In McIntyre v. Ohio Elections Commission (1995) the Supreme Court overturned a statute requiring any person who prints a notice or flyer promoting a candidate or an issue to identify the communication’s author by name.
Justice John Paul Stevens, writing for the majority, grounded his opinion in an account of meaning he takes from an earlier case (First National Bank of Boston v. Bellotti): “The inherent worth of . . . speech in terms of its capacity for informing the public does not depend upon the identity of its source, whether corporation, association, union, or individual.” Or, in other words, a writing or utterance says what it says independently of who happens to say it; the information conveyed does not vary with the identification of the speaker.
There are at least two problems with this reasoning. First, it is not true that a text’s meaning is the same whether or not its source is known. Suppose I receive an anonymous note asserting that I have been betrayed by a friend. I will not know what to make of it — is it a cruel joke, a slander, a warning, a test? But if I manage to identify the note’s author — it’s a friend or an enemy or a known gossip — I will be able to reason about its meaning because I will know what kind of person composed it and what motives that person might have had.
In the same way, if I am the recipient of a campaign message supporting a candidate or a policy, my assessment of what I am reading or hearing will depend on my knowledge of the sender. Is he, she or it an industry representative, a lobbyist, the A.C.L.U., the Club for Growth? The identity of the speaker is part of the information and is therefore part — a large part — of the meaning. (“Consider the source” is not only commonplace advice; it is a theory of interpretation.)
The practice of withholding the identity of the speaker is strategic, and one purpose of the strategy (this is the second problem with anonymity) is to avoid responsibility and accountability for what one is saying. Anonymity, Martha Nussbaum, a professor of law and philosophy at the University of Chicago observes, allows Internet bloggers “to create for themselves a shame-free zone in which they can inflict shame on others.” The power of the bloggers, she continues, “depends on their ability to insulate their Internet selves from responsibility in the real world, while ensuring real-world consequences” for those they injure.
Nussbaum is writing as a co-editor of, and contributor to, a new set of essays on the dark side of the Internet titled “The Offensive Internet.” The question that drives the volume is “what can be done about irresponsible information” spread by the Internet, a medium that allows slander to “be done with a few keystrokes, with complete anonymity, and . . . with no fear that the Internet provider on whose website the slur is found will somehow be held responsible for incorrect . . . or defamatory statements”? In the course of the volume the Internet is characterized as a cesspool, a porn store, a form of pinkeye, a raunchy fraternity, a graffiti–filled bathroom wall, a haven for sociopaths, and the breeder of online mobs who are no better than “masked Klan members” in their determination to “interfere with victims’ basic rights.”
The authors make these charges against the background of the standard honorific description of the Internet: it is the ultimate realization of “the marketplace of ideas,” that non-physical space dedicated “to the emergence of truth.” Cass Sunstein invokes this hoary metaphor only to call it into question. Rumors cascade, Sunstein explains, when someone relies on what someone else has said and then spreads a falsehood as truth. The Internet multiplies the effect exponentially: an “initial blunder . . . can start a process by which a number of people participate in creating serious mistakes.” Rather then producing truth, the free and open marketplace of the Internet “will lead many people to accept damaging and destructive falsehoods,” and unless there is “some kind of chilling effect on false statements,” the “proper functioning of democracy itself” may be endangered.