Does “The Freedom of the Press” Include a Right to Anonymity? The Original Meaning
This Article examines relevant evidence to determine whether, as some have argued, the original legal force of the First Amendment’s “freedom of the press” included a per se right to anonymous authorship. The Article concludes that, except in cases in which freedom of the press had been abused, it did. Thus, from an originalist point of view, Supreme Court cases such as Buckley v. Valeo and Citizens United v. Federal Election Commission, which upheld statutes requiring disclosure of donors to political advertising, were erroneously decided.
In Citizens United v. Federal Election Commission, the Supreme Court, by a margin of 5-4, confirmed for citizens operating under the corporate form a constitutional right to make independent expenditures in political campaigns. In doing so, the Court voided restrictions on such expenditures imposed by the federal Bipartisan Campaign Reform Act of 2002 (BCRA). Although that decision has provoked a great deal of controversy, there has been little attention focused on another Citizens United holding that should be just as controversial: the Court’s decision, despite privacy concerns, to sustain the BCRA’s provisions for mandatory disclosure of financial contributors.
