[EL] An attempt to rigorously define the disclosure debate
Benjamin Barr
benjamin.barr at gmail.com
Sun Aug 12 16:09:33 PDT 2012
>
>
> If there was a constitutional right to anonymity of speech via the press,
> then all disclosure would be suspect, and I suspect we would have seen
> successful litigation against disclosure long ago.
>
In support of successful litigation against disclosure - s*ee generally
Brown v. Socialist Workers*, 459 U.S. 87 (1982); *NAACP v. Button*, 371
U.S. 415 (1963); *NAACP v. Alabama*, 357 U.S. 449 (1958).
More will be coming soon.
Forward,
First Amendment Ben
>
> ============
> Dr. Michael P. McDonald
> Associate Professor, George Mason University
> Non-Resident Senior Fellow, Brookings Institution
>
> Mailing address:
> (o) 703-993-4191 George Mason University
> (f) 703-993-1399 Dept. of Public and International Affairs
> mmcdon at gmu.edu 4400 University Drive - 3F4
> http://elections.gmu.edu Fairfax, VA 22030-4444
>
> From: law-election-bounces at department-lists.uci.edu
> [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of
> Volokh,
> Eugene
> Sent: Sunday, August 12, 2012 5:40 PM
> To: law-election at uci.edu
> Subject: Re: [EL] An attempt to rigorously define the disclosure debate
>
> I'm with Mark on this; I canvassed the history of the freedom of the press
> in a good deal of detail at http://www.law.ucla.edu/volokh/press.pdf (Penn
> L. Rev., 2012), and my conclusion is that the freedom of the press has
> consistently been treated as the freedom of all to use mass communications
> technology – not a special constitutional right belonging to a particular
> industry or profession. That was so around the time of the Framing. It is
> so in the Court’s recent precedents. It was so in between the Framing era
> and the modern era. It is so if one looks at modern lower court
> precedents,
> with very few exceptions.
>
> I’m of course open to contrary evidence, but when I’ve asked for such
> evidence, including on this list, I haven’t seen any. Am I missing
> someone? Please let me know if I am. Thanks,
>
> Eugene
>
> > -----Original Message-----
> > From: law-election-bounces at department-lists.uci.edu [mailto:
> law-election-
> > bounces at department-lists.uci.edu] On Behalf Of Scarberry, Mark
> > Sent: Sunday, August 12, 2012 1:27 PM
> > To: law-election at uci.edu
> > Subject: Re: [EL] An attempt to rigorously define the disclosure debate
> >
> > Michael says that the
> >
> > "journalism exceptions appear to me to be covered under the separate
> First
> > Amendment freedom of the press."
> >
> > I think it is very clear that protection of the freedom of the press is
> protection
> > of an activity, not protection of a class of speakers. If I print up a
> bunch of
> > leaflets, I'm protected by freedom of the press; ditto if I publish a
> book
> in
> > hard copy using my laserprinter or in electronic format for online
> purchase by
> > Kindle users. I'm as protected as MSNBC if I create video for broadcast
> or
> for
> > posting on YouTube or iTunes or for distribution as an email attachment.
> >
> > The institutional press, however we might want to define it, has no more
> > right to freedom of the press than anyone else. The New York Times
> > corporation gets no more protection than any other corporation. Same with
> > NBC (or whoever owns it now) or the nearly worthless (sold for one
> dollar,
> > right?) Newsweek.
> >
> > Mark
> >
> > Mark S. Scarberry
> > Professor of Law
> > Pepperdine Univ. School of Law
> >
> > -----Original Message-----
> > From: law-election-bounces at department-lists.uci.edu [mailto:
> law-election-
> > bounces at department-lists.uci.edu] On Behalf Of Michael McDonald
> > Sent: Sunday, August 12, 2012 12:53 PM
> > To: law-election at uci.edu
> > Subject: [EL] An attempt to rigorously define the disclosure debate
> >
> > Brad,
> >
> > Thanks. You've helped me clarify my thinking on this issue in a way that
> I
> > hope productively contributes to this debate. Let me try to rigorously
> sketch
> > out the process of speech and money. I welcome others who may wish to
> > clarify.
