[EL] Check out F.D.A. Surveillance of Scientists Spread to Outside Critic...

[Joe La Rue]

Daniel, what Jim and I are saying is as follows:

(1) knowing that one's name will be disclosed if one speaks deters some
from speaking (that is, chills their speech) because they don't want to be
harrassed for getting involved (where "harrassment" can range from
vandalism, to death threats, to physical attacks, to loss of employment,
etc.);

(2) criminal statutes against harrassment are ineffective for stopping
harrassment; therefore,

(3) speech will be chilled, because people won't want to risk giving $100
bucks to support or oppose a controversial ballot-measure when they know
they will be outed as a supporter or opponent.

Joe
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*Joseph E. La Rue*
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On Mon, Jul 16, 2012 at 8:55 AM, Daniel Schuman <
dschuman at sunlightfoundation.com> wrote:

> There are at least two assertions here that don't seem to square:
>
> (1) "the whole point was not to actually harass them but to threaten to
> do it to discourage them from signing" -- Jim Bopp
>
> (2) "the fact that there are criminal statutes that can be invoked
> to punish those harrassing others *after the harrassment has occurred *does
> not really solve the problem" -- Joe La Rue
>
> One of the purposes of criminal law is to deter unlawful behavior.
> According to Joe, the criminal statutes fail to deter harassment intended
> to stifle speech. Yet according to Jim, the mere fact of potential
> disclosure of the identify of "speakers" deters many people from speaking.
>
> Jim + Joe are collectively implying that criminality can be more
> effectually deterred by threatening to identify the names of wrongdoers as
> compared to putting them in jail. This flies in the face of experience.
>
> Let's be serious for a moment. If there's a real argument that the
> criminal statutes on harassment are insufficient, and real evidence is
> advanced to demonstrate widespread harassment, than the statutes should be
> strengthened. Similarly, if the laws are sufficient but not being enforced,
> then greater priority should be given to enforcing the laws. I haven't
> heard these arguments being made by some of the people who are most known
> for being against disclosure, but if there is a serious concern, that would
> be the logical place to start.
>
> Instead, we hear arguments against disclosure made again and again by the
> same few people. As an example, it is easy to tell whether it's worth
> reading an email to this listserv based upon the identify of who sent it.
> That's an important point of disclosure. Knowing who made an argument has
> significant bearing on how the argument should be evaluated. It lets you
> know whether they have a stake in the outcome, whether they're an honest
> broker, and so on.
>
> When a select few overwhelm our lines of communication to the point where
> deliberation becomes difficult, one of the least intrusive remedies is to
> be able to find out who those speakers are. As this list has shown, it
> doesn't significantly deter speech, but it makes it a lot easier to
> evaluate.
>
> Daniel
>
> Daniel Schuman
> Director | Advisory Committee on Transparency<http://transparencycaucus.org/>
> Policy Counsel | The Sunlight Foundation <http://sunlightfoundation.com/>
> o: 202-742-1520 x 273 | c: 202-713-5795 | @danielschuman
>
>
>
> On Mon, Jul 16, 2012 at 10:51 AM, <JBoppjr at aol.com> wrote:
>
>> **
>> Harassment can discourage and chill First Amendment protected speech even
>> though it is not criminal.  For instance, people were fired from their jobs
>> for contributing to Prop 8 and that was perfectly legal.
>>
>> The government action that we are concerned with is the compelled
>> disclosure of the identity of those who engage in political speech.  If the
>> disclosure can result in harassment and thereby chill political speech,
>> then the government compelled disclosure may violate the First Amendment.
>> Jim Bopp
>>
>>  In a message dated 7/16/2012 10:44:47 A.M. Eastern Daylight Time,
>> adam at boninlaw.com writes:
>>
