understanding the importance and impact of anonymity and authentication in a networked society
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posted by:Carole Lucock // 11:59 PM // September 12, 2006 // ID TRAIL MIX


In 1787-1788 a series of articles under the pseudonym ‘Publius’ [i] appeared in a number of State newspapers, primarily those of New York. The articles presented arguments in favour of the ratification of the U.S. constitution and were subsequently published together as the now famous ‘federalist papers.’ Subsequently, the federalist papers were attributed to Alexander Hamilton, James Madison or John Jay. [ii]

Publius wrote at a time of heated political debate about the content and ratification of the U.S. constitution, a time in which a veritable cast of characters were writing pseudonymously: ‘Brutus’, ‘Cato’, ‘Centinel’, ‘John DeWhitt’ and the ‘Federal Farmer’ – to name a few and who are known as the anti-federalists [iii] – wrote against ratification, with Brutus, in particular, engaging in critical debate with Publius.

One could engage many lines of enquiry concerning this rich and important discourse, carried on as it were under the veil of a pseudonym, or perhaps behind its character. I am interested in the entry of Publius into law’s contemporary discourse concerning the pseudonym. In particular, the jurisprudential arguments drawing on the pseudonym Publius (and similar pseudonyms) to support the ‘right to’ anonymous speech on the basis that some peril might befall authors if they wrote under their ‘real’ name. I question whether law’s characterization of the political speech pseudonym adequately accounts for the phenomena or sufficiently justifies a space for pseudonymous speech.

The U.S. Supreme Court case, McIntyre v. Ohio Elections Commission [iv], is often cited as supporting the ‘right to’ anonymous speech, based on the guarantees of the First Amendment. McIntyre uses the example of Publius and other pseudonyms as supporting an ‘honorable’ tradition of pseudonymous speech. The primary rationale given is a prudential one: the anonymity afforded by the use of the pseudonym is necessary to protect the author from untoward consequences. It is this justification that appears to dominate the subsequent jurisprudence and provides the ‘strong’ case for allowing a space for anonymous speech. This view fails to give appropriate recognition and scope to the complexity of pseudonym use and the purposes leading someone to use a pseudonym. While it is almost certainly the case that at given times in history – including revolutionary, colonial America – there have been prudential reasons for adopting a pseudonym in order to conceal one’s ‘real’ identity, this is but one rather narrow justification in support of its use. Thomas, in his concurring decision in McIntryre, provides an illuminating history of pseudonym use pre and post the ratification of the constitution. This history reveals pseudonym use at the time as a far more multi-dimensional phenomenon and opens a window to consideration of the dramatic, playful and transformative elements associated with the choice and use of a pseudonym.

At the time that Publius and other pseudonyms wrote, it seems likely that their ‘real’ names were known to a limited extent (based on common speculation and actual knowledge within trusted circles) and certainly in many cases became known while the authors were still alive. Why then was a pseudonym so popular and widely used at such a critical and momentous time in a nation’s history? Certainly there is evidence of the desire for disguise; no doubt prudential reasons played some part. However, there is also evidence that disguise was sought to prevent the arguments from being rejected out of hand because of pre-judgments about the author. Beyond this, however, there is a transformative aspect of the pseudonym that enabled the author to speak in a voice that was not only factually disassociated from the views of an identifiable individual but also that facilitated the entry of different views and perspectives altogether. This hypothesis is supported by Furtwangler who has carefully analysed the federalist papers and found that Publius has noticeably different points of view than those of ‘his’ purported authors. [v] In other words, rather than it being the case that the authors used the pseudonym to merely conceal their identities in order to express their own views, in Publius views and perspectives were expressed that were rhetorically tailored to the occasion. [vi] Furtwangler also points out that Publius and others made skillful use of the periodical press, which was supplanting traditional forms of “national communication and influence – pulpit, parliament and crown.” [vii] This served the vital purpose of reaching and informing a public on whose informed assent the legitimacy of the Constitution is founded.

