No. 16-743

In the Supreme Court of the United States

INDEPENDENCE INSTITUTE, 

a Colorado nonprofit corporation 

Appellant,

v. 

FEDERAL ELECTION COMMISSION,

Appellee. 

On Appeal from the United States District Court for 

the District of Columbia 

BRIEF OF CONSTITUTIONAL LAW, POLITICAL 

SCIENCE, AND ECONOMICS PROFESSORS AS 

AMICI CURIAE IN SUPPORT OF NOTING 

PROBABLE JURISDICTION 

 

MICHAEL W. MCCONNELL

559 Nathan Abbott Way 

Stanford, CA 94305 

(650)-736-1326 

ERIK S. JAFFE

 (Counsel of Record) 

ERIK S. JAFFE, P.C. 

5101 34th Street, N.W. 

Washington, D.C. 20008 

(202) 237-8165 

jaffe@esjpc.com 

Counsel for Amici Curiae
TABLE OF CONTENTS 

Table of Contents .......................................................... i

Table of Authorities ..................................................... ii

Interest of Amici Curiae .............................................. 1

Summary of Argument ................................................ 4

Argument ..................................................................... 7

Conclusion .................................................................. 20
ii 

TABLE OF AUTHORITIES 

Cases

Carroll v. Commissioners of Princess 

Anne, 393 U.S. 175 (1968) ..................................... 6 

Citizens United v. FEC, 558 U.S. 310 

(2010) .................................................................... 16 

Freedman v. Maryland, 380 U.S. 51 

(1965) ...................................................................... 5 

Majors v. Abell, 361 F.3d 349 (2004) .................... 4, 9 

McIntyre v. Ohio Elections Comm’n, 

514 U.S. 334 (1995) .................................... 7, 10, 11 

NAACP v. Alabama ex rel. Patterson, 

357 U.S. 449 (1958) .......................................... 7, 16 

New York Times Co. v. Sullivan, 

376 U.S. 254 (1964) ........................................ 10, 17 

Riley v. National Fed’n of the Blind, 

487 U.S. 781 (1988) .............................................. 14 

Shuttlesworth v. City of Birmingham, 

394 U.S. 147 (1969) ................................................ 5 

Thomas v. Chicago Park Dist., 534 U.S. 

316 (2002) ............................................................... 5 

Statutes

52 U.S.C. § 30104(f) ............................................... 7, 8 
iii 

Other Authorities

Akhil Reed Amar, AMERICA’S UNWRITTEN CONSTITUTION 53-54 (2012) .......................... 12 

Akhil Reed Amar, Fourth Amendment 

First Principles, 107 HARV. L. REV. 

757 (1994) ............................................................. 12 

Paul Finkelman, ed., A BRIEF 

NARRATIVE OF THE CASE AND TRYAL OF 

JOHN PETER ZENGER, PRINTER OF THE 

NEW YORK WEEKLY JOURNAL (1997) ................... 11 

Gerald Gunther, ed., JOHN MARSHALL’S 

DEFENSE OF MCCULLOCH V.

MARYLAND (1969) ................................................. 10 

Daniel Walker Howe, WHAT HATH GOD 

WROUGHT: THE TRANSFORMATION OF 

AMERICA, 1815-1848 (2007) .................................. 18 

John D. Inazu, LIBERTY’S REFUGE: THE 

FORGOTTEN FREEDOM OF ASSEMBLY

(2012) .................................................................... 12 

James Madison, Report on the Virginia 

Resolutions (1800) (available at 

http://press-pubs.uchicago.edu/founder

s/documents/amendI_speechs24.html) 

(viewed Jan. 8, 2017) ........................................... 12 

Pauline Maier, RATIFICATION (2010) ................. 10, 18 

David M. Primo, Information at the 

Margin: Campaign Finance 

Disclosure Laws, Ballot Issues, and 

Voter Knowledge, 12 ELECTION L.J. 

114 (2013) ............................................................. 15 
iv 

Scipio, On the Liberty of the Press (Part 

I), NEW-JERSEY GAZETTE, Mar. 30, 

1784 ...................................................................... 15 

Scipio, On the Liberty of the Press (Part 

IV), NEW-JERSEY GAZETTE, Apr. 26, 

1784 ...................................................................... 11 

Robert L. Stern, Eugene Gressman, 

Stephen M. Shapiro & Kenneth S. 

