supreme Court dissented in the Olmstead case, it took thirty-eight years for the Court to overrule it and acknowledge the elementary proposition that electronic surveillance constitutes a search just as surely as a constable’s rifling through one’s desk or diaries (Katz v. U.S.). To this day, the Court and its watchers still struggle over the scope and meaning of Brandeis’s “right to be let alone”—when it applies, and what societal or governmental interests are sufficient to overcome it. It is a struggle that becomes more difficult as technology advances to ever more pervasive and sophisticated means of intrusion on private life. Early Recognition of the Rights to Privacy and Anonymity: Civil Rights, Communism, and Sex 3 The Supreme Court has played different roles at different times in U.S. history, sometimes advancing and sometimes stalling political change; sometimes reflecting new social or cultural attitudes before “mainstream America” has

embraced them, but more frequently reflecting—and imposing onto law— conservative viewpoints that large sectors of society are already shedding. The Court’s relation to the other branches of the federal government—the executive and the legislature—as well as its relation to the fifty states, has not been static or consistent, and the Court has not always honored the principle that it articulated in its famous 1938 Carolene Products decision: that careful judicial scrutiny of legislative and executive acts is necessary where “discrete and insular minorities” are disempowered and cannot defend themselves through the normal political process (U.S. v. Carolene Products 152 n.4). 4 What the Supreme Court has to say about privacy—indeed, what it has to say about any constitutional right—is not just a matter of fine rhetoric or abstract principle. A law, ordinance, or government practice, no matter how oppressive, remains in force until one of two things happens: either it is repealed by the legislature or otherwise discontinued as a result of the political process; or it is invalidated by a court. Although the Supreme Court is not the only court in the U.S. that can invalidate a law or declare a government practice to be unconstitutional, it has the final word. Its decrees apply everywhere in the country, not simply in one state or judicial district. 5 Even when a right is specifically mentioned in the Constitution—for example, the Fourth Amendment right to be free of “unreasonable searches and seizures” —what it means in any particular situation is up to the political branches of government (the legislature and the executive), until either someone is prosecuted for a crime and asserts a constitutional right in her defense, or someone brings a lawsuit alleging that a particular law or policy is unconstitutional, and a court supplies an interpretation. When a right such as privacy is not specifically named in the Constitution, the courts’ interpretations are necessarily more controversial, and more likely to stir opposition within the political branches, and in the court of public opinion, than are judicial decisions about rights clearly enumerated in the Constitution—for example, freedom of the press, free exercise of religion, or the right to counsel for criminal defendants. 6

In addition to the tension between the judicial and political branches of the federal government, the United States’ federalist system reserves significant powers to the fifty states. When a U.S. federal court wades into state politics and mores by invalidating a particular state or local practice—whether relating to race, sexual morality, criminal justice, or the management of schools, prisons, or hospitals—the political tensions can be equally, if not more, intense. Privacy, Anonymity, and Civil Rights 7 The Civil Rights movement of the 1950s and 60s dramatically illustrates the conflict between state practices and constitutional principles as articulated by courts. It also spawned some of the early Supreme Court precedents on privacy. Although the decade of the 1950s in the U.S. is often considered a time of political stasis and quiescence, rapid social change was brewing: the NAACP’s careful and gradualistic strategy of attacking entrenched and legally enforced racism in many parts of the country, particularly the South, culminated in the Supreme Court’s 1954 decision striking down segregation in public schools (Brown). The next year, the eleven-month-long boycott by African Americans of the City of Montgomery, Alabama’s segregated public buses galvanized the nation and resulted in a less famous but equally important federal court decision invalidating racial apartheid in public transportation (Browder; Branch 143205). 8 Progress breeds reaction, and although much of the U.S. population was ready to put an end to enforced racial segregation, significant sectors—particularly in the South—were not. Indeed, racist violence was so pervasive in southern states during the Civil Rights movement that the public “outing” of those who supported the NAACP or other activist groups could well mean economic strangulation, vandalism, arson, and other physical attacks. Privacy— specifically, the privacy of one’s political associations and beliefs—became critical to political liberty and bodily security, and to social change. 9

