The First Amendment Right to Political Privacy, Chapter 5 – Talley, McIntyre, Jehovah’s Witnesses and the Right to Speak Anonymously
So far, this series has traced the jurisprudential seeds and growth of the First Amendment’s protection against forced disclosure of members of private associations, beginning with American communists and following the doctrine through a series of diverse organizations. In Chapter 4, we considered the Supreme Court’s unanimous, full-throated ruling in NAACP v. Alabama that the First Amendment protects associational privacy. In this Chapter 5, we will pick up with the first significant doctrinal extension of NAACP, to protect anonymous speech, in Talley v. California and follow that doctrine through a series of opinions decided over the next four decades by solid Court majorities.
From Associational Privacy in NAACP to the Right to Speak Anonymously
The NAACP’s reply brief in the Alabama case was remarkable for the breadth with which it argued an issue that did not appear obvious from the facts of the case. The NAACP’s opening brief hewed closely to the Supreme Court’s rulings in Rumely, Sweezy, and Watkins, all cases about associational privacy and efforts by organizations to resist exposing their financial supporters and fellow partisans. Associational privacy was the relevant issue in the Alabama case too. Yet the NAACP briefed a much broader, and seemingly off track, issue in its reply brief: the right to speak anonymously.
The NAACP invoked the history of anonymous publications in England, colonial America, and the early days of the United States, as well as the right to a secret ballot, and Justice Frankfurter’s concurrence in Sweezy. “Anonymity, secrecy, privacy, however it may be called, thus has a special value in a democratic society,” the NAACP argued.[1] The NAACP’s argument echoed the ideas of Judge Edgerton’s dissent in Barsky v. United States, which had observed that “[p]ersons disposed to express unpopular views privately or to a selected group are often not disposed to risk the consequences to themselves and their families that publication may entail.”[2]
The NAACP Supreme Court did not bite. Its decision closely tracked the associational privacy principles articulated in Rumely and Sweezy. The following year, however, before the ink could dry on the NAACP decision, the Court was squarely presented the right to speak anonymously, in Talley v. California.
Talley v. California (1960)
Manuel Talley was the Action Director for a Los Angeles-based social justice organization called National Consumers Mobilization.[3] The organization printed handbills urging readers to boycott certain merchants because “they carried products of ‘manufacturers who will not offer equal employment opportunities to Negroes, Mexicans, and Orientals.’”[4]
The Los Angeles ordinance provided:
No person shall distribute any hand-bill in any place under any circumstances, which does not have printed on the cover, or the face thereof, the name and address of the following:
(a) The person who printed, wrote, compiled or manufactured the same.
(b) The person who caused the same to be distributed; provided, however, that in the case of a fictitious person or club, in addition to such fictitious name, the true names and addresses of the owners, managers or agents of the person sponsoring said hand-bill shall also appear.[5]
Mr. Talley was distributing handbills on the street when, upon inspection, Los Angeles officials determined the flyers violated the city ordinance requiring all handbills to post “the names and addresses of the persons who prepared, distributed or sponsored them.”[6] Mr. Talley was arrested, convicted of violating the ordinance, and fined $10. His conviction was affirmed by the California appellate court.[7]
In a succinct opinion authored by the First Amendment purist Justice Black, the Court observed “[t]here can be no doubt that such an identification requirement would tend to restrict freedom to distribute information and thereby freedom of expression.”[8] The Court went on to acknowledge the long tradition of anonymous speech in England and the United States, observing that “[a]nonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind”[9] and further that “[i]t is plain that anonymity has sometimes been assumed for the most constructive purposes.”[10]
Then, invoking NAACP and its offspring, Bates v. City of Little Rock, the Court concluded:
[T]here are times and circumstances when States may not compel members of groups engaged in the dissemination of ideas to be publicly identified. The reason for those holdings was that identification and fear of reprisal might deter perfectly peaceful discussions of public matters of importance. This broad Los Angeles ordinance is subject to the same infirmity. We hold that it … is void on its face.[11]
The Talley decision was decided by a vote of 6 to 3, and the majority opinion was met with a dissenting opinion authored by Justice Clark (joined by Justices Frankfurter and Whittaker). Justice Clark wrote in dissent that “I stand second to none in supporting Talley’s right of free speech—but not his freedom of anonymity. The Constitution says nothing about freedom of anonymous speech.”[12]
Significantly, the Court struck the ordinance facially while making no mention of any kind of threats or actual retaliation against Mr. Talley, the National Consumers Mobilization organization, or any of its members. In fact, the “record is barren of any claim, much less proof, that [Talley] will suffer any injury whatever by identifying the hand-bill with his name,” the dissent lamented. “Unlike [NAACP], which is relied upon, there is neither allegation nor proof that Talley or any group sponsoring him would suffer ‘economic reprisal, loss of employment, threat of physical coercion [or] other manifestations of public hostility.’”[13]
The unconditional right to political privacy was now definitively established in American jurisprudence, not just in the realm of political association, but in the realm of political and arguably commercial speech (a consumer boycott is arguably commercial speech discouraging consumers from engaging in certain commercial transactions).