Ironically, the modern state that was ushered in with the ratification of the American Constitution and in some measure supported by the persuasive logic of Publius, not only unified as one nation a group of diverse states and points of view, but also, arguably, eroded the conditions that enabled recourse to the views and perspectives that were enabled in Publius. This modern State not only claims legitimacy ‘in the people’ it also eschews all other claims to legitimacy (monarch, religion, independent factions, brute force) and begins to eclipse the identity that can stand apart from the interiority of the State or be a part of an externality that is extra-State, an identity that can have many names in a variety of contexts some of which are beyond to the purposes of the State. In short order, after the ratification of the U.S. Constitution, measures were implemented to require that a name be given and registered according to a prescribed formula, that one is counted and polled in a regular census, and that one is legitimated only in one’s ‘real’ or ‘legal’ name are instituted. [viii] This began a process whereby the individual and identity becomes a singularity that is in some measure State directed and controlled. One could speak here of hegemony; however, I prefer to think about this in terms of the multi-faceted nature of the human and the preservation of a space for extra-State, extra-non-prescribed activity. A space that leaves open the possibility of the kinds of pseudonyms that can extricate one not only from the immediacy of one’s own worldliness but also from the pre-prescribed and legitimate requirements of the State.

It may be no small co-incidence that pseudonym use has proliferated in recent years and one can certainly align this increase with the advent of a new means of communication, the Internet. As we absorb the meaning of this resurgence and as legislators and courts begin to address the phenomena, we should think carefully about the various reasons for using a pseudonym and avoid too quickly characterizing pseudonym use merely as a means to conceal for prudential or illicit purposes, for history at least reveals that it is a much richer phenomena than this.

Furtwangler notes:

As a literate, civil, rational spokesman for modernity (though in the guise of an ancient sage), Publius cannot move some loyalties. He cannot counter or satisfy some human longings. It would be idle to wonder how a full-blown, spiritually satisfying constitution might have emerged in the 1780s, harmonized by an American Milton. The nature of the American experience was to begin anew, try an experiment, cast off crown and pulpit by calling upon modern newspaper prose to justify a new departure. The poetry of such a changed world would have to emerge, […] through experience, time, and feeling. But the first large step is bare law; devoid of the grace of imagery, softened only by the long deliberation and free discussion, and opening a dangerous discontinuity between old authorities and new. [ix]

It may be that the poetry that we were to wait for was right before our eyes in Publius and that we continue to provide for its emergence as we remain open to the richness of the pseudonym.

[i] Publius was the first name of a famous Roman consul, Valerius Publicola, who played a prominent role in the establishment of the new Roman state after the expulsion of the King and monarchial rule.
[ii] Attribution is not an uncontroversial issue. There is ongoing debate as to which of the three were responsible for the authorship of some papers; moreover, there are those who suggest that while a specific paper has been attributed to a particular author, in fact the paper was likely a collaborative effort or at least not the work of a single author. See, for example, Albert Furtwangler, The Authority of Publius (Ithaca, New York: Cornell University Press, 1984) 118-129.
[iii] Some of the pseudonyms chosen, as in the case of Publius, draw upon an historical figure who played a significant role in founding a non-monarchial state. See, for example, constitution.org, “Anti-Federalist Papers”, < http://www.constitution.org/afp.htm>, which provides details concerning these pseudonyms.
[iv] McIntyre v. Ohio Elections Commission, 514 US 334 (1995), <http://www.law.cornell.edu/supct/html/93-986.ZO.html>, 115 S.Ct. 1511 [McIntyre].
[v] Supra note 2 at 23-32.
[vi] Ibid. at 61-62. Also of significance is the choice of pseudonym, in many instances clearly referring back to persons who were prominent players in establishing the Roman republic.
[vii] Ibid. at 90-91.
[viii] Carl Watner, “The Compulsory Birth and Death Certificate in the United States” and “A History of the Census” in Carl Watner with Wendy McElroy eds., National Identification Systems (Jefferson, North Carolina: McFarland & Company, Inc., 2004) 70 and 132 respectively.
[ix] Supra note 2 at 111.


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