An Alabama branch of the NAACP opened in 1951. Following the long, dramatic, and ultimately successful Montgomery bus boycott the Alabama Attorney General filed a lawsuit in 1955 to stop the organization from operating. The Attorney General’s excuse for suing the local NAACP and seeking to enjoin its operation was that the group had not complied with a law that required corporations to file certain paperwork before “doing business” in the state. The NAACP did not think it was covered by the law, but a local judge disagreed, and ordered the organization to stop its activities. Then, at the Attorney General’s request, the judge ordered the NAACP to produce a variety of records, including complete membership lists. 10 The NAACP objected that, given the political situation in Alabama, and particularly the hostility of the state government and much of the white population to the group’s objectives, revealing its members’ identities would subject them to intimidation, harassment, loss of employment, and violent attacks. It was in essence a claim of a right to privacy in one’s political associations, when circumstances demand it. The state court insisted on disclosure, but the Supreme Court reversed. In a 1958 decision, the Court explained that “compelled disclosure of affiliation” with groups that advocate unpopular causes can be an effective way of intimidating and silencing the groups’ members: “Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs” (NAACP v. Alabama 462). 11 NAACP v. Alabama was a seminal case, and a good example of the Supreme Court’s role in protecting “discrete and insular minorities” who are not represented adequately, if at all, in the corridors of political power (Caroline Products). (Indeed, few African Americans were allowed to vote in the 1950s in the Southern states). It is true that the state was not directly investigating the content of the NAACP’s private communications with its members and supporters. But even the state effort to discover their identities was a powerful way of chilling, if not silencing, those communications. 12

Two years later, in 1960, the Court followed the NAACP v. Alabama precedent to invalidate two Arkansas ordinances requiring that state’s NAACP branch to disclose membership and contributors’ lists (Bates). 13 A third case from this contentious period of the Civil Rights movement focused on whether the First Amendment encompasses a right to speak anonymously. In 1960, the Supreme Court struck down a Los Angeles law that prohibited anonymous handbills. An activist had been arrested for distributing leaflets urging a boycott against merchants who carried products of “manufacturers who will not offer equal employment opportunities to Negroes, Mexicans, and Orientals.” Invalidating the law, the Court explained that 14 anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind. Persecuted groups […] from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all. (Talley 64) Privacy and Unpopular Political Views 15 A variation on the conflict between privacy and disclosure presented itself in the mid-1960s in another highly charged political context: the anti-communist blacklists, purges, and loyalty investigations of the Cold War (Caute; Schrecker; Goldstein). In 1965, the Supreme Court confronted a new aspect of the evolving right to privacy: forced disclosure not of organizational affiliations, but of reading choices. 16 A federal law required the Post Office to detain, and deliver only upon request, unsealed foreign mailings of material that the Secretary of the Treasury had determined to be “communist political propaganda.” Corliss Lamont, a humanist, socialist, civil libertarian, and passionate opponent of the political

loyalty testing that had infected even the American Civil Liberties Union in the 1940s (Lamont, ed.), sued to challenge the law after he received a card telling him that he must complete and return it if he wished to receive a copy of the Peking Review. Lamont argued that the procedure violated his privacy and freedom of speech, and the Supreme Court agreed. 17 Justice William O. Douglas’s opinion for the Court in Lamont v. Postmaster General outlined the perils of the post office’s procedure. Initially, Douglas recounted, the reply card had 18 contained a space in which the addressee could request delivery of any “similar publication” in the future. A list of the persons thus manifesting a desire to receive “communist political propaganda” was maintained by the Post Office. (Lamont 303) 19 The government had discontinued this practice in mid-1965, and after that, it required that a card be returned each time an individual wanted a piece of mail that the government had labeled as propaganda. The whole process, Douglas said, abridged First Amendment rights because it was “almost certain to have a deterrent effect, especially as respects those who have sensitive positions […]” (305, 307). 20 Thus, as in Bates and NAACP v. Alabama, so in Lamont v. Postmaster General, the Supreme Court understood that there is frequently a close relation between privacy and freedom of expression. Most citizens are not eager to engage in any political dissent that is likely to trigger government surveillance. The challenge, of course, comes in determining where to draw the line between the privacy interests of radicals like Corliss Lamont or supporters of the NAACP, and asserted governmental or public interests in disclosure and transparency. In some situations, such as identifying the source of electoral campaign contributions, society has a strong interest in making the information available,