Talley in Repose
The right of anonymous speech and Talley were left in repose for over three decades. In the meantime, the Court’s jurisprudence of political privacy meandered through compulsory disclosure rules in discrete contexts, such as making contributions directly to candidates. The most significant decision came in 1976, in Buckley v. Valeo, where the Supreme Court upheld the constitutionality of compelled disclosure of financial contributors to federal campaigns for public office as well as those who made independent expenditures to expressly advocate the election or defeat of federal candidates for the objective of preventing corruption of federal officeholders and informing voters of the interests to which they might be beholden.[14] The Court acknowledged the deleterious effects on free speech and association under NAACP and Talley, but found a sufficient governmental interest justifying compelled exposure of contributors and independent spenders. The Court went further by establishing a special exception for small or unpopular political organizations especially vulnerable to harassment, threats, or reprisals due to dissident beliefs in accordance with NAACP.[15]
The Court also endorsed compelled exposure – in dicta – in two other cases. In 1978, in First National Bank v. Bellotti, the Court struck a state law prohibiting corporations from making expenditures to advocate the passage or defeat of popular referenda, but in a footnote invoking Buckley observed that “[i]dentification of the source of advertising may be required as a means of disclosure, so that the people will be able to evaluate the arguments to which they are being subjected.”[16]
And in 1981, in Citizens Against Rent Control v. City of Berkeley, the Court struck as unconstitutional contribution limits to ballot issue committees, because issues cannot be corrupted in the way that candidates can (per Buckley), but in dicta observed that “[t]he integrity of the political system will be adequately protected if contributors are identified in a public filing revealing the amounts contributed; if it is thought wise, legislation can outlaw anonymous contributions.”[17]
In yet a fourth decision, in 1982, the Court returned to privacy in Brown v. Socialist Workers ’74 Campaign Committee, which applied Buckley’s exception from compelled exposure for minor political parties and harkened to NAACP.[18]
McIntyre v. Ohio (1995)
Talley’s right to political privacy returned front and center in 1995, when the Court reaffirmed the unadulterated right to speak anonymously by a resounding vote of 7 to 2, with a set of opinions rich in history and legal reasoning.
Margaret McIntyre of Westerville, Ohio, was not a politician or director of a think tank or advocacy organization. She was a regular citizen concerned about the cost of education and tax burdens in her local community. The citizens of Westerville were considering a town referendum to raise taxes in order to increase funding for public schools.
On the evening of April 27, 1988, outside the Blendon Middle School in Westerville, Mrs. McIntyre; her son, a student in the Westerville schools; and a friend distributed leaflets opposing passage of the school tax to be voted on the following week.[19] Mrs. McIntyre distributed the leaflets at the school that evening because the Westerville superintendent of schools was holding a meeting inside the school explaining the merits of the tax. Mrs. McIntyre stood outside the school near the doorway to the meeting room and handed leaflets to people as they entered the building while her son and a friend distributed additional leaflets in the school parking lot by placing them under automobile windshield wipers. The leaflets stated:
VOTE NO
ISSUE 19 SCHOOL TAX LEVY
Last election Westerville Schools, asked us to vote yes for new buildings and expansions programs. We gave them what they asked. We knew there was crowded conditions and new growth in the district.
Now we find out there is a 4 million dollar deficit—WHY?
