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FROMMER: Disclosing the dangers of disclosure
Question of the Day
Anonymous speech has been part of American political debate since the founding.
The Federalist Papers, authored by John Jay, James Madison and Alexander Hamilton, were published under the name Publius. Many of the seminal cases about anonymous speech arose from the civil rights struggle, when speaking out publicly could mean risking one’s job or even one’s life.
Today, the time-honored principle of anonymity is under attack. In the name of “good government,” many states require speakers who want to speak on political issues to turn over their names, addresses and other personal information, which the states then publish. Wednesday, the U.S. Supreme Court hears Doe v. Reed, a case about Washington state’s attempt to release the names and addresses of almost 140,000 people who signed a petition to put a referendum about same-sex partnership rights on the ballot. The court should protect the First Amendment and hold that speakers - not the government - are the ones to choose whether to identify themselves.
Laws like Washington state’s are true threats to freedom of speech. Unfettered participation in the political world often requires anonymity. The Supreme Court, in upholding the convictions of Ku Klux Klan members for intimidating black voters, recognized that “the temptations to control … elections by violence … is a constant source of danger.” To protect against that danger, the court in NAACP v. Alabama blocked that state’s attempt to make the civil rights group turn over its membership list. As the court noted, “Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association,” but that mandatory disclosure could serve as “a substantial restraint upon the … freedom of association.” The court was concerned that allowing state officials to get their hands on the organization’s membership list would chill the NAACP members’ right to associate and advocate for change by making all kinds of threats and intimidation possible.
Some speakers may desire anonymity not out of fear, but simply because they want to retain as much of their privacy as possible.
Others might choose to speak anonymously so that their message is judged on its own merits. Jay, Madison and Hamilton did not write as Publius because they feared reprisals but because they wanted people to focus on what they were saying, not who was doing the speaking. Likewise, the Supreme Court has recognized that a speaker, quite apart from any threat of persecution, might conclude that his ideas would be better received if he made them anonymously. This is particularly true in today’s contentious political world, where many people are inclined to prejudge an argument based on who makes it. Anonymity can ensure that debates revolve around ideas, not identities.
Those who favor mandatory disclosure laws argue that voters need to know the identities of speakers in order to make educated decisions. This argument - besides ignoring that individuals are perfectly capable of deciding whether or not they will listen to anonymous speech - assumes that the public’s bare desire to know who is supporting an issue is reason enough to force people to give up their anonymity. However, the fact is that the vast majority of people don’t care about this information. In his recent study Disclosure Costs, professor Dick Carpenter surveyed 2,000 people about how they use the information collected under disclosure laws. It turned out that few citizens sought out this information and three-quarters of people could not name a single funder of issue campaigns in their state. Other studies have shown, moreover, that the press rarely reports contributor information.
Some people, though, are very interested in this data - not for the purpose of education but for intimidation. In California’s recent vote on gay marriage, both sides used the mandatory disclosure laws to harass and intimidate their opponents. In one case, a restaurant manager had to resign after her $100 contribution to the anti-gay-marriage group led to boycotts. In another, a group created a “mash-up” that combined peoples’ names and addresses with an online map service. The result was a searchable database that gives turn-by-turn directions to contributors’ homes.
The chilling effect of mandatory disclosure laws cannot be overstated. In Disclosure Costs, people’s support for disclosure laws evaporated when asked if they should have to disclose their own personal information in order to speak. In fact, almost three out of five people said they would think twice about giving to an issue committee if it meant having to reveal their name and address - the very information Washington state’s law requires.
No one can make you reveal how you voted. Likewise, no one should be able to force you to disclose whether you signed a petition or supported a cause before the election. Earlier this term, the Supreme Court called the recent events in California a “cause for concern.”
Now, in Doe v. Reed, it can rectify some of those concerns. By striking down Washington’s mandatory disclosure regime, the court can make it clear that such laws have no place in a nation that prides itself on free political debate.
Robert Frommer is a staff attorney with the Institute for Justice, which litigates nationwide for free speech and against restrictions on political speech and participation.
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