Geller, SUPREME COURT PRACTICE

(7th ed. 1993) ........................................................... 9 

Fred Smith, Bullying Culture, 

CLAREMONT REVIEW OF BOOKS 

(DIGITAL), Dec. 19, 2016 (available at 

http://www.claremont.org/crb/basicpa

ge/bullying-culture) (viewed Jan. 6, 

2017) ............................................................... 17, 19 

Kimberley Strassel, THE INTIMIDATION 

GAME (2016) ........................................................... 4 

Dwight L. Teeter, Press Freedom and 

the Public Printing: Pennsylvania, 

1775-83, 45 JOURNALISM Q. 445 (1968) ............... 12 
INTEREST OF AMICI CURIAE 1

Amici curiae are all political science, economics, or 

constitutional law professors who have taught or 

written on the First Amendment. They join this brief 

in their individual capacities, with institutional affiliations noted for identification purposes only. 

Jonathan H. Adler is the inaugural Johan Verheij 

Memorial Professor of Law and Director of the Center 

for Business Law and Regulation at the Case Western Reserve University School of Law where he 

teaches courses in Constitutional and Administrative 

law, among other subjects. 

Ashutosh Bhagwat is the Martin Luther King, Jr. 

Professor of Law at the University of California, Davis School of Law. He teaches Constitutional and 

Administrative law, and his scholarship focuses on 

the First Amendment and its relationship to representative democracy. 

Michael Dimino is a Professor of Law at the Widener University Commonwealth Law School. He 

teaches the First Amendment, Election Law, and 

Constitutional Law, among other subjects. His publications include several articles dealing with the First 

Amendment and election law, and he has co-authored 

two books in the field: VOTING RIGHTS AND ELECTION 

 

1 No counsel for a party authored this brief in whole or in 

part, nor did any person or entity, other than amici or their 

counsel, make a monetary contribution intended to fund the 

preparation or submission of this brief. This brief is submitted 

pursuant to the written consent of all parties. Appellee was notified of amici’s intent to file this brief more than 10 days prior 

to its filing date. 
2 

LAW (2d ed. 2015) and UNDERSTANDING ELECTION 

LAW AND VOTING RIGHTS (2016). 

Patrick Garry is a Professor of Law at the University of South Dakota Law School. He has a Ph.D. in 

Constitutional History and has written twelve books 

in the areas of law, history, politics, and religion, and 

numerous articles on the First Amendment. 

Joel M. Gora is a Professor of Law at Brooklyn 

Law School. He is an expert on campaign finance law 

matters, working in the field as both an advocate and 

an academic. Prior to joining the Brooklyn Law 

School faculty, Professor Gora spent almost ten years 

as a full-time lawyer with the American Civil Liberties Union, working on numerous Supreme Court 

cases, including Buckley v. Valeo. He has worked, on 

behalf of the ACLU, on almost every one of the important campaign finance cases to come before the 

Court. 

Michael W. McConnell is the Richard and Frances 

Mallery Professor and Director of the Constitutional 

Law Center at Stanford Law School, and a Senior 

Fellow at the Hoover Institution. From 2002 to the 

summer of 2009, he served as a Circuit Judge on the 

United States Court of Appeals for the Tenth Circuit. 

He has published widely in the fields of constitutional 

law and theory, especially the First Amendment, 

equal protection, and the founding. 

Jeffrey D. Milyo is a Professor of Economics at the 

University of Missouri-Columbia. He is also a Senior 

Fellow at the Cato Institute. His areas of interest include campaign finance and elections and his research and writing on these and other subjects have 
3 

been published by a broad array of academic and 

popular journals. 

Michael C. Munger is a Professor of Political Science and Director of the Philosophy, Politics, and 

Economics Program of the Department of Political 

Science at Duke University. He has a Ph.D. in economics from Washington University in St. Louis, has 

taught economics at Dartmouth, and taught political 

science at Texas, North Carolina, and Duke. He has 

written widely on campaign finance, disclosure, and 

other First Amendment issues, and testified before 

the U.S. Senate Rules and Administration Committee 

in hearings on the Bipartisan Campaign Reform Act 

in 2001. 