an interest that ordinarily outweighs the individual and societal interest in privacy of political association. (See the discussion of the Buckley, Brown, and Doe v. Reed cases in next section). Privacy and Sex 21 Even in the sphere most readily recognizable as private—intimate family and sexual life—the U.S. Supreme Court has often deferred to countervailing interests asserted by the government. Sex has been particularly problematic for the Court for at least two reasons: the social and cultural backdrop of sexual anxiety in the U.S., and the ambiguity of our constitutional text. 22 The U.S., like the United Kingdom, has a rich history of social anxiety and hypocrisy on sexual matters. Public standards of morality, enforced by obscenity laws, have long existed alongside a lively, although partly underground, culture of pornography, erotica, crime magazines featuring bloodshed and lust, and even crime-and-horror comic books (Heins; Gurstein; Boyer). The law of obscenity has always been vague and subjective; it turns on concepts like “patent offensiveness” and “community standards” that would not be permissible grounds, in the U.S., for censorship in any other sphere of expression. But powerful cultural and religious norms have prevented the Supreme Court from following logic and ruling that sexually explicit writings and images should enjoy the same First Amendment protection as other expression (Roth; Miller). It has followed from the squeamishness that has driven our obscenity laws that other government invasions of sexual privacy have presented, for judges, a difficult clash between principles of individual freedom and prevailing public morality—including fears that unbridled sexual expression will lead to irresponsible behavior. 23 As for the constitutional text, it did not help resolve matters that privacy in family and sexual life—unlike privacy in political communications or in one’s “papers and effects”—does not have an explicit anchor in the Constitution. Privacy in political associations and reading choices can be encompassed within

the First Amendment freedom of speech, assembly, and petition “for redress of grievances.” Privacy in both electronic and paper communications can be encompassed within the Fourth Amendment protection against “unreasonable searches and seizures.” But privacy in the bedroom is not mentioned in the Bill of Rights. When the Supreme Court confronted this problem in 1965, it faced not only the question of “strict” versus liberal interpretation of constitutional text, but the question of where in the Constitution, should the liberal view prevail, it was to find a right to intimate sexual privacy. 24 The case of Griswold v. Connecticut involved a constitutional challenge to a State law that criminalized the distribution of contraceptives, even to married couples. Striking down the law, the justices struggled to identify where in the Constitution they might find a right to privacy in matters of sexuality and reproduction. 25 Justice Douglas wrote the lead opinion for the Court and, using language that has since been both celebrated and mocked (Luban 27-37; Sykes 86; Kozinski & Volokh 1657; Ramirez ), [2][2] Ramirez calls the metaphor of the penumbra “remarkable... he explained that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance” (Griswold 484). Douglas said that these “penumbras” and “emanations”—from the First, Third, Fourth, Fifth, and Ninth Amendments to the Constitution—create a constitutional right to personal and family privacy. [3][3] Justice Douglas referred to the “right of association”... 26 Several of the justices agreed with the Court’s result but were not comfortable with penumbras and emanations; they wanted something more specific. So, Justices Arthur Goldberg, William Brennan, and Earl Warren pinned the right to privacy on the Ninth Amendment, which reserves to the people rights not specifically enumerated in the Constitution (Griswold 486-96). Justices John Harlan and Byron White opted for the Due Process Clause of the Fourteenth Amendment, which prohibits deprivations of “liberty” without “due process of law” (502).

