The Right to Remain Anonymous: Anonymous Speakers, Confidential Sources and the Public Good

Abstract

In the digital age, the news media gives voice to anonymous speakers in two ways: reporters may extend confidentiality to sources in exchange for newsworthy information, or a news website may host an online comment function that allows readers to post their reactions to content pseudonymously. Of these two groups of anonymous speakers, only online posters enjoy certain First Amendment protection against a subpoena seeking disclosure of their identities. The reporter’s privilege has always been legally defined as the professional privilege of a reporter to maintain the confidentiality of his sources. Yet as with all evidentiary privileges, the reporter’s privilege serves both private and public ends. Historically, state statutes and state common law have protected the private arrangement that enables sources to disclose information without fear of reprisal, and journalists to gain newsworthy content, because this relationship furthers the free flow of information to the public. By contrast, protection for anonymous