David M. Primo is the Ani and Mark Gabrellian 

Professor and an associate professor of political science and business administration at the University of 

Rochester, where he serves as the Director of Graduate Studies in the Political Science Department. He 

is also a senior affiliated scholar with the Mercatus 

Center at George Mason University. His quantitative 

research in the area of campaign finance is widely 

cited in academic publications and policy debates and 

focuses on the impact of campaign finance laws, including campaign finance disclosure rules, on electoral competitiveness, turnout, voter knowledge, corporate financial performance, and perceptions of government. 

Nadine Strossen is the John Marshall Harlan II 

Professor of Law at New York Law School. She has 

written, lectured, and practiced extensively in the areas of constitutional law, civil liberties, and international human rights. From 1991 through 2008 she 
4 

served as president of the American Civil Liberties 

Union, the first woman to head the nation’s largest 

and oldest civil liberties organization. Professor 

Strossen is currently a member of the ACLU’s National Advisory Council. 

Amici are interested in this case because it concerns the protection of an intrinsic aspect of the freedoms of speech and of the press that has been receiving diminishing protection in the lower courts – anonymity. From a textual, historical, and practical perspective, anonymity is a significant right that was 

considered part of, and that remains important to, 

the expressive freedoms protected by the First 

Amendment. 

SUMMARY OF ARGUMENT 

 This Court should note probable jurisdiction and 

direct full briefing and argument in this case. The 

question is of great importance because disclosure 

coupled with public harassment is increasingly used 

as a means of suppressing unpopular opinion. Kimberley Strassel, THE INTIMIDATION GAME (2016). Yet, 

as a distinguished lower court judge has commented, 

the tension between this Court’s anonymity and disclosure precedents “makes it impossible” for lower 

courts to resolve these cases. Majors v. Abell, 361 

F.3d 349, 355-58 (2004) (Easterbrook, J., dubitante). 

Perhaps most of all, this Court would benefit from serious briefing and argument regarding the role of 

anonymous and pseudonymous speech as part of the 

original understanding of the freedom of speech and 

of the press. 
5 

The right to speak and publish anonymously or 

pseudonymously can be conceived as either an intrinsic part of the freedom of speech and of the press (and 

of assembly/association as well), or as a necessary 

prophylactic principle to guard against the chilling effect on unpopular speech of public exposure and possible reprisal. 

If the right is intrinsic, then it follows that there 

can be no public right in the informational benefit of 

disclosure. Any disclosure must require specific regulatory justification unrelated to the communicative 

effects of disclosure. (Prevention of corruption or 

identification of criminal wrongdoing are plausible 

legitimate interests that might support compelling 

disclosure under limited circumstances.) These amici

believe a strong case can be made that the freedoms 

of speech, press, and association/assembly, as understood at the Founding, included anonymity. 

Even if anonymity is understood only as a prophylactic protecting a core right to speak and publish, the 

approach of the court below (and of many state and 

lower federal courts) lacks coherence and is inadequately protective. The court below held that the 

right of anonymity is trumped by an interest in 

providing the electorate with information regarding 

the source of a communication, except where there is 

an as-applied showing of a realistic threat of harassment or retaliation. JS App. 21 n. 5, 31. That presents two insuperable difficulties. First, proof takes 

time. As this Court has recognized in other contexts, 

Thomas v. Chicago Park Dist., 534 U.S. 316, 321 

(2002); Freedman v. Maryland, 380 U.S. 51, 55, 58-60 

(1965); Shuttlesworth v. City of Birmingham, 394 
6 

U.S. 147, 163 (1969); Carroll v. Commissioners of 

Princess Anne, 393 U.S. 175, 182 (1968), speech typically must be timely to be effective. If speakers with a 

well-founded fear of retaliation must prove the reasonableness of that fear in court, their speech often 

will be suppressed for years. Full briefing and argument provide an opportunity for this Court to consider requiring, at a minimum, procedural safeguards 

like those in Thomas and Freedman, including tight 

time frames and an appropriate burden of proof, before governments could expose speakers to the 

chilling effect of disclosure. 