> >
> > Speech occurs between a speaker and receiver. (There is no speech without
> > a receiver unless one is schizophrenic.) For example, a volunteer
> canvasser
> > can speak to another person or the CEO of Chic-fil-A can make statements
> on
> > video. The receiver can assess the speaker and decide to take action
> > accordingly. When money is added to the dynamic, speech occurs between a
> > speaker, a paid intermediary (e.g., a paid staffer or a commercial
> created
> by a
> > media firm), and a receiver. With no regulation, the paid intermediary
> can
> > chose to reveal the identity of the speaker to the receiver, not to
> disclose, or
> > send a false message. When the government requires disclosure, the
> > receiver can be informed of the identity of the speaker. (Someone has to
> > have written out this formal description of speech in the context of
> > disclosure somewhere!)
> >
> > Those who support disclosure take the perspective of the receiver. They
> > believe that the receiver has a right to know the identity of the speaker
> and
> > that political markets function best when there is complete information
> > among all participants.
> >
> > Those who oppose disclosure take the perspective of the speaker. They
> > believe that the speaker has a right to make anonymous speech and should
> > not be coerced by the government to reveal their identity to receivers.
> > (Putting aside that the government maintains an environment that enables
> > anonymity between the speaker, a paid intermediary, and receiver: a
> > currency, regulated financial institutions, and government-owned
> airwaves.)
> >
> > The debate on the list serve is so frustrating to me because there is no
> real
> > discussion of balance. I will grant that there may be isolated instances
> of
> > illegal harassment from required disclosure, any speech (not just
> political)
> > can result in harassment or worse when the receiver disagrees with it;
> but
> as
> > many have pointed out these cases can be properly dealt with by law
> > enforcement. Those who have studied or read political communication know
> > that information plays an important role in elections.
> > This is why I believe that political markets function best with
> disclosure.
> > A well-functioning democracy weighs heavily in my calculations in favor
> of
> > disclosure.
> >
> > As asides in response to Brad, journalism exceptions appear to me to be
> > covered under the separate First Amendment freedom of the press. And I
> > do not believe that Sen. Reid's accusations are a good example of
> anonymity
> > - people make claims all the time with contestable factual basis. You
> might
> > include as another example Romney's characterizations of various authors
> > that they have disavowed as false. To take the example further, to assess
> > Ryan's philosophy not only would be need to know Ayn Rand is Ryan's
> > inspiration, we would have to know everything that has informed his
> beliefs.
> > This is, of course, preposterous. We know who Sen. Reid is, which allows
> > receivers to judge the merits of the information, which the Romney
> > campaign has done by pointing out the messenger's obvious conflict of
> > interest.
> > Indeed, I don't think the example would have been raised if we did not
> know
> > Sen. Reid's identity.
> >
> > -Mike
> >
> > ============
> > Dr. Michael P. McDonald
> > Associate Professor, George Mason University Non-Resident Senior Fellow,
> > Brookings Institution
> >
> > Mailing address:
> > (o) 703-993-4191 George Mason University
> > (f) 703-993-1399 Dept. of Public and International Affairs
> > mmcdon at gmu.edu 4400 University Drive - 3F4
> > http://elections.gmu.edu Fairfax, VA 22030-4444
> >
> > From: Smith, Brad [mailto:BSmith at law.capital.edu]
> > Sent: Saturday, August 11, 2012 5:38 PM
> > To: mmcdon at gmu.edu; law-election at uci.edu
> > Subject: RE: [EL] Check out Unions ready to send volunteers out for Obama
> |
> > Fox News
> >
> > Michael has made an assertion several times that I think is incorrect and
> I
> > guess I'll address it. Michael says that the harassment argument "treats
> > money differently than other forms of speech."