27 What emerged from these differing interpretations of the Constitution was the fact that something beyond a search or seizure occurs when the government invades private life—or, for that matter, when it tries to regulate people’s sexual thoughts, and the sexual information they receive, through anti-obscenity laws. In a number of cases decided between 1958 and 1969, the Supreme Court grappled with these other aspects of the “right to be let alone.” 28 Laws against “obscene” communications had long been part of the American legal scene, and in 1957, the Supreme Court had basically approved them, although limiting their scope to works that appeal predominantly to the “prurient interest” of the average adult, that are “no essential part of the exposition of ideas” and thus are “utterly without redeeming social importance” (Roth). Now, in 1969, the Court carved out an exception to this governmental power to prosecute people for enjoying, in the privacy of their homes, “prurient” sexual communications that are thought to lack “redeeming social importance” and that would therefore be considered obscene—hence, unprotected by the First Amendment. 29 The case involved a Georgia man who was convicted of possessing obscenity after police found eight-millimeter porno films in his home. The Court, in an opinion by Justice Thurgood Marshall, overturned the conviction with the somewhat inconsistent reasoning that even though obscenity is not protected by the First Amendment (because it is presumably without social value), the “right to receive information and ideas, regardless of their social worth, is fundamental to our free society.” This right, moreover, “takes on an added dimension in the context of a prosecution for “mere possession of printed or filmed matter in the privacy of a person’s own home.” Why? Because “also fundamental is the right to be free, except in very limited circumstances, from unwanted governmental intrusions into one’s privacy” (Stanley 564). 30

Attempts to extend the privacy principle announced in Stanley have failed. In 1973, the Supreme Court rejected a constitutional challenge to the obscenity prosecution of a porn theater where willing customers could enjoy screen fantasies in a sort of communal private space (Paris Adult Theatre). And in 1990, the Court said that Stanley has no application to private at-home possession of child pornography (Osborne). 31 Nevertheless, the sexual privacy principle has persisted in the field of reproductive choices like contraception and abortion. The Griswold precedent led to Roe v. Wade in 1973, establishing a limited constitutional right of women to seek abortions, at least of early-term pregnancies, and of physicians to provide them; the right was now firmly located in the capacious spaces of the Fourteenth Amendment’s Due Process Clause (Roe). And in 1986, the Court found that a state government’s asserted need for the disclosure of medical information does not outweigh the privacy rights of women receiving abortions. Pennsylvania’s state law imposed a host of requirements on abortion providers and their patients, among them detailed record-keeping and reporting. The Supreme Court recognized the legitimacy of medical record-keeping, but said that the “scope of the information required and its availability to the public” presented too great a risk of interference with the constitutional right to choose. 32 Thus, “Pennsylvania’s reporting requirements raise[d] the specter of public exposure and harassment of women who choose to exercise their personal, intensely private, right, with their physician, to end a pregnancy.” The likely result would be “an unacceptable danger of deterring the exercise of that right” (Thornburgh 765-68). The Court recognized that, like the NAACP’s supporters in the racist south, and like radical dissenters or readers of communist journals when such ideas were most demonized, women and physicians whose privacy was unreasonably invaded would be chilled in the exercise of other constitutional rights. 33 But when might State interests outweigh the sexual privacy right? Scholars have suggested some sensible limits: for example, when, in the interest of public