Second, requiring speakers to prove they face a realistic threat of retaliation is asking them to prove 

the unknowable. If there has been no record of retaliation – yet – their fears will appear speculative; if 

there is retaliation, it is too late. Advocacy on a particular topic may seem innocuous today, but could 

lead to job loss or death threats years later – depending on shifts in politics and groupthink. Moreover, 

some forms of retaliation are shrouded in secrecy. No 

one can ever know whether regulatory discretion is 

affected by the petty official’s knowledge of a regulated party’s speech on a controversial topic. A nonprofit supporting an unpopular cause may find itself 

subject to an IRS audit or a building code investigation, for example, but absent a smoking gun may 

have a hard time proving the connection. Full briefing and argument can illuminate this Court’s consideration of where the burden of proof should lie and 

how powerful any evidence of potential retaliation 

must be. In these amici’s view, if we care about the 

chilling effect on speech under the First Amendment, 
7 

the dangers of retaliation must be understood realistically, with genuine consideration for the risks a 

speaker faces. 

Under either view – anonymity as an intrinsic part 

of the freedoms of speech, press, and assembly/association or anonymity as a prophylactic 

against the chilling effect of potential retaliation – 

the district court’s casual disregard of the importance 

of anonymity should not be allowed to stand without 

full examination by this Court. 

Summary treatment of this case would be unresponsive to the gravity of this question, the complexity of the intersecting precedent surrounding it, and 

the significant history and original understanding of 

the freedoms protected by the First Amendment. 

ARGUMENT 

The right to anonymity both for individual speech 

and in association with others has long been understood as an important and intrinsic component of the 

freedoms protected by the First Amendment. McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 341-43 

(1995); NAACP v. Alabama ex rel. Patterson, 357 U.S. 

449, 462-63, 466 (1958). This case raises substantial 

questions regarding the protection of that right. 

The court below rejected an as-applied challenge to 

a disclosure requirement, 52 U.S.C. § 30104(f), that 

would have forced appellant, a non-profit organization, to reveal certain of its donors if it ran a proposed 

issue advertisement concerning pending legislation. 

Jurisdictional Statement Appendix (JS App.) at 35. 

The proposed ad, to be run in Colorado, concluded 
8 

with an exhortation to contact that state’s Senators 

regarding the legislation, and provided their names 

and a phone number. JS at 6-7. Because one of the 

Senators was up for re-election within sixty days of 

the proposed air date of the ad, the mere mention of 

his name made the ad an “electioneering communication” and appellant would have been forced to disclose any donors who contributed $1000 or more for 

the proposed ad. 52 U.S.C. § 30104(f); see JS at 8. 

Amici agree with appellant that the decision below 

is incorrect and that, at a minimum, BCRA’s electioneering communication disclosure requirements 

should be limited to communications that are at least 

the functional equivalent of express advocacy of the 

election or defeat of a candidate, where the anticorruption rationale for regulation is at least plausible. JS at 4, 13, 22-23. In this as-applied challenge, 

the bare mention of an incumbent Senator’s name in 

the context of discussing legislation pending before 

the Senate was neither express advocacy nor its 

equivalent, and had no reference, positive or negative, to the pending re-election campaign. Appellant 

makes a substantial and persuasive case as to why 

the decision below is an incorrect application of this 

Court’s precedents and should be reversed. 

Amici will not reiterate appellant’s substantive 

points but will instead focus on the importance of 

these issues and why this Court should note probable 

jurisdiction and take full briefing and argument in 

this case. 

First, because this is an appeal, any disposition of 

this case will have precedential weight. Robert L. 

Stern, Eugene Gressman, Stephen M. Shapiro & 
9 

Kenneth S. Geller, SUPREME COURT PRACTICE §§ 4.28, 

5.17, pp. 215-17, 264-65 (7th ed. 1993). Unlike denial 

of a petition for a writ of certiorari, which implies no 

view on the merits, an affirmance here will be viewed 

by the lower courts as an endorsement of their oftenlackadaisical review of disclosure requirements. JS 

at 28-31 (describing minimal scrutiny often applied to 

disclosure requirements). To dismiss for want of a 

substantial federal question will tell the state and 

lower federal courts that the right of speech anonymity is not even a substantial constitutional question. 

Surely that is not so. As noted in the Jurisdictional 

Statement, at 19-22, 28-30, reconciling tensions in 

the tangle of precedent on campaign finance and disclosure can be difficult and can lead courts astray. 

