THE BLOG
08/15/2014 12:04 pm ET Updated Oct 14, 2014

Anonymity and Censorship

How far can government go in forcing people to reveal their identities, or protecting people from being forced to reveal their identities? The issues of anonymity, free speech, and privacy are once again central topics of debate, made so by the refusal of the police department in Ferguson, Missouri to reveal the identity of the police officer who fatally shot Michael Brown, an unarmed African-American teenager Saturday night, based on fears for the officer's safety. The decision to keep his identity secret has been a factor in the violent protests in the St. Louis suburb.

A person's identity ordinarily can be protected from compelled disclosure to protect free speech. The Supreme Court struck down an Ohio law that forced protesters and pamphleteers to reveal their identity or face punishment. But political speech is at the core of the First Amendment, and protecting anonymous political speech protects unpopular individuals and their unpopular ideas from retaliation by an intolerant society. To be sure, forced disclosure of the person's identity can be required in cases of fraud, libel, and false advertising. But as the Court observed, anonymous political speech occupies an honorable tradition of advocacy and dissent. Similarly, rules barring disclosure of a person's identity appear in other well-known contexts, such as protecting juveniles, victims of sexual abuse, and government informants.

Criminal trials also feature situations in which anonymity is used. The use of "anonymous juries" is employed to protect jurors in controversial trials involving dangerous defendants from having to disclose their identities. Courts recognize that this procedure is a drastic measure that implicates a defendant's right to the presumption of innocence but is used to protect jurors from a credible fear of retaliation by the defendant. By the same token, the identity of trial witnesses occasionally is withheld, such as child witnesses and undercover police officers.

Is the refusal to keep secret the identity of the police officer who killed Michael Brown permissible? Courts seem to be divided on the question. A recent case from California denied the Long Beach Police Department's effort to conceal the identity of the officer who killed an unarmed man. The police contended, as in the Ferguson killing, that revealing the name of the officer would expose the officer and his family to harassment because the officer's home address and other personal information could easily be found using the Internet. The court also was told that officers involved in shootings of gang members faced specific threats, retaliation, and the impact of widespread graffiti reading "Strike Kill a Cop." The California court, however, found that there was an absence of specific evidence that disclosure would pose a threat to the officer's safety, such as a case involving disclosure of the identity of an undercover officer. The vague, speculative, and non-particularized claims of safety, the court concluded, were not sufficient to override the fundamental right of the public to have access to information concerning the conduct of the people's business by its government.
On the other hand, an Ohio federal court ruled differently recently in a police shootout with gang members, finding that law enforcement agencies are allowed to withhold the identity of police officers who face substantiated threats of injury or death in retaliation for on-the-job activities. The case involved a police shootout with a notorious gang, and the killing of the gang's "national enforcer." The court ruled that the officers involved in the shootout had a fundamental privacy right to personal safety that was not overridden by the public's right to this information.

Is the decision to conceal the Ferguson police officer's identity based on specific and credible threats to the officer's safety? If so, then challenges by the press and public to transparency and forced disclosure probably will fail. If, however, the claims of safety are general, speculative, and non-specific, then the police may be compelled to reveal his name. As the matter continues to percolate, and demands for disclosure intensify, it appears that his identity may have already been discovered by computer hackers, or the government itself.

The concern, of course, is that claims of police safety and potential harm to police may be given undue deference by courts, even if the claims over safety threats are not specific and appear to be speculative and self-serving. Indeed, keeping an officer's identity a secret will foreclose any effort to learn whether he was involved in previous shootings, or other misconduct, or any other incidents in which race may have mattered. The facts at present are unknown, and contested.

Regrettably, the revelation of some facts appears to be a partisan effort to protect the officer, such as the disclosure by Police Chief Thomas Jackson that the officer who killed Mr. Brown was struck in the face. Such disclosure may simply stoke the community's already intense anger and distrust. On the other hand, some facts, such as whether the officer had been drinking, will never be known. And if the prosecutor decides that the shooting was justified, the officer's identity may continue to be kept secret, maybe forever?

To restate the obvious, democracy doesn't function well when government is allowed to pick and choose which facts it wants to disclose, and which facts it wants to keep secret.