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Peace and Protest

Can city officials force protesters to identify themselves by name?

The word spread quickly in one of Toledo's most multicultural neighborhoods last October: The National Socialist Movement is marching here, down our streets. Local law enforcement soon had a full-scale riot on its hands, the melee ending hours later -- and only after Mayor Jack Ford declared a state of emergency.

While the anti-racist protesters and others involved in the uprising successfully stopped the hate group's march -- police ordered it cancelled because of the surrounding civil unrest -- their actions also resulted in significant property damage, more than 100 arrests, and numerous personal injuries.

Members of the National Socialist Movement didn't get to march that day, but they did return two months later. And this time, local police agencies were prepared to protect the hate group's First Amendment rights -- and the peace of Toledo's streets. They showed up in full force, with hundreds of officers in riot gear and on horseback, rooftop snipers on the ready, and hovering air patrol in full view. Police also limited the protest space available to both the white supremacists and the counter-demonstrators.

Although many objected to the limited protest areas, it was a different city requirement that should raise the ire of civil liberties advocates: Many anti-racist activists and journalists were required to state their names and home addresses on videotape, or hold up their driver's licenses for the camera, before they were permitted to enter designated "protest pens."

The First Amendment protects the right to anonymity, but that right is not absolute. What factors should law enforcement and other government agencies consider when balancing the interests of public peace against protestors' guaranteed freedoms?

In the seminal case establishing the right to associational anonymity, the attorney general of Alabama ordered the NAACP to disclose its membership list, including members' names and addresses, during the civil rights movement. [NAACP v. Alabama, 357 U.S. 449, 462-463 (1958).] The NAACP objected and showed that on previous occasions, such disclosures "exposed [] members to economic reprisal, loss of employment, threat of physical coercion and other manifestations of public hostility." [Id. at 462.]

The Supreme Court concluded that government access to membership information could hamper the NAACP's efforts -- not just by deterring members from joining the organization, but also by inducing members to quit. The disclosure request constituted a "substantial restraint" on the NAACP and its members' First Amendment right of association. [NAACP, 357 U.S. at 463-466.]

At issue in another case, Buckley v. American Constitutional Law Foundation, Inc., a Colorado law required that workers who were obtaining signatures for ballot initiatives wear name badges. The law was intended to allow the "public to identify, and the State to apprehend petition circulators who engaged in misconduct." [525 U.S. 182, 198 (1999).]

In the face of testimony that the badge law deterred interested individuals from circulating petitions and that a petition circulator was harassed after soliciting signatures for a controversial hemp initiative, the Supreme Court struck down the identification requirement as an infringement of the First Amendment right to anonymous political speech. [Buckley, 525 U.S. at 198-200.]

The right to protest anonymously includes the right of Klan members to march with hoods concealing their identities.

In American Knights of the Ku Klux Klan v. City of Goshen, a federal district court concluded that a Goshen, Ind., ordinance prohibiting the wearing of masks to conceal one's identity in public was an unconstitutional infringement on the First Amendment rights of Klan members. [50 F. Supp. 2d 835, 840-843 (D. Ind. 1999).]

Based on the case law, the Toledo counter-protesters who were required by law enforcement officers to provide their names and addresses on videotape have a strong argument that their First Amendment right to exercise their political speech and associations anonymously was infringed.

The fact that the anti-racist protesters "reveal[ed] their physical identities" by showing up in a public place in order to express their political beliefs does not preclude their interests in protecting their personal identities. [See Watchtower Bible and Tract Society v. Village of Stratton, 536 U.S. 150, 167 (2002) (In Buckley, "[t]he fact that circulators revealed their physical identities did not foreclose our consideration of the circulators' interest in maintaining their anonymity.").]

The First Amendment right to anonymity, however, is not absolute. In some situations, it is permissible for the government to infringe on individuals' right to anonymity if the "restriction is narrowly tailored to serve an overriding state interest." [See American Knights of the Ku Klux Klan v. City of Goshen, 50 F. Supp. 2d 835, 842-844 (D. Ind. 1999); McIntyre v. Ohio Elections, 514 U.S. 334, 347 (1995)]. In Toledo, state officials could argue that, given the October riots, the protection of public peace and safety overrode individual protesters' First Amendment rights. State officials would have to demonstrate that the name disclosure requirement was the least intrusive means to achieve its public safety objective. At best, such an assertion would be debatable, given the overwhelming law enforcement presence and that the fact that protesters were corralled in pens. [See American Knights, 50 F. Supp. 2d at 844 (finding that law enforcement had available to it less intrusive time, place and manner restrictions than prohibiting Klansmen from wearing masks).]

When the National Socialist Movement returned to Toledo, city officials certainly managed to keep the peace, but they appear to have trampled on protesters' rights in the process.

Catherine E. Smith is an assistant professor at the Sturm College of Law at the University of Denver, where she teaches a course on Extremism and the Law.