Occasionally such difficulty can give pause even to 

the most astute jurists. See, e.g, Majors v. Abell, 361 

F.3d at 355-58 (Easterbrook, J., dubitante) (discussing tension in Supreme Court’s anonymity and disclosure precedents that “makes it impossible for 

courts at our level to make an informed decision – for 

the Supreme Court has not told us what principle to 

apply,” and failing to understand how decision upholding state disclosure law “can be reconciled with 

established principles of constitutional law”). This 

Court’s more thorough consideration and guidance is 

thus needed and appropriate. 

Second, in casually accepting disclosure requirements, the lower courts have lost sight of the nature 

of anonymity as an intrinsic part of the freedoms of 

speech and of the press protected by the First 

Amendment. Rather than a mere prophylactic addon to other expressive freedoms, anonymity was part 
10 

and parcel of the original understanding of those 

freedoms. 

There can be no doubt that individuals who pool 

their resources to purchase advertisements on matters of public concern are exercising the freedoms of 

speech and press. This Court’s signal decision on 

freedom of the press, New York Times Co. v. Sullivan, 

376 U.S. 254, 256-57 (1964), involved an advertisement purchased by a group of southern ministers and 

civil rights leaders. The proposed advertisement by 

appellant Independence Institute stands on the same 

constitutional footing. 

As has frequently been noted, advocates for and 

against ratification of the Constitution most often did 

so under pseudonyms. McIntyre, 514 U.S. at 360, 368 

(Thomas, J., concurring in the judgment); see Pauline 

Maier, RATIFICATION 71-72 (2010) (noting that the 

use of pseudonyms was “standard practice”). More 

than 200 years later, we still read the words of “Publius,” “Brutus,” “Agrippa,” “Centinel,” and “the Federal Farmer.” The identities of some of these writers 

remain unknown to this day. The practice of pseudonymous writing extended to significant debates in 

the early Republic. Examples include the “Pacificus”-

“Helvidius” debates (Hamilton vs. Madison) and John 

Marshall’s debate as “A Friend of the Constitution” 

against his adversaries “Amphictyon” and “Hampden.” Gerald Gunther, ed., JOHN MARSHALL’S DEFENSE OF MCCULLOCH V. MARYLAND 1-2 (1969). 

Advocates of the freedom of the press, such as William Livingston, who wrote (under a pseudonym) a 

four-part essay entitled “On the Liberty of the Press,” 

typically regarded anonymity as part and parcel of 
11 

the right. “[P]ray may not a man, in a free country, 

convey thro’ the press his sentiments on publick 

grievances * * * without being obliged to send a certified copy of the baptismal register to prove his name.” 

Scipio [William Livingston], On the Liberty of the 

Press (Part IV), NEW-JERSEY GAZETTE, Apr. 26, 1784. 

Printers both in Britain and in the colonies, later 

states, formed the first line of defense against assaults on this right. Not unlike reporters today who 

go to jail for months rather than reveal their sources, 

founding-era printers would endure prosecutions for 

seditious libel rather than reveal the identity of the 

writers of essays they had printed. McIntyre, 514 

U.S. at 361 (Thomas, J., concurring in the judgment). 

In the most famous seditious-libel case in America 

prior to the First Amendment, the printer John Peter 

Zenger refused to divulge the author (who happened 

to be Gouverneur Morris’s grandfather) of essays criticizing the royal governor, and stood trial instead. See

Paul Finkelman, ed., A BRIEF NARRATIVE OF THE CASE 

AND TRYAL OF JOHN PETER ZENGER, PRINTER OF THE 

NEW YORK WEEKLY JOURNAL (1997). A similar trial in 

Britain was even more notorious. The incendiary parliamentarian John Wilkes wrote a scandalous essay, 

North Briton No. 45, under an assumed name. Everyone knew Wilkes had written it, but in order to prosecute the author for seditious libel, the author’s identity had to be proved in court. The printer refused to 

identify Wilkes as the author, despite the threat of 

imprisonment. The formal law of Britain did not protect Wilkes’s anonymity, but Americans rejoiced in 

Wilkes’ cause. As Professor Akhil Amar has observed, 

“’Wilkes and Liberty’ became a rallying cry for all 
12 

who hated government oppression,” and Wilkes’ case 

became a “‘cause celebre’ in the colonies”; it was familiar to “every schoolboy in America.” Akhil Reed 

Amar, Fourth Amendment First Principles, 107 HARV.