>>  If it’s not criminal, then isn’t it protected First Amendment
>> activity?  What, exactly, is this middle zone of political speech which is
>> not illegal but that the government nevertheless has a duty to … what,
>> exactly?****
>>
>> ** **
>>
>> Adam C. Bonin
>> The Law Office of Adam C. Bonin
>> 1900 Market Street, 4th Floor
>> Philadelphia, PA 19103
>> (215) 864-8002 (w)
>> (215) 701-2321 (f)
>> (267) 242-5014 (c)****
>>
>> adam at boninlaw.com****
>>
>> http://www.boninlaw.com****
>>
>> ** **
>>
>> ** **
>>
>> *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:* Monday, July 16, 2012 10:31 AM
>> *To:* dasmith at ufl.edu; law-election at department-lists.uci.edu;
>> rhasen at law.uci.edu
>> *Subject:* Re: [EL] Check out F.D.A. Surveillance of Scientists Spread
>> to Outside Critic...****
>>
>> ** **
>>
>>     First, as to your questions, there were only a few persons publicly
>> identified with R-71 and we documented that all were harassed.  Second,
>> regarding harassment of R-71 petition signers, their identity was kept
>> secret by our preliminary injunctions so, of course, none were harassed,
>> because none were disclosed.  Third, they were publicly identified years
>> later, when all of the heat went out of the issue and no campaign of
>> harassment was actually launched against them by those that threatened ti.
>> ****
>>
>>  ****
>>
>>     But the most important fact was that the announcement of the threat
>> to map quest the petition signers was made early in the period of
>> collecting the signatures, way before they would be submitted to the Sec of
>> State.  The reason for the announcement was to intimidate people from even
>> signing the petitions in the first place -- by threatening a repeat of the
>> Prop 8 harassment campaign, now directed at signers of the R-71
>> petitions. So the whole point was not to actually harass them but to
>> threaten to do it to discourage them from signing -- which worked to a
>> certain degree.  ****
>>
>>  ****
>>
>>     Finally regarding police response to the harassment, first, much of
>> it is not criminal and cognizable harassment does not have to be criminal,
>> and second, the police did absolutely nothing about the incidents of
>> harassment other than take a report.  Harassors do not leave their business
>> cards and thus there is really nothing the police can do.  Jim Bopp****
>>
>>  ****
>>
>> In a message dated 7/16/2012 10:16:02 A.M. Eastern Daylight Time,
>> dasmith at ufl.edu writes:****
>>
>>  Hi Jim
>>
>> Again, where and when exactly did the harassment occur during the
>> Washington state R-71 popular referendum signature gathering that led to
>> Doe v. Reed?
>>
>> As the lead author of the Direct Democracy Scholars amicus brief, that
>> you may recall was mentioned twice during SCOTUS oral argument, I was
>> unable much evidence at all of an individual being harassed for signing a
>> petition due to the subsequent public disclosure of petitions.  And if
>> there ever was a case of such harassment, there are--of course--criminal
>> statutes that would apply.
>>
>> If I'm not mistaken, on remand, the Federal District Court [
>> http://electionlawblog.org/wp-content/uploads/doevreed-summary-judgment.pdf]
>> in its summary judgment dismissing your as-applied challenge had this to
>> say about the harassment due to public record requests of those signing
>> R-71:****
>>
>> Applied here, the Court finds that Doe has only supplied evidence that
>> hurts rather than helps its case. Doe has supplied minimal testimony from a
>> few witnesses who, in their respective deposition testimony, stated either
>> that police efforts to mitigate reported incidents was sufficient or
>> unnecessary. Doe has supplied no evidence that police were or are now
>> unable or unwilling to mitigate any claimed harassment or are now unable or
>> unwilling to control the same, should disclosure be made. This is a quite
>> different situation than the progeny of cases providing an as-applied
>> exemption wherein the government was actually involved in carrying out the
>> harassment, which was historic, pervasive, and documented. To that end, the
>> evidence supplied by Doe purporting to be the best set of experiences of
