Document Type

Article

Publication Date

2007

Abstract

This Article aims to assist lawmakers and courts to find the proper balance between the right to speak without disclosing one's true identity and the rights of those injured by anonymous speech. To this end, we present both a positive and a normative analysis of anonymous speech. In the positive analysis, we examine the private costs and benefits that speakers encounter when deciding whether to publish with or without attribution; among these costs and benefits are the potentially differing responses of audiences to attributed and nonattributed speech. For example, speakers may feel less vulnerable to retaliation when they speak anonymously, and thus may be more apt both to speak truthfully and to engage in tortious or harmful speech. At the same time, audiences are likely to discount the value of nonattributed speech, thus mitigating some (but not all) of anonymous speech's potential harm. In theory, audiences could be either better or worse off under a regime that grants strong protection to anonymous speech, as opposed to one that grants only weak protection, depending upon which effect-the production of core socially valuable speech, or the production of more harmful, though discounted, speech-predominates. Put another way, speakers' pursuit of the optimal balance of private costs and benefits in a regime that protects anonymity may produce outcomes that diverge from the optimal balance of social costs and benefits, as viewed from the standpoint of the audience. The extent of the divergence is unclear, however, and thus the implications of the positive analysis standing alone are indeterminate.

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