L. REV. 757, 772 & n. 54 (1994). 

The Continental Congress debated whether it 

could seek the identity of “Leonidas” (Benjamin 

Rush), who had published an essay critical of the 

Congress. After a debate centering on the idea that 

the freedom of the press protected the anonymity of 

the writer, the Congress roundly rejected this effort 

at mandatory disclosure. Dwight L. Teeter, Press 

Freedom and the Public Printing: Pennsylvania, 

1775-83, 45 JOURNALISM Q. 445, 451 (1968); see McIntyre, 514 U.S. at 361-362 (Thomas, J., concurring in 

the judgment). After adoption of the First Amendment, James Madison led the effort in Congress to 

protect the right of the Democratic-Republican clubs 

to meet secretly. See John D. Inazu, LIBERTY’S REFUGE: THE FORGOTTEN FREEDOM OF ASSEMBLY 26-29 

(2012). Never in the founding era did the government 

succeed in compelling disclosure of the identity of 

persons exercising their rights of speech, press, or association/assembly. 

James Madison stressed that the First Amendment, properly understood, must be seen in light of 

the “practice in America” rather than the formal 

judge-made law of England. James Madison, Report 

on the Virginia Resolutions (1800) (available at 

http://press-pubs.uchicago.edu/founders/documents/a

mendI_speechs24.html) (viewed Jan. 8, 2017); see 

generally Akhil Reed Amar, AMERICA’S UNWRITTEN 

CONSTITUTION 53-54 (2012) (discussing how freedom 
13 

of the press in America exceeded such freedom in 

England, and Madison’s emphasis on how the more 

expansive American freedom helped form and inform 

the Constitution). The practice in America was that 

writers could publish without exposing their names 

and thus their persons and property to abuse. This 

Court would benefit from the in-depth discussion of 

this historical background that could be provided on 

full briefing in this case. 

Third, part of the reason for the diffident protection of anonymity in some courts may be that anonymity is often analyzed as only a mere means to an 

end – a way of avoiding chill of the substantive 

speech itself – rather than as a directly protected 

component of the “freedom” of speech. Such a purely 

functional approach encourages case-by-case balancing of anonymity against non-constitutional information interests, rather than treating anonymity as a 

right to be protected by more rigorous scrutiny. See, 

e.g., JA App. at 24, 31 (opinion below discussing information interests and deeming the ability of voters 

to “evaluate the message more critically” to be sufficient to justify disclosure, which is viewed as a less 

restrictive alternative to restricting speech); JS at 2, 

21-23 (criticizing the treatment of “‘speech, a constitutional right, and transparency, an extraconstitutional value, as equivalents.’ [citation omitted]”; court’s exaggerated “conception of the informational interest is boundless”). But if there is a presumptive constitutional right to publish one’s views 

on matters of public concern anonymously or pseudonymously, there cannot be a generalized public 

right to disclosure. It would be like saying there is a 
14 

constitutional right against self-incrimination, but 

that right must be balanced against the public’s right 

to find out who committed crimes. And to the extent 

there is an inchoate public “interest” in obtaining information about speakers, defining that interest in 

terms of the communicative qualities or impact of the 

speech flies in the face of the First Amendment’s entrusting choices about such matters to the speaker 

and the audience, not the state. Such a claimed interest would not merely be weak or uncompelling, see 

also infra at 15 n. 2, it would be illegitimate. Any requirement of disclosure would have to be justified by 

specific regulatory objectives unrelated to communicative impact, such as the prevention of corruption or 

the identification of a wrongdoer. 