We are told the 3 middle schools must be split because of over-crowding, and yet we are told 3 schools are being closed—WHY?
A magnet school is not a full operating school, but a specials school.
Residents were asked to work on a 20 member commission to help formulate the new boundaries. For 4 weeks they worked long and hard and came up with a very workable plan. Their plan was totally disregarded—WHY?
WASTE of tax payers dollars must be stopped. Our children's education and welfare must come first. WASTE CAN NO LONGER BE TOLERATED.
PLEASE VOTE NO
ISSUE 19
THANK YOU,
CONCERNED PARENTS
AND
TAX PAYERS
Apparently Mrs. McIntyre’s message bothered the superintendent, because he responded to it in the presentation while the assistant superintendent confronted Mrs. McIntyre and informed her that her flyers violated Ohio election laws.
The next evening, on April 28, 1988, a similar school meeting was held at the Walnut Springs Middle School. Mrs. McIntyre appeared outside that school and again distributed her leaflets opposing the school tax levy to persons entering the building to attend the meeting. The assistant superintendent again informed her that the leaflets violated Ohio election laws.
The following week the school tax failed to pass. Subsequently, it was defeated in a second election, but in November of 1988, on the third try, it finally passed.
What ensued was a six-year legal saga. On April 6, 1989, five months after the passage of the school tax referendum, and a year after her leafletting, Mrs. McIntyre received a letter from the Ohio Elections Commission informing her that a complaint had been filed against her by the assistant superintendent, a Mr. Hayfield. She was charged with violating Ohio Revised Code § 3599.09 (as well as two other statutes) because the leaflets she had distributed at the Blendon and Walnut Springs Middle Schools, during the two evenings in April of the previous year, did not contain her name and address. That statute provided (in pertinent part):
No person shall write, print, post, or distribute, or cause to be written, printed, posted, or distributed, a notice, placard, dodger, advertisement, sample ballot, or any other form of general publication which is designed to promote the nomination or election or defeat of a candidate, or to promote the adoption or defeat of any issue, or to influence the voters in any election, or make an expenditure for the purpose of financing political communications through newspapers, magazines, outdoor advertising facilities, direct mailings, or other similar types of general public political advertising, or through flyers, handbills, or other nonperiodical printed matter, unless there appears on such form of publication in a conspicuous place or is contained within said statement the name and residence or business address of the chairman, treasurer, or secretary of the organization issuing the same, or the person who issues, makes, or is responsible therefore.[20]
Initially, the charges were dismissed for want of prosecution. A short time later, they were reinstated at the request of the very determined assistant superintendent. On March 19, 1990, a hearing was held before the Ohio Elections Commission, which found Mrs. McIntyre had violated the law by omitting her name from the leaflets. She was fined $100.
Mrs. McIntyre appealed the violation to the Franklin County Court of Common Pleas, which reversed, holding that § 3599.09 was unconstitutional as applied. Subsequently, the Ohio Court of Appeals reversed the Court of Common Pleas and reinstated the fine.[21] That decision was affirmed by the Ohio Supreme Court on September 22, 1993, which concluded the statute and its application to Mrs. McIntyre were well within the bounds of the First Amendment.[22] Both decisions featured majorities and dissents that grappled with the competing lines of Supreme Court authority. The majorities relied more heavily upon Buckley while the dissents nodded to Talley.
By the time the Supreme Court granted certiorari in the case, Mrs. McIntyre had passed away. Her husband, as executor of her estate, continued the litigation, an indication of the importance of the principles at stake for his late wife and no doubt his interest in her posthumous vindication.
Justice Stevens wrote the opinion of the Court joined by Justices O’Connor, Kennedy, Souter, Ginsburg, and Breyer. Justice Thomas, concurring in the judgment, thought it was important to articulate the First Amendment right under the doctrine of original intent, rather than reasoning the right into existence, and so wrote his own opinion which is a fascinating lesson in early American publishing practices.
The Court held the Ohio law unconstitutional under the First Amendment, because it banned anonymous speech on issues. The Court’s analysis drew upon several lines of precedent in reaching this result.