> >
> > This, I think, is wrong. Anonymous speech is protected in a host of ways.
> > For example, many states journalism shield laws that protect journalists
> from
> > revealing their sources; in other words, sources can remain anonymous.
> > Even where such laws do not exist, I am not aware of any state that
> requires
> > public revelation of sources other than in the context of legitimate
> criminal
> > investigations and the the like. Magazines and newspapers will even
> > occasionally publish op-eds by persons under pseudonyms or anonymously.
> > Persons can place comments all over the internet anonymously, and a great
> > many bloggers, some of reasonable prominence, have blogged under
> > pseudonyms.
> > Callers to C-Span and other radio and television shows remain anonymous.
> > Harry Reid has no requirement to reveal the name of the mysterious "Bain
> > investor" who apparently has had access to Mitt Romney's tax returns but,
> > for whatever reasons, chooses not to come forward beyond his conversation
> > with Harry. Let us admit, that if Reid's not just making it up, this guy
> is pretty
> > influential.
> >
> > Persons can anonymously post notices, including political notices, in
> public
> > places. Those union member or Planned Parenthood volunteers who canvass
> > neighborhoods are protected by the Constitution from having to reveal
> their
> > names, let alone their addresses and employers. See Thomas v. Collins;
> > Watchtower Bible & Tract Society v. Village of Stratton.
> >
> > "Anonymity," as it is used in this discussion, doesn't mean that nobody
> > knows who the speaker is. Obviously, somebody does - somebody collects
> > and cashes the check of the billionaires and trillionaires, and the
> citizens of
> > much more average means, who write checks big and small.
> >
> > Obviously, some forms of political speech and involvement require a
> general
> > public revelation. But only in the case of financial participation does
> the law
> > require one to publicly disclose one's name, address, and employment. As
> > Michael notes himself, most volunteer activity is not subject to
> compulsory
> > disclosure. This doesn't mean that no one will know about, but it does
> make
> > it much less likely that persons will learn about the participation. Some
> types
> > of speech allow a greater degree of privacy than others. For example, if
> one
> > agrees to film an endorsement for a candidate, there won't be much
> > anonymity. If, on the other hand, one marches in a protest, some might
> see
> > that person, and the person might be caught on film; but generally, the
> > participant is "anonymous," one of a crowd - not forced to broadcast his
> or
> > her participation to the world unless desired. And if the person wishes
> to
> > make GOTV calls or stuff envelopes from HQ, he or she will remain
> > anonymous to the worl d outside the campaign - just like a financial
> donor
> > would but for compulsory disclosure laws.
> >
> > Political and policy consultants can communicate anonymously with
> > candidates in ways that might help them win, and they can do so even if
> they
> > are CEOs of Fortune 500 companies.
> >
> > The vast majority of political activity in the country goes on
> "anonymously," in
> > the sense that there is no government law requiring its disclosure, and
> the
> > actor or speaker is able to hide his identity to the extent practical and
> > desired.
> >
> > It is interesting to me that Mike would require public disclosure of
> certain
> > volunteer activity. I'm pretty sure I would take the other side in that
> debate,
> > although never say never, not knowing what hypos Mike might create, or
> > what real world scenarios may appear. But Mike's starting premise strikes
> me
> > as wrong. Critics of excessive disclosure generally want the government
> to
> > bear the burden of demonstrating the necessity of compulsory disclosuree,
> > and would otherwise treat it as other political speech is treated - as
> > anonymous as the speakers cares to, and can, make it.
> >
> > Bradley A. Smith
> > Josiah H. Blackmore II/Shirley M. Nault
> > Professor of Law
> > Capital University Law School
> > 303 E. Broad St.