health, the government needs to share information about possible AIDS infection with the sexual partners of an infected individual (Etzioni 185-86; Sadofsky 108). As David Sadofsky writes, 34 the “search for a rational mid-point” between privacy and disclosure is an empirical question involving measurement of the real costs and benefits of government behavior. Respect for privacy does not have to mean a total absence of regulation: it does mean that this regulation should be conducted without ideological preference for the promotion of one cultural choice over others, with respect for personal autonomy, and with a regard for the real results of policy. (Sadofsky 108) Politics, Privacy, and Anonymity in the Electronic Age The Need for Disclosure in Electoral Politics 35 One of the most important—and contentious—arenas in which openness and transparency clash with associational privacy is the regulation of campaign finance. As the saying goes, “money talks,” and in U.S. elections, it talks at very high volume, particularly through televised campaign advertisements. The consequence is not only that the richest candidates and their financial backers can drown out the opposition, but that elected leaders will be so beholden to their big contributors that their integrity, and that of the entire democratic process, will be impaired. In the 1976 case of Buckley v. Valeo, the Supreme Court was confronted with a First Amendment challenge to a federal law that attempted to address these problems. 36 The Court struck down parts of the law that imposed a ceiling on campaign expenditures; but it upheld disclosure provisions that were intended at least to put the public on notice of where the expenditures were coming from. These sections of the law required individuals and organizations to make public both the sources of all campaign contributions above $100 and the recipients of all

expenditures above that amount. Referencing NAACP v. Alabama and Bates v. Little Rock, among other precedents, the Court acknowledged that “compelled disclosure, in itself, can seriously infringe on privacy of association and belief guaranteed by the First Amendment”; hence, disclosure requirements “must survive exacting scrutiny.” The requirements were justified in the context of campaign finance, the Court said, because information about the sources of campaign money helps voters evaluate candidates; and because disclosure deters corruption (and avoids the appearance of corruption) “by exposing large contributions and expenditures to the light of publicity” (Buckley 64-67). This in turn, as the Court explained, and reiterated in a later campaign finance case, serves an interest “of the highest importance”: “sustain[ing] the active, alert responsibility of the individual citizen in a democracy for the wise conduct of the government” (McConnell 206, quoting Buckley 788-89). Quoting the always-quotable Justice Brandeis, the Supreme Court in Buckley observed that “sunlight is said to be the best of disinfectants; electric light the most efficient policeman” (Buckley 67). [4][4] The Court was quoting Louis Brandeis, Other People’s... 37 But the Court also said that minor parties and independent candidates might get an exemption from the law if they could show that disclosure would lead to the kind of harassment and reprisals that drove the results in Bates and NAACP v. Alabama (69-74). The Court made good on its promise a few years later, in 1982, when it ruled that the disclosure provisions of a state campaign expense reporting law could not be constitutionally applied to the Socialist Workers Party because the party had historically been the target of harassment by both government officials and freelance Red-baiters (Brown v Socialist Workers Party). 38 In 1995, the Supreme Court extended First Amendment protection for anonymous speech to the election context—at least in some circumstances. The case involved not candidates but ballot questions. Margaret McIntyre, an Ohio citizen, had circulated an anonymous leaflet to protest a tax proposal that was to be on the ballot in her town’s upcoming election. State law prohibited anonymous campaign literature. But although the law had the same commendable purpose as the federal campaign finance law at issue in Buckley v.

Valeo (“sunlight is the best disinfectant”), the Supreme Court found in this circumstance that Ms. McIntyre’s right to anonymity outweighed whatever benefit the state could claim from disclosure. 39 This was not to say that a social interest in disclosure can never be sufficiently compelling to overcome the constitutional right to speak anonymously. The Supreme Court in McIntyre implied that anonymity could be broken in specific cases where a publication was libelous or fraudulent; the problem with Ohio’s law was that it was not limited to such situations. Rather, in the supposed interest of preventing fraud or libel, it broadly barred all anonymous campaign speech, no matter how truthful or non-defamatory (McIntyre 349-50). 40 Justice Clarence Thomas wrote a concurring opinion in McIntyre, tracing in meticulous detail the historical importance of anonymous speech, in order to demonstrate that the drafters of the First Amendment surely understood it to encompass this right (358). But Justice Antonin Scalia, whose ideological lead Thomas so often follows, strenuously dissented. In Scalia’s view, the precedent of Buckley (the campaign finance case), not Talley (the anonymous leafleting case) should govern: “protection of the election process justifies limitations upon speech that cannot constitutionally be imposed generally” (378). Moreover, Scalia said, there was no evidence in the case that Ms. McIntyre faced any danger of retaliation or embarrassment should her identity be revealed; therefore, she should not be entitled to an exemption from an otherwise valid general election law (379). 41 The conflict between McIntyre’s endorsement of anonymity and Buckley’s support for disclosure continues to haunt election law. The most recent clash has come in the context of gay marriage. At this writing, the Supreme Court is poised to decide whether the signers of public-record petitions to repeal a state law that allowed gay couples the rights of married persons can keep their identities secret (Doe v. Reed). Relying on precedents such as Bates and NAACP v. Alabama, a group called Protect Marriage Washington argues that public exposure could lead to harassment and thus chill the First Amendment rights of

