The Volokh Conspiracy

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How Manuel Talley's Handbills Paved the Way for Anonymous Speech Protections

A civil rights activist's legal battle for anonymity shaped First Amendment precedent.


My book explains the strong, but not absolute, protections that U.S. courts provide to anonymous speech. Those safeguards originated from a dispute over civil rights activist Manuel Talley's March 22, 1958, distribution of handbills outside the A&D Market in Los Angeles. The handbills called for a boycott of the store, alleging that the retailer sold products from manufacturers that did not employ racial minorities.

The handbills were signed only with the name of Talley's group, National Consumers Mobilization, in violation of a Los Angeles ordinance that required handbills to include the author's real name. Talley was arrested and charged. At trial, Talley argued that the market also distributed leaflets that did not include the author's name. This argument did not persuade the judge, who convicted Talley of a misdemeanor and fined him. The California Court of Appeal affirmed the conviction, but two judges struggled to reconcile the fine with a recent U.S. Supreme Court ruling that blocked Alabama state officials' efforts to force the NAACP to disclose its membership lists.

The southern California chapter of the American Civil Liberties Union took on Talley's case and convinced the US Supreme Court to grant certiorari. In its brief, the ACLU traced the history of anonymity back to the Renaissance and Reformation, when writers faced "severe penalties," through the anonymous works of the eighteenth century to modern periodicals, such as Foreign Affairs, which routinely used pseudonyms. The right to anonymous speech, the lawyers wrote, is particularly important for social reformers. "People usually resent change, and greet it only with hostile reluctance," they wrote. "For this reason, ideas which tamper with deep-rooted prejudices may expect to encounter serious—and even violent—opposition. The simplest way to discourage such opinions, therefore, is to expose their proponents to a resentful community."

A barrier to the NAACP's argument for anonymous speech rights was Lewis Publishing Co. v. Morgan, a 1913 case in which the Supreme Court affirmed a federal law that required publications sent via the mail to file with the postmaster a sworn statement including the names of the editor, along with other information. At oral argument, Justice Felix Frankfurter asked Hugh R. Manes, a lawyer for Talley, whether Lewis presents a problem for his argument.

"I say, Your Honor, that we do not contend that the right to anonymity is an unlimited right by any means," Manes responded. "We say that there are times and circumstances when . . . the State has the right to limit anonymity. We say only that it cannot be an unlimited right to suppress anonymity or the right to anonymity so completely and so broadly as is done here. Lewis, Manes said, involved "a commercial profit-making venture which is very much unlike our particular leaflet here."

That did not appear to satisfy Frankfurter. "If Tom Paine had published his Common Sense as a periodical and sought to send it through the mail," Frankfurter reasoned, "he would under the Lewis case, as I understand it, have to disclose who owns his paper." Manes pointed out that disclosing the identity of the owner and publisher of the publication is not necessarily the same thing as disclosing the writer. Frankfurter responded that those are the "people who really run the show and own it."

Despite some justices' apparent skepticism of Manes's argument, his client prevailed. In a 6–3 ruling, the Supreme Court struck down the Los Angeles ordinance as unconstitutional. In the majority opinion, First Amendment stalwart Justice Hugo Black noted that in a 1938 case, Lovell v. Griffin, the Court had struck down a Georgia ordinance that required a license to distribute literature. Black reasoned that the requirement for identification in the Los Angeles ordinance "would tend to restrict freedom to distribute information, and thereby freedom of expression."

His opinion contained the Supreme Court's first extended discussion of the historical justification for protecting anonymous speech. "Before the Revolutionary War colonial patriots frequently had to conceal their authorship or distribution of literature that easily could have brought down on them prosecutions by English-controlled courts," Black wrote. "Along about that time, the Letters of Junius were written and the identity of their author is unknown to this day. Even the Federalist Papers, written in favor of the adoption of our Constitution, were published under fictitious names. It is plain that anonymity has sometimes been assumed for the most constructive purposes." Likewise, Black reasoned, the NAACP's recent victories were grounded in the reasoning that "identification and fear of reprisal might deter perfectly peaceful discussions of public matters of importance." The Los Angeles ordinance, he concluded, "is subject to the same infirmity."

Black's bold statements about anonymity also received criticism from some justices. Soon after Black circulated a draft of his opinion in February 1960, Frankfurter sent a memo to his colleagues in which he announced his plans to write a dissent unless another justice planned to do so. "I certainly cannot agree to an opinion which does not differentiate the invalidation of this legislation against anonymity from the great body of enactments requiring disclosure in a field that so deeply touches the protection of free discussion of public matters as against 'the fear of reprisal' etc. in the exercise of the voting franchise in political elections," Frankfurter wrote.

Justice Clark wrote a dissent, joined by Frankfurter and Whittaker. Clark observed that Los Angeles may well have had a valid reason for the identification requirement, such as combatting false advertising. And Talley failed to show that he would face harm by identifying himself on the handbills, he reasoned. "I stand second to none in supporting Talley's right of free speech—but not his freedom of anonymity," Clark wrote. "The Constitution says nothing about freedom of anonymous speech." Clark pointed to state election laws that require campaign materials to identify the author. "The fact that some of these statutes are aimed at elections, lobbying, and the mails makes their restraint no more palatable, nor the abuses they prevent less deleterious to the public interest, than the present ordinance," he wrote.

Talley set the legal framework for strong anonymous speech protections. The Supreme Court would apply this right to author name requirements on campaign literature, a state law requiring petition circulators to wear name badges, and a requirement for door-to-door canvassers to register with the local government. The right is not absolute, as the Court has approved some disclosure requirements, particularly in the campaign finance context.

Tomorrow's post will explore how courts have applied these First Amendment anonymity protections to the Internet.