>> threats, harassment, or reprisals suffered or reasonably likely to be
>> suffered by R-71 signers cannot be characterized as “serious and
>> widespread.”****
>>
>> My Doe v. Reed amicus is available here<http://wei.secstate.wa.gov/osos/en/initiativesReferenda/Documents/Court-Federal_Court/27_Amicus_Briefs/Direct%20Democracy%20Scholars.pdf>,
>> and and my recent comments, more broadly on disclosure, are here<http://electionsmith.wordpress.com/category/doe-v-reed/>.
>> And I know you're familiar with my ELJ article<http://www.clas.ufl.edu/users/dasmith/Garrett&Smith.pdf>with Beth Garrett:
>>
>> So, please correct the record for me about the incidents of untoward
>> harassment that individuals signing a petition have incurred as a result of
>> public disclosure laws.
>>
>> Best,
>>
>> Dan
>>
>>
>> ****
>>
>> daniel a. smith, ph.d.****
>>
>> professor & uf research foundation professor (2010-2012)****
>>
>> coordinator, political science internship program****
>>
>> department of political science****
>>
>> 003 anderson hall              |  phone: 352-273-2346****
>>
>> po box 117325                  |  fax: 352-392-8127****
>>
>> university of florida          |  email: dasmith at ufl.edu****
>>
>> gainesville, fl 32611-7325     |  www.clas.ufl.edu/users/dasmith/****
>>
>> http://twitter.com/#!/electionsmith****
>>
>> On 7/16/2012 9:34 AM, JBoppjr at aol.com wrote:****
>>
>>  Of course not, this involved scientific critics of the FDA.  The point
>> is that government officials will go after critics however they find out
>> about them and using the methods they have available.****
>>
>>  ****
>>
>> Regarding campaign contribution, in Doe v. Reed and the Prop 8 case, we
>> document over 250 incidents of harassment of supporters of Prop 8, many of
>> which were only contributors who were map quested on the Internet. A
>> campaign of harassment that occurred against them is unusual.  Public
>> officials that retaliate against critics are usually very careful to make
>> sure that no one knows they are doing it.  The FDA did not send out a press
>> release on their actions against their scientific critics either.  Jim Bopp
>> ****
>>
>>  ****
>>
>> In a message dated 7/15/2012 11:03:48 P.M. Eastern Daylight Time,
>> rhasen at law.uci.edu writes:****
>>
>> I didn't see any evidence in this article that anyone was being harassed
>> for making campaign contributions, and as we've discussed on this list *ad
>> nauseum* (and as spelled out in more detail here<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1948313>),
>> my view of the evidence from two recent cases involving allegations of
>> harassment of campaign contributors is that there is no systemic evidence
>> that harassment of campaign contributors is a problem.  Rare instances of
>> genuine threats of harassment may be dealt with through an "as applied"
>> exemption to disclosure laws.
>>
>>
>> ****
>>
>> On 7/15/12 8:06 AM, Joe La Rue wrote:****
>>
>>  It is interesting that Van Hollen is upset about THIS disclosure. Of
>> course, he was number 14 on the list. I guess disclosure is only good when
>> it's somebody else's speech that is being disclosed.
>>
>> On Jul 15, 2012, at 6:28 AM, JBoppjr at aol.com wrote:****
>>
>>  Click here: F.D.A. Surveillance of Scientists Spread to Outside Critics
>> - NYTimes.com<http://www.nytimes.com/2012/07/15/us/fda-surveillance-of-scientists-spread-to-outside-critics.html?_r=2&pagewanted=all>
>> ****
>>
>>  ****
>>
>> Government going after critics, exactly the type of activity that can
>> chill political speech and that makes disclosure a burden.  Jim Bopp****
>>
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>>
>> ** **
>>
>> --
>> Rick Hasen
>> Chancellor's Professor of Law and Political Science
>> UC Irvine School of Law
>> 401 E. Peltason Dr., Suite 1000
>> Irvine, CA 92697-8000
>> 949.824.3072 - office
>> 949.824.0495 - fax
>> rhasen at law.uci.edu
>> http://law.uci.edu/faculty/page1_r_hasen.html
>> http://electionlawblog.org
>> Pre-order *The Voting Wars*: http://amzn.to/y22ZTv ****
>>
>> ** **
>>
>>
>>
>>
>> ****
>>
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