the petition-signers. It is perhaps a measure of how far public opinion in the U.S. has progressed on the issue of equality for gays and lesbians that the signers of anti-gay-marriage petitions are able to make a credible claim that their viewpoint would be chilled by public exposure. Cable and the Internet 42 The emergence, proliferation, and then dominance of electronic media as the twentieth century progressed has magnified the problem of weighing rights to privacy against social demands for transparency. The money behind campaign ads on television may require disclosure because of a compelling public interest, but the same cannot be said of private entertainment choices on TV. Thus, in a 1996 case involving a First Amendment challenge to a complicated federal law regulating “indecency” on cable television, the Supreme Court struck down a provision that required cable operators to segregate and block sexually oriented programming over “leased access” cable channels, and then required subscribers who wanted to receive to such programming to request access in advance and in writing (Denver Area 735). The chilling effect of such an “opt-in” requirement was obvious. 43 When Congress passed this cable indecency law in the early 1990s, it probably thought pornography was just as politically unsavory as the communist literature for which people had to make an affirmative request in Lamont v. Postmaster General. But as in Lamont, the Supreme Court in the Denver Area case recognized the problem with forcing people to place themselves on a government-mandated and disapproved list. As Justice Stephen Breyer wrote for the Court: 44 the “written notice” requirement will further restrict viewing by subscribers who fear for their reputations should the operator, advertently or inadvertently, disclose the list of those who wish to watch the “patently offensive” channel. (Denver Area 754)

45 Justice Breyer cited Lamont in support of his conclusion. 46 Privacy in individual viewing choices, however, did not fare as well in the Supreme Court in 2003, when another Federal censorship law, this time aimed at the Internet, was up for judicial review. Congress had been in a panic over pornography on the Internet since the mid-1990s, and its first two attempts at restricting access to it—especially, but not only, by minors—were struck down because they imposed criminal penalties on constitutionally protected expression (Reno; Ashcroft). [5][5] The Supreme Court’s Ashcroft decision technically only... 47 On its third try, Congress had a different approach: not a criminal law, but a condition on government funding. If schools and libraries want to continue receiving federal aid for Internet connections, then, according to the Children’s Internet Protection Act (or CIPA), they must install filtering software. Such privately manufactured filters, with their key-word-based blocking systems, are notoriously overreaching (Heins, Cho & Feldman), and suppress tens of thousands of innocuous, non-sexual Internet sites (American Library Assn v. U.S.), but this did not deter a majority of the Supreme Court’s justices from ignoring the detailed findings of a three-judge court that had struck down CIPA. In reversing the three-judge court and upholding the law, the Supreme Court relied heavily on a provision that allowed librarians to “disable” the mandated filters on request from an individual, for “bona fide research or other lawful purposes” (U.S. v. American Library Assn). 48 The American Library Association, the lead plaintiff in a First Amendment case challenging CIPA, argued not only that the disabling provision would delay library users’ access to legitimate materials online, but that, as in Lamont in 1965 and the Denver Area cable TV case in 1995, requiring people to make an affirmative request would have a chilling effect: many simply would not come forward and identify themselves as presumed pornography lovers, even if their