> > Columbus, OH 43215
> > 614.236.6317
> > http://law.capital.edu/faculty/bios/bsmith.aspx
> >
> > ________________________________________
> > From: law-election-bounces at department-lists.uci.edu
> > [law-election-bounces at department-lists.uci.edu] on behalf of Michael
> > McDonald [mmcdon at gmu.edu]
> > Sent: Saturday, August 11, 2012 4:38 PM
> > To: law-election at uci.edu
> > Subject: Re: [EL] Check out Unions ready to send volunteers out for Obama
> |
> > Fox News
> >
> > In numerous past exchanges, we have heard from Jim Bopp and others that
> > anonymity is the overriding factor for opposing campaign finance
> regulation,
> > so that a person could not be subject to harassment. Yet, in this example
> a
> > union volunteer's speech has no anonymity. I am heartened that we may
> > finally have gotten past the harassment argument that treats money
> > differently than other forms of speech.
> >
> > A concern for the supporters of campaign finance regulation is corrupting
> > influence of money. I think Jim makes a valid point that we should have a
> > discussion if in-kind donations should be considered similar to monetary
> > donations for their corrupting influence and subject to disclosure.
> > Certainly, I believe that the money that the unions have contributed to
> > organizing the canvassing effort should be disclosed (has it not?) if
> > supporting the campaign and not, say, targeted at issues to increase
> union
> > membership. But the organizing is not an in-kind contribution from a
> > volunteer, although it seems like it is being conflated with it.
> >
> > If we are to say that an in-kind contribution originating from canvassing
> > should be disclosed, then that raises some interesting questions. First,
> I
> am
> > not convinced that door-to-door canvassing by a volunteer should be given
> a
> > monetary value equal to a paid staffer since in the latter instance
> someone
> > has to be induced to do something that they would not otherwise do, but I
> > am willing to stipulate it has value to a campaign. If as a volunteer I
> knock on a
> > door but no one is home, does that count as an in-kind contribution to
> the
> > campaign? Does the time walking from door to door count?
> > I.e., is it the act of speaking that counts or should all activities that
> lead to the
> > speech count? If I speak to my neighbor over the fence or discuss
> politics
> at a
> > poker game, should that trigger disclosure? Should we limit the speech to
> > canvassing, or should it include activities like writing an e-mail or a
> blog
> > comment? How are we to monitor such activities for compliance with
> > disclosure, especially in light of the Obama campaign releasing their
> > canvassing app that requires minimal contact between the campaign and
> > volunteer? And what specific speech should be disclosed, should it be
> only
> > those that invoke the magic words asking for a vote? It strikes me that
> the
> > minimal monetary value of volunteering balanced against these questions
> > should weigh in favor of not disclosing volunteer canvassing.
> > However, I do think there should be a threshold of volunteer activity
> that
> > should lead to disclosure, such as an expert volunteering their
> specialized
> > skills to aid a campaign.
> >
> > ============
> > Dr. Michael P. McDonald
> > Associate Professor, George Mason University Non-Resident Senior Fellow,
> > Brookings Institution
> >
> > Mailing address:
> > (o) 703-993-4191 George Mason University
> > (f) 703-993-1399 Dept. of Public and International Affairs
> mmcdon at gmu.edu
> > 4400 University Drive - 3F4 http://elections.gmu.edu Fairfax, VA
> 22030-4444
> >
> > From: law-election-bounces at department-lists.uci.edu
> > [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of
> > JBoppjr at aol.com
> > Sent: Saturday, August 11, 2012 3:31 PM
> > To: Mark.Scarberry at pepperdine.edu; joseph.e.larue at gmail.com;
> > jerald.lentini at gmail.com
> > Cc: law-election at uci.edu
> > Subject: Re: [EL] Check out Unions ready to send volunteers out for Obama
> |
> > Fox News
> >
> > Even at $10 an hour, we are talking about one days value at $36,000,000.
> If
> > they spend 3 Saturdays doing this, we are up to almost $100 million.
> > "Reformers" were apoplectic when one casino owner gave $10 million to a
> > Super PAC, not $100 million to a candidate. No press releases from "watch
> > dog" Fred. No editorials in the NYTimes. Interesting.