The district court’s reliance on the value of disclosure to improve the public’s evaluation of the argument proves too much. The public’s ability to evaluate 

arguments might be enhanced by any number of requirements: the speaker could be required to cite his 

sources for factual statements, the speaker could be 

required to identify any financial interests he may 

have in the argument, the speaker could be required 

to give information about his profession, his partisan 

affiliation, or his religion. All these things might 

make it easier for the public to decide what weight to 

give the speaker’s arguments. But that is not our 

First Amendment tradition. See Riley v. National 

Fed’n of the Blind, 487 U.S. 781, 796-98 (1988). We 

allow speakers to decide what to say and what not to 

say. Speaking anonymously is fundamentally intertwined with all other aspects of speech, and is no different than the myriad other choices regarding what 
15 

words to use, what arguments to make, and what to 

leave out. The lower court’s blithe acceptance of the 

notion that the government has near-plenary power 

to compel additional information that might be valuable to the public in evaluating an argument has no 

stopping point.2 

The founding generation did not value the right to 

publish one’s views anonymously or pseudonymously 

as merely a prophylactic against the risk of harassment or reprisal. The founding generation held to an 

ethic of public discourse that maintained that arguments should be evaluated on the cogency of their 

substance and not the status (or disrepute) of their 

authors. For example, an essay by “Scipio” entitled 

On the Liberty of the Press (Part I), NEW-JERSEY GAZETTE, Mar. 30, 1784, noted various reasons why an 

author might choose anonymity. “Sometimes his 

publications may lose the effect they would otherwise 

have produced, merely from his being known to be 

the author.” Scipio asked, rhetorically: “Is a man’s 

reasoning either the better or the worse for its being 

communicated without a name?” In particular, anonymity enabled public figures to participate in vigorous public debate without implicating their official 

positions. As Chief Justice, Marshall could not have 

 

2 And to the extent there is any valid informational interest in 

compelling disclosure, courts have ample reason to doubt that 

such interest is significant, much less important or compelling. 

See, e.g., David M. Primo, Information at the Margin: Campaign 

Finance Disclosure Laws, Ballot Issues, and Voter Knowledge, 12 

ELECTION L.J. 114 (2013) (concluding, based on survey analysis, 

that “disclosure information provides few marginal benefits for 

voters, calling into question the informational rationale for disclosure laws”). 
16 

written his responses to Amphictyon and Hampden 

in his own name; Hamilton and Madison could not 

have taken their argument over the Neutrality Proclamation to the public in their own names without 

generating confusion over the position of the Washington Administration. Similarly today, citizens may 

refrain from speaking not because of fear of overt retaliation, but because they do not wish their views to 

be imputed to their employers or their offices. Under 

the holding of the court below, none of these considerations, so important to the founding generation, is 

given any weight. 

It is the speaker’s right to decide what information 

about himself or herself to reveal, just as it is the 

speaker’s right whether to use understatement or hyperbole, satire or gravitas, or any other of the various 

choices speakers must make when communicating 

their ideas. 

Fourth, even considering a prophylactic understanding of the right to anonymity, current jurisprudence places too much emphasis on the ability of the 

speaker to prove a reasonable probability of threats, 

harassment, or reprisals resulting from from disclosure. NAACP, 357 U.S. at 462-63; Citizens United v. 

FEC, 558 U.S. 310, 370 (2010). Placing the burden of 

proof on a speaker who prefers to remain anonymous 

both gets it backwards and inevitably under-protects, 

and hence chills, speech. This case is a prime example. Appellant sought to run a genuine issue ad 

many months ago, when that ad would have been 

timely. It recognized that it could not surmount the 

legal and evidentiary hurdles of demonstrating an 

identifiable threat of retaliation, but in the real world 
17 

its donors were not willing to assume the risk entailed by forfeiture of their anonymity. JS App. at 21 

n. 5 (noting stipulation that appellant “does not rely 

upon the probability that the group’s members would 

face threats, harassment, or reprisals if their names 

were disclosed”). This is practically the textbook definition of “chilling effect.” If the mere threat of libel 

suits is enough to chill the speech of media giants like 

the New York Times, see New York Times v. Sullivan, 

376 U.S. at 278, imagine the risk calculus of an ordinary citizen who is thinking of speaking out on a controversial subject. 

Appellant was thus forced to go to court to defend 

its donors’ anonymity. Regardless of the outcome of 

that procedure, the very process made it impossible 

for appellant to run the ad at the time it would have 

had an impact. The point is that speech and politics 

are fluid and constantly changing, and the need to 

obtain pre-approval for anonymity imposes an obstacle to the dissemination of speech that is responsive 

to the issues and actions of the day. 