real research purposes involved breast cancer, sex discrimination, sexual harassment, or topics that did not even contain suspicious words. But the Court, in a decision by then-Chief Justice William Rehnquist, shrugged off this concern with a casual rejoinder: “the Constitution does not guarantee the right to acquire information at a public library without any risk of embarrassment” (Denver Area 205). 49 If the political climate of the 1960s drove the results in the early anonymity and privacy cases, a very different political climate in the first decade of the twentyfirst century contributed to the Supreme Court’s unwillingness to recognize any genuine chill on free expression from forced disclosure of one’s identity in the course of a request to disable an Internet filter. And the issue does not simply concern sex, private life, or health-related research. Filters are a classic form of “prior restraint”: they block material in advance, before it has been determined to be in any way obnoxious or unlawful. Research on everything from human rights and the Shoah to space exploration and sports can not only be chilled but stopped in its tracks at schools and libraries by the blocking of websites that can only be unblocked upon request (Heins, Cho & Feldman). Bloggers, Critics, and Sex Fiends: Balancing Anonymity Against Disclosure 50 The American Library Association case involved both privacy and its close cousin, anonymity. That is, library patrons could reasonably object on two separate but related grounds to the requirement that, in order to access the Internet unfiltered, they must submit a request whose bona fides would be reviewed by a library official. First, it is arguably no business of library officials what information patrons wish to access online; this is an element of the right to privacy in personal communications and in access to ideas that the Court recognized in Lamont. Second, regardless of whether the content of library Internet searches remains private information, there is a right, in some circumstances, to communicate without identifying oneself, or using a pseudonym—that is, to communicate anonymously. 51

Often, the quest for anonymity derives from a desire for privacy; sometimes, it derives from a fear of political or social retribution. One federal court, in striking down an overbroad Internet censorship law that, in the interest of preventing fraud, prohibited much innocent anonymous or pseudonymous speech, identified the use of false IDs as a legitimate tool “to avoid social ostracism, to prevent discrimination and harassment, and to protect privacy” (ACLU of Georgia v. Miller 1233). Pseudonyms are often used in literature as well, as the Supreme Court in the McIntyre case noted. Writers of high-minded tomes, for example, may not want their scholarly bona fides threatened by public knowledge that they also write page-turner detective novels or even pornographic ones. 52 U.S. history’s most famous example of pseudonymous speech is The Federalist Papers, whose authors (Alexander Hamilton, James Madison, and John Jay) used the fictitious name “Publius” in advocating for adoption of the U.S. Constitution during contentious times (Rossiter viii-ix; Rosen 168). Indeed, the tradition of anonymity as a political tool goes back even further in the U.S., to the celebrated 1735 case of the printer John Peter Zenger, who was prosecuted after refusing to identify the authors of pseudonymous articles he had published attacking the colonial governor (McIntyre 361). Zenger’s jury was persuaded by the eloquence of his attorney to ignore the prevailing law of seditious libel and acquit the defendant. 53 But there are also compelling arguments against anonymity. As Jeffrey Rosen has observed in the context of Internet “anonymizers”: 54 In addition to protecting heroic Chinese dissidents posting to a newsgroup about democracy, anonymous remailers can protect child pornographers, electronic thieves, stalkers, harassers, and libelers. (Rosen 179) 55

