A push is underway across the Anglosphere to require government identification before anyone may use social media. Australia, Ireland, and the United Kingdom are all moving toward some version of mandatory ID-gated access to online platforms, framed as protection for children from harmful content. Elon Musk, a defender of free expression under the First Amendment and of the right to keep and bear arms under the Second Amendment, has publicly pushed back on this trend, warning that the underlying goal is to punish people for what they say rather than to protect anyone. The dispute matters here at home because American law has already answered this exact question, and the answer is no.
A Familiar Justification for an Old Ambition
Protecting children is a legitimate governmental interest, but the mechanism proposed does not stop at filtering content unsuitable for minors. It requires every user, adult or minor, to attach a verified government identity to every post. Once that link exists, a government inclined to police viewpoints rather than protect children has the infrastructure to do it: it can trace disfavored speech back to a real name. The European Union compounds the concern structurally, since its regulatory directives bind member states through an unelected commission regardless of how those states’ own citizens vote.
The same instinct to demand identification before permitting political speech has surfaced in American law before, and it lost.
McIntyre v. Ohio Elections Commission
In 1988, Margaret McIntyre distributed leaflets at a public meeting in Westerville, Ohio, opposing a proposed school tax levy. She signed them only “CONCERNED PARENTS AND TAX PAYERS.” Ohio fined her $100 under a state statute requiring campaign literature to disclose the name and address of the distributor. After her death, Joseph McIntyre carried on the case as executor of her estate, which is why the Supreme Court’s official caption bears his name rather than hers.
The question presented was whether an Ohio statute prohibiting the distribution of anonymous campaign literature abridges the freedom of speech protected by the First Amendment. In McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995), the Supreme Court held, 7-2, that it does. Justice John Paul Stevens wrote for the majority; Justice Antonin Scalia dissented, joined by Chief Justice William Rehnquist.
Justice Stevens grounded the holding in a deep American tradition of anonymous political speech:
“The tradition of anonymous speaking… is most famously embodied in the Federalist Papers, authored by James Madison, Alexander Hamilton, and John Jay, but signed ‘Publius.’ Publius’s opponents, the Anti-Federalists, also tended to publish under pseudonyms.”
The opinion traces those pseudonyms to their probable authors: “Cato,” believed to be New York Governor George Clinton; “Centinel,” probably Samuel Bryan or his father, Pennsylvania judge and legislator George Bryan; “The Federal Farmer,” who may have been Richard Henry Lee; and “Brutus,” who may have been Robert Yates, a New York Supreme Court justice who walked out of the Constitutional Convention.
Why the Court Protected the Unsigned Pamphlet
The Court did not treat anonymity as a loophole. It treated it as a safeguard for the writer and the message. Quoting Justice Hugo Black’s opinion in Talley v. California, 362 U.S. 60 (1960), the McIntyre Court observed that “persecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all,” recalling England’s press licensing laws and seditious libel prosecutions. Justice Stevens added:
“On occasion, quite apart from any threat of persecution, an advocate may believe her ideas will be more persuasive if her readers are unaware of her identity. Anonymity thereby provides a way for a writer who may be personally unpopular to ensure that readers will not prejudge her message simply because they do not like its proponent.”
The Court also traced the “liberty” protected against state infringement to Justice Louis Brandeis’s earlier formulation that “all fundamental rights comprised within the term liberty are protected by the Federal Constitution from invasion by the States.” That reasoning applies without modification to a leaflet handed out on a sidewalk or a post made online. The medium changes; the constitutional principle does not.
The Structural Link to the Second Amendment
I have argued for years that the First Amendment and the Second Amendment are mutually reinforcing guarantees, not merely adjacent entries in the Bill of Rights. The right to speak and organize without first identifying yourself to the government is what allows citizens to criticize that government, including its gun laws, without fear of retaliation. The right to keep and bear arms is what makes that criticism something more than a request the government is free to ignore.
Britain’s Firearms Act 1920, passed amid postwar anxieties about civil disorder, introduced the firearm-certificate licensing regime that began the long contraction of private firearm ownership in Britain. Nations that lose the structural protections in the American Bill of Rights tend to lose them on more than one front.
Where This Leaves Us
McIntyre remains good law, and nothing about the current Supreme Court’s approach to the Bill of Rights suggests it would be less protective of anonymous speech than the Court was in 1995. Any American proposal to require government identification before posting on social media would run directly into this precedent. The pressure campaign now visible across Ireland, Australia, and the United Kingdom is a preview of an argument already tried and rejected here, under a Constitution debated, defended, and ratified in large part by men who signed their arguments with pseudonyms.
This article is based on analysis by Professor Mark W. Smith, constitutional attorney and Host of the Four Boxes Diner 2nd Amendment channel. Watch the original video here. This does not constitute legal advice.