Just because a speaker cannot confidently predict, 

much less prove to a court’s satisfaction, the adverse 

consequences that might flow from disclosure does 

not mean her speech will not be chilled. While one 

might hope for bold speakers willing to take unquantifiable risks of public or government disapproval and 

harassment, the reality is that retaliation as a means 

of suppressing speech is a powerful and increasingly 

widespread tactic. See, e.g., Fred Smith, Bullying 

Culture, CLAREMONT REVIEW OF BOOKS (DIGITAL), 

Dec. 19, 2016 (reviewing THE INTIMIDATION GAME by 

Kimberley Strassel; noting that “the more serious 
18 

threats to free speech often come from disclosure 

mandates that dissuade donors who seek anonymity 

or fear retaliation. “Shaming” tactics, for example, 

accuse donors of supporting some politically incorrect 

policy positions, and entail boycotts, picketing (sometimes at the donor’s home), and attacks that harm 

reputations and sometimes threaten targets’ physical 

safety.”) (viewed Jan. 6, 2017, available at 

http://www.claremont.org/crb/basicpage/bullyingculture); Maier, RATIFICATION 71-72 (noting that “vicious denunciation” and “threats” against antifederalist critics of the proposed constitution “encouraged 

writers to continue the standard practice of publishing essays under pseudonyms”). 

Arguably the most successful assault on freedom of 

speech and press in American history took the form of 

a disclosure requirement. In the wake of abolition of 

slavery in the British empire, American anti-slavery 

advocates thought the time was ripe for reconsidering 

the legality of slavery in the southern states. To prevent the distribution of abolitionist literature in the 

South, President Andrew Jackson’s post office adopted a rule that such literature could be delivered only 

to recipients willing to request publicly to receive it. 

Daniel Walker Howe, WHAT HATH GOD WROUGHT:

THE TRANSFORMATION OF AMERICA, 1815-1848, at 428

(2007). Thus, harnessing the power of the mob, the 

anti-slavery propaganda effort was shut down – not 

through censorship, but through disclosure laws. 

Perhaps times have changed, but we doubt it. The 

internet is alive with discourse identified only by user 

names, the twenty-first century analogs to “Publius.” 

These amici do not take the position that anonymous 
19 

speech is better, or that it is worse. We contend that 

the question must be resolved by speakers and their 

audiences – not by the coercive apparatus of the 

state. It is no secret that disclosure requirements are 

sometimes proposed with the specific intent of silencing or undermining certain voices. That these requirements are nominally viewpoint-neutral does not 

make them any less potent. 

The sad fact in today’s world is that people whose 

viewpoints are displeasing to the modern mob (namely, the bullying power of social media), or to bureaucracies with discretionary power over their lives or 

businesses, suffer a grave risk if they communicate 

those unpopular views without the protective cloak of 

anonymity. Often, they will take the safer course, and 

hold their tongues. 

Whether any specific speaker or donor can predict 

retaliation for a particular instance of speech or association is largely irrelevant to an overall risk assessment when such targeted suppression has become the 

modus operandi in many quarters. Smith, Bullying 

Culture, supra. Even a partially prophylactic approach to anonymity, therefore, should be mindful of 

how the risks from disclosure chill speech and association and should not place the burden of proving adverse consequences on the speaker. 

In sum, each of the above considerations is important to the issue of anonymity and disclosure and 

deserves more in-depth treatment via full briefing. 

Summary disposition of this case would do a disservice to the important rights involved and the complexity of the issues. 
20 

Amici thus respectfully encourage this Court to 

note probable jurisdiction and set this case for full 

briefing and argument. 

CONCLUSION 

For the foregoing reasons, this Court should note 

probable jurisdiction and direct full briefing and argument in this appeal. 

 Respectfully submitted, 

MICHAEL W. MCCONNELL

559 Nathan Abbott Way 

Stanford, CA 94305 

(650) 736-1326 

ERIK S. JAFFE

 (Counsel of Record) 

ERIK S. JAFFE, P.C. 

5101 34th Street, N.W. 

Washington, D.C. 20008 

(202) 237-8165 

jaffe@esjpc.com 

Counsel for Amici Curiae

Dated: January 9, 2017