Two instructive recent cases involved the college gossip websites Juicy Campus and AutoAdmit.com. Both were rife with sophomoric, sexist, and racist comments; Juicy campus was, as one blogger wrote, “a hotbed for such crucial college discussions as who is the most promiscuous sorority girl or the hottest waitress at the downtown sports bar” (Milian); another observer reported that one thread on Juicy Campus (concerning the “most overrated Princeton student”) quickly “dissolve[d] into name-calling, homophobia and antiSemitism” (Haynes). AutoAdmit.com, likewise, contained “a flood of hateful speech,” including sexual threats, against a young woman described as “HUGE breasted cheerful big tit girl from YLS” [i.e., Yale Law School] (Jones 421). 56 Both websites promised anonymity to the site’s contributors. But complaints against Juicy Campus eventually led to a subpoena for records from the New Jersey Attorney General, who announced an investigation of the site for possible violations of the state’s consumer fraud law. After receiving the New Jersey subpoenas, Juicy Campus lost advertising, and shut down the following year (Haynes; Reilly; Milian). As for AutoAdmit.com, several of its “John Doe” contributors were sued for defamation and invasion of privacy; the federal judge assigned to the case ruled that their right to speak anonymously was outweighed by the plaintiffs’ right to learn their identities in order to proceed with their tort claims (Doe I; Jones). 57 Although it is unlikely that either Juicy Campus or AutoAdmit.com would, under U.S. cyberlaw, be liable themselves for defamation or other torts (47 U.S.C. 230; Defterderian), they cannot maintain the promised anonymity of those who contributed defamatory comments in the face of legitimate tort or other law-enforcement claims. Judges in these and other cases have considered various factors in deciding whether or not to grant a subpoena for identifying information; most of them require at least that the anonymous speaker be given an opportunity to challenge the subpoena; some include a “balancing test” that weighs the constitutional right to anonymity against the need for disclosure (Jones; Minora; Dendrite; Doe v. Cahill) and that recognizes that sometimes— especially where corporations are seeking the identities of those who have posted critical comments about their products or services—the real purpose of seeking disclosure is to silence criticism, not to win a case in court (Jones 426).

The Future of Anonymity and Privacy in the U.S. Courts 58 As these examples show, the rights to anonymity and privacy—like almost all U.S. constitutional rights—are less than absolute. But they face new threats as the U.S. government and its partners in local law enforcement develop more sophisticated and wide-ranging methods of surveillance. For example, the U.S.A. PATRIOT Act of 2001 created a new mechanism and expanded an old one that enabled the FBI to demand records from virtually anyone if it thought those records relevant to the war against terrorism (Patriot Act). Strict “gag orders” were imposed on the person or institution that received such a demand. Librarians and bookstore owners were appalled at the prospect of government demands for records reflecting individuals’ reading choices, and with the help of the ACLU, brought legal challenges. The challenges, although successful, have resulted in little change in policy (Doe v. Ashcroft; Doe v. Gonzales; Free Expression Policy Project). The Supreme Court has not yet addressed the issue. 59 Nor will it necessarily be eager to. There are political limits to what the courts can accomplish, and U.S. history shows that the Supreme Court is often not a strong defender of constitutional rights at times that matter most. The Lamont decision came in 1965, well after the worst abuses of the anti-communist crusade of the 1950s had ended. And the civil rights-era privacy decisions, which were more timely, and were clearly responsive to urgent historical circumstances, would hardly by themselves have dismantled American apartheid or preserved the viability of dissident political communications. A political movement was necessary for that, and political leverage will be needed to rein in the surveillance society that is now proliferating in the name of national security. 60 Supreme Court decisions are also not necessarily permanent. New justices, appointed by new Presidents, can twist, ignore, avoid, or overturn them. Precedents like Lamont, condemning government-compiled lists of people who read disapproved literature, may not survive the U.S. government’s more recent claims that it needs extraordinary surveillance powers to fight terrorism.

61 Indeed, the Supreme Court has in one instance already failed to follow the precedents of Lamont and the Denver cable TV case. In the suit brought by the American Library Association to challenge the Children’s Internet Protection Act (CIPA) (discussed above), Justice Rehnquist’s opinion for the Court refused to recognize the chilling effect of forcing library patrons to make an affirmative request if they want the library to disable the Internet filtering software that CIPA requires (U.S. v. American Library Assn). And the justification for CIPA was not fear of terrorism; it was only fear of sex. The Lamont principle of privacy in one’s personal communications and reading choices was abandoned to the interests of a peculiar American notion of sexual morality. 62 Despite the importance of the U.S. courts, with their power to invalidate legislation or government action that violates constitutional rights, in the end, an informed and politically active citizenry is needed to preserve those rights. As the U.S. Appeals Court judge Learned Hand put it: “Liberty lies in the hearts of men and women. When it dies there, no constitution, no law, no court can save it” (Hand 190).