> >
> > Even if the union members do it for free, the union leadership has
> organized
> > this and it would not happen if they had not. Furthermore, as I
> understand
> > the articles, the union used union employees to do the organizing. Obama
> > will certainly give the union leadership credit for this
> > -- which "reformers" would call "corruption" if done by a corporatio --
> and
> > they would be calling the people involved criminals. But nothing but
> silence.
> > Jim
> >
> > In a message dated 8/11/2012 1:01:35 P.M. Eastern Daylight Time,
> > Mark.Scarberry at pepperdine.edu writes:
> > Is the union paying the workers for their canvassing work?
> >
> > Mark S. Scarberry
> > Professor of Law
> > Pepperdine Univ. School of Law
> >
> >
> >
> > From: law-election-bounces at department-lists.uci.edu
> > [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Joe
> La
> > Rue
> > Sent: Saturday, August 11, 2012 9:29 AM
> > To: Jerald Lentini
> > Cc: JBoppjr at aol.com; law-election at uci.edu
> > Subject: Re: [EL] Check out Unions ready to send volunteers out for Obama
> |
> > Fox News
> >
> > I find it funny that Jerald, in arguing about the value of the
> contribution, has
> > proved Jim's point. A union sending its members to campaign for a
> candidate
> > is a valuable in-kind contribution. But most reformers won't see that as
> a
> > problem, as Jerald just demonstrated. But let a corporation make a
> > contribution up to the regular, noncorrupting contribution limits, and
> the
> sky
> > will fall.
> >
> > On Aug 11, 2012, at 7:38 AM, Jerald Lentini <jerald.lentini at gmail.com>
> > wrote:
> > Believe it or not, Jim, my intent in criticizing your comment was to
> point
> out
> > its lack of foundation and merit, not to "chill your speech." Or is
> criticism from
> > private parties inherently chilling now, too?
> > On Sat, Aug 11, 2012 at 10:03 AM, <JBoppjr at aol.com> wrote:
> > One of my assumptions was that this was just for one day's work. I now
> see
> > from this Click here: Labor chief Trumka vows stronger ground game for
> > elections - Washington Times that it is much more than that.
> >
> > No, I don't know what the going rate for canvassers is. Maybe someone on
> > the list serve can provide that info. In any event, we are talking about
> 100s of
> > millions of dollars for this effort.
> >
> > And, JR, I know that your name calling is intended to chill my speech
> (boy, we
> > have seen a lot of that coming from the left these days) but, sorry, it
> just
> > won't work. Jim Bopp
> >
> > In a message dated 8/11/2012 9:29:00 A.M. Eastern Daylight Time,
> > jerald.lentini at gmail.com writes:
> > Jim, all else aside, do you really think the value of an in-kind
> contribution is
> > what the person's normal hourly rate doing something completely different
> > would be, and not the value of the service actually rendered?
> >
> > Unless you think a canvassing program that happens outside business hours
> > should be valued as an in-kind contribution of what the volunteers would
> > make doing their regular jobs (which are most likely a little more taxing
> than
> > knocking on doors), then your snark makes no sense.
> >
> > -JR
> >
> >
> > On Sat, Aug 11, 2012 at 9:09 AM, <JBoppjr at aol.com> wrote:
> > AFL-CIO to send out 3 or 400,000 volunteers to help Obama. See
> >
> > Click here: Unions ready to send volunteers out for Obama | Fox News
> >
> > I have always been curious why the "reformers" only focus only on money.
> > This sure seems like a very valuable contribution to the Obama campaign
> to
> > me (if this is coordinated, but I cannot figure that out. Anyway the
> > "reformers" say it doesn't matter -- corruption either way). Many of
> these
> > volunteers make 30, 40 or 50 dollars an hour, so this is a 144 million
> dollar
> > contribution to the Obama campaign. 400,000 x 8 x 40 = $144,000,000.
> >
> > And the "reformer" scream bloody murder over contributions from
> > corporations of a few thousand. Jim Bopp
> >
> > _______________________________________________
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