First and foremost, the Court relied on Talley for the fundamental principle that the First Amendment protects anonymous speech.[23] Of course, Mrs. McIntyre cited Talley throughout her briefs; it was the only precedent cited “passim” in her table of contents.[24]
But the Court found mere citation to Talley an inadequate legal analysis and went on to expound on the right to the point of expanding it beyond the boundaries of dissident speech that might be curtailed due to the kinds of threats presented in NAACP. In the broadest, most unqualified exposition of the right to speak anonymously, the Court observed:
Despite readers’ curiosity and the public’s interest in identifying the creator of a work of art, an author generally is free to decide whether or not to disclose his or her true identity. The decision in favor of anonymity may be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one’s privacy as possible. Whatever the motivation may be, at least in the field of literary endeavor, the interest in having anonymous works enter the marketplace of ideas unquestionably outweighs any public interest in requiring disclosure as a condition of entry. Accordingly, an author’s decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment.[25]
Having so broadly conceived of the right, the Court went on to extend it “beyond the literary realm” or even Manuel Talley’s call for an economic boycott to the “respected tradition of anonymity in the advocacy of political causes,” which the Court analogized to the hallowed right to cast a secret ballot.[26]
Expanding the analysis even further, the Court reasoned that government-compelled disclaimers identifying speakers are a form of forced speech the Court had ruled unconstitutional in Miami Herald Publishing Co. v. Tornillo.[27] “[T]he identity of the speaker is no different from other components of the document’s content that the author is free to include or exclude,” the Court ruled.[28] And from that reasoning the Court conceived of the Ohio law requiring disclaimers of the speaker’s identity as a categorical speech ban based on its content. That is, the Court likened anonymous speech as a “category of speech” like any other category and therefore the Ohio statute banned the entire category of speech – speech that chose to exclude from its content the name of the speaker.[29]
Having recognized the First Amendment right (which Justice Thomas asserted was originally intended by the Founders), the Court then considered Ohio’s asserted interests in infringing the right under “exacting scrutiny,” which required Ohio to prove its ban against anonymous speech was “narrowly tailored to serve an overriding state interest.”[30]
Ohio asserted two governmental interests. First, the ban prevented fraudulent and libelous information. Second, the ban provided Ohio citizens relevant information. In support, Ohio naturally relied upon the intervening decision of Buckley and the dicta in Bellotti.
The Court distinguished the two decisions. First, the Court observed that Bellotti’s brief reference to the “prophylactic effect” of exposure was only dicta and the Court implied that it might reach only corporate speech,[31] but ultimately disposed of Bellotti on the basis that the brief dicta relied on Buckley. As to that decision, the Court distinguished the government’s interest in exposing financial contributors and independent spenders on behalf of candidates for public office, which was at issue in Buckley, from speech about issues, at issue in McIntyre. People can be corrupted, the Court reasoned, but issues cannot.[32] Mrs. McIntyre’s speech was about political issues, and Ohio could not justify infringing her right to express her opinions anonymously.
Watchtower Bible and Tract Society of New York, Inc. v. Village of Stratton (2002)
Justice Stevens would be presented another opportunity to cement his concept of First Amendment anonymity in the law seven years later, in yet another pamphleteering case from Ohio. This time, the case was not about political advocacy, but religious proselytizing by Jehovah’s Witnesses who desired to distribute religious materials door to door. The Court decided this case by a 8 to 1 vote margin (with only Chief Justice Rehnquist dissenting). The same Justices made up the majority opinion, while this time Justice Scalia joined Justice Thomas in a concurring judgment.
The Village of Stratton, Ohio, had enacted an ordinance that prohibited “canvassers” from “going in and upon” private residential property for the purpose of promoting any “cause” without first having obtained a permit from the village mayor. In order to obtain a permit, the canvasser had to complete a registration form that, among other information, required disclosure of the canvasser’s “name and home address” as well as the “name and address of the employer or affiliated organization” sponsoring the canvasser.[33]
The Watchtower Bible and Tract Society of New York published religious literature for the Jehovah’s Witnesses ministry. It challenged the ordinance in federal court in Ohio as a violation of the First Amendment for, among other grounds, infringing the right of the Jehovah Witnesses ministry to distribute religious pamphlets anonymously under McIntyre. The federal District Court upheld the ordinance with narrowing constructions. The U.S. Court of Appeals for the Sixth Circuit affirmed.[34]
The Supreme Court focused directly upon the ordinance’s requirement for the pamphleteer to disclose her name as a condition of obtaining a permit from the mayor and concluded that provision was sufficient to render the ordinance unconstitutional under the First Amendment.[35]
Like Talley and McIntyre, there was no record of any kind of financial reprisals, threats, or violence. The constitutional right started the analysis and the government failed to carry its burden to justify the infringement.
The Corollary Right to Listen Anonymously
Although not mentioned explicitly in Talley, McIntyre, or Watchtower, the decisions observe that the First Amendment protects the speech reaching the marketplace of ideas for the benefit of the listener as much as the speaker. Implicit is the corollary First Amendment right of each citizen to access information.[36] And the right to speak anonymously directly implies a right to listen anonymously.
This was essentially the subject of Rumely where the Court ruled people have a right to purchase books privately, free from exposure pursuant to congressional subpoena.[37] A decade later, the Court struck a law requiring citizens who wanted to receive “communist political propaganda” to register their names with the U.S. Postal Service.[38] Many lower courts have had occasion to rebuff governmental efforts to pry into citizens’ book purchases, library choices, and Internet searches.[39]
Concluding Observations
First Amendment jurisprudence profoundly transformed from 1948, when the D.C. Circuit Court of Appeals denied the existence of a First Amendment right to political privacy and the Supreme Court declined to even hear the issue. Judge Edgerton and Justices Black and Douglas articulated a legal right in the wilderness. But 10 years later, their dissenting concept of the First Amendment right to speak and associate privately, secretly, and anonymously was firmly embedded in Supreme Court interpretation of the First Amendment, and Justice Thomas would opine the right existed from the time of the Founding.
Once recognized, the right would protect conservative anti-New Dealer Edward Rumely, Marxist economist Paul Sweezy, civil rights advocate NAACP, economic justice pamphleteer Manuel Talley, Ohio resident Margaret McIntyre, and the Jehovah’s Witnesses. The First Amendment protected a wide range of opinions and organizations, not only dissidents or minority viewpoints. The diversity of these citizens and their causes speaks volumes about how profoundly important this right has been to all Americans to associate privately, speak anonymously, and listen secretly to ideas of their choice.
As definitive as the right to political privacy became, however, a parallel line of First Amendment jurisprudence was evolving which authorized government infringements of the right. Buckley and its progeny recognized overriding governmental interests in certain contexts, particularly financial contributions and expenditures to elect candidates. Consequently, as important as the right to political privacy has become, many complicated debates over the metes and bounds of the constitutional protection it actually affords, and the strength of governmental interests that might justify its infringement, persist today. The legal, policy, and political debates are intensifying. Chapter 6 of this series will look at some of the more complicated and controversial contexts, including the difficult issue of campaign finance disclosure.
[1] Reply Brief of Petitioner in NAACP v. Alabama at 8 (a PDF copy is available on Westlaw).
[2] Barsky v. United States, 167 U.S. 241, 255 (1948) (Edgerton, dissenting).
[3] See, generally, Clayborne Carson, et al., eds., The Papers of Martin Luther King, Jr. Volume III: Birth of a New Age December 1955 – December 1956 (University of California Press 1997) (publishing letter from Dr. King to Mr. Talley discussing bus boycotts) (available online at https://kinginstitute.stanford.edu/king-papers/documents/manuel-d-talley).
[4] Talley v. California, 362 U.S. 60, 61 (1960).
[5] Municipal Code of the City of Los Angeles § 28.06 (1958).
[6] 362 U.S. at 63.
[7] California v. Talley, 172 Cal.App.2d Supp. 797, 332 P.2d 447 (App. Dept. Los Angeles Co.) (1958).
[8] 362 U.S. at 64.
[9] Id.
[10] Id. at 65.
[11] Id. (citing NAACP v. State of Alabama, 357 U.S. 449, 462 (1958) and Bates v. City of Little Rock, 361 U.S. 516 (1960)).
[12] Id. at 70 (Clark, dissenting).
[13] Id. at 69 (Clark, dissenting) (citing NAACP v. State of Alabama, 357 U.S. 449, 462 (1958)).
[14] Buckley v. Valeo, 424 U.S. 1, 67-68 (1976).
[15] Id. at 73-74.
[16] First National Bank v. Bellotti, 435 U.S. 765, 792 n. 32 (1978).
[17] Citizens Against Rent Control v. City of Berkeley, 454 U.S. 299-300 (1981). The issue before the Court was the constitutionality of Section 602 of City of Berkeley Election Reform Act of 1974, Ord. No. 4700-N.S. In striking that provision, the Court observed that another ordinance, Section 112, which required public disclosure of all donors to a ballot measure committee, adequately served the City’s purported interests. But this was dicta because the constitutionality of Section 112 was not before the Court.
[18] Brown v. Socialist Workers ’74 Campaign Committee, 459 U.S. 87, 91-93 (1982).
[19] The facts are restated from the Petitioner’s Brief in McIntyre v. Ohio.
[20] Ohio Revised Code § 3599.09 (1988) (emphasis added).
[21] McIntyre v. Ohio Elections Commission, 1992 WL 230505 (Ohio App. 10th Dist., April 7, 1992).
[22] McIntyre v. Ohio Elections Commission, 67 Ohio 391, 618 N.E.2d 152 (1993).
[23] 514 U.S. at 341-342 (quoting Talley).
[24] Petitioner’s Brief in McIntyre v. Ohio (1994 WL 144557).
[25] 514 U.S. 341-342 (emphasis added).
[26] Id. at 342-343.
[27] Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974).
[28] Id. at 348.
[29] Id. at 357.
[30] Id. at 347.
[31] Id. at 353-354. To the extent the Court, in 1995, implied that corporations might not have First Amendment protections or might be subject to discriminatory infringements of speech rights, that analysis would not withstand the force of the Court’s 2010 decision in Citizens United v. Federal Election Commission, 558 U.S. 310 (2010).
[32] Id. at 354-356.
[33] Village of Stratton Ordinance No. 1998-5, Sections 116.01, 116.02, 116.03 (1998).
[34] 240 F.3d 553 (2001).
[35] Watchtower Bible and Tract Society of New York, Inc. v. Village of Stratton, 536 U.S. 150, 166-167 (2002).
[36] See, e.g., Packingham v. North Carolina, 137 S.Ct. 1730, 173 (2017) (“A fundamental principle of the First Amendment is that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more…. [T]he statute here enacts a prohibition unprecedented in the scope of First Amendment speech it burdens. Social media allows users to gain access to information and communicate with one another about it on any subject that might come to mind…. In sum, to foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights. It is unsettling to suggest that only a limited set of websites can be used even by persons who have completed their sentences. Even convicted criminals—and in some instances especially convicted criminals—might receive legitimate benefits from these means for access to the world of ideas.”); United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 817 (2000) (“The citizen is entitled to seek out or reject certain ideas or influences without Government interference or control.”); Bd. of Educ. v. Pico, 457 U.S. 853, 867 (1982) (stating that the right to receive information is “an inherent corollary of the rights of free speech and press” because “the right to receive ideas follows ineluctably from the sender’s First Amendment right to send them” and because the right is “a necessary predicate to the recipient’s meaningful exercise of his own rights of speech, press, and political freedom.”); Stanley v. Georgia, 394 U.S. 557, 564 (1969) (“It is now well established that the Constitution protects the right to receive information and ideas.”); Griswold v. Connecticut, 381 U.S. 479, 482 (1965) (“The right of freedom of speech and press includes not only the right to utter or to print, but the right to distribute, the right to receive, the right to read … and freedom of inquiry….”); Martin v. City of Struthers, 319 U.S. 141, 143 (1943) (“The right of freedom of speech and press has broad scope…. This freedom embraces the right to distribute literature … and necessarily protects the right to receive it.”).
[37] United States v. Rumely, 345 U.S. 41 (1953).
[38] Lamont v. Postmaster General, 381 U.S. 301, 307 (1965).
[39] See, e.g., Tattered Cover, Inc. v. City of Thornton, 44 P.3d 1044 (2002) (collecting authority); Julie E. Cohen, A Right to Read Anonymously: A Closer Look at “Copyright Management” in Cyberspace, 28 Conn. L. Rev. 981 (1996) (collecting authority).
