[EL] The Federalist Papers and Anonymity

Fri Jun 1 08:50:01 PDT 2012

There's a sufficient historical record from colonial and post-colonial days
to illustrate the import of anonymity, fear of King George and Co., or
otherwise keeping government busybodies out of your own affairs:

   - 1722, James Franklin (older brother, Ben) published his mockery of the
   Mass. government for ineffectively dealing with pirates, with the
   government itself calling this a "high affront to this Government," leading
   him directly to jail.
   - 1723, Penn. judges sentence two men for making "derogatory comments"
   about government officials.  One received two hours in the pillory and
   received a fine.  The other spent two hours and two days in the pillory,
   was dragged through the streets by a cart and was whipped with 41 lashes
   and imprisoned.
   - 1753, Daniel Fowle was arrested by order of the Mass. General Assembly
   on "suspicion of having printed" a pamphlet, *Monsters of Monsters*,
   which discussed the qualities of certain legislative members.  Interrogated
   and jailed for two days.

That's just the start.  Notice how each of these three examples tend to
reflect on the "character, qualifications, and fitness" of the public
servant or government?  The more things change....

Human beings having the amazing, and flawed, tendency to seek retribution
against their perceived opponents in so many ways.  Peer-to-peer
retribution, economic reprisals, threats of violence and death, and nuanced
bullying come to mind.  Government to individual retribution, government
blacklists, Gibson Guitar, federal contractor interests, Boeing, and such
come to mind. The value of anonymity and associational privacy (for all,
not the judicially-selected-few) acts as pressure relief for speech to flow
unencumbered and is a constraint against the breakdown of civil society as
both Jim and Brad have illustrated.

Forward,

First Amendment Ben

On Fri, Jun 1, 2012 at 11:13 AM, Smith, Brad <BSmith at law.capital.edu> wrote:

> The authors of the Federalists also wanted anonymity because of various
> personal connections and the need to deal with other people in a variety of
> contexts and settings, not only to force an argument away from ad
> hominemism (if that is a word!)
>
> The point Michael raises further emphasizes that one should not have to
> justify one's reasons for wanting some level of anonymity. It is the state
> that should have to justify some reason for invading privacy and demanding
> the right to track its citizens political activity. Thus, when Rick writes,
> "the potential of a boycott does not provide a basis to exempt anyone from
> required campaign disclosures" (at least in his opinion), he's got the
> burden of proof backwards. If the purpose of forced disclosure is to help
> "hold people accountable," I think the statute fails to even pass a
> rational basis test for interfering with the rights of citizens, let alone
> the strict scrutiny normally applied to regulation of speech.
>
> 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: Friday, June 01, 2012 10:57 AM
> To: law-election at uci.edu
> Subject: Re: [EL] The Federalist Papers and Anonymity
>
> The Federalist Papers were written in 1788, well after the American
> Revolution victory over King George III’s government. The phrase “sign your
> John Hancock” is associated with the non-anonymous speech of signing the
> Declaration of Independence, which was more likely to result in retaliation
> by King George III.
>
> The Federalists were arguing for a stronger government than what existed
> under the failed Articles of Confederation, America’s first constitutional
> government, a weak government incapable of performing its necessary
> functions. So, the Federalists were in some measure proponents of greater
> federal government power, hence their name, Federalists. It was the
> Anti-Federalists who were those that were more distrustful of federal power
> and favored more power in the hands of the states and the people. Our
> original constitution did not have a First Amendment protecting free
> speech. The Bill of Rights was adopted in conciliation to the
> Anti-Federalists. The authors of the Federalists Papers did not believe
> that the provisions in what would become the Bill of Rights were necessary,
> including the First Amendment Freedom of Speech.
>
> The authors of the Federalists Papers were not in fear of reprisal for
> authoring the essays. The three were well known for their support of the
> proposed constitution; Madison was its author. The authors of the
> Federalist Papers used anonymity so that Anti-Federalists could not make a
> connection to the personal interests of the authors when rebutting the
> essays. Still, at the time, many people correctly guessed who the authors
> were. Ironically, in light of Jim's impassioned defense of anonymity, we
> might have had a federal government with weaker powers if the authors had
> not written anonymously under Publius.
>
> There is a cogent argument that one can draw from the Federalist Papers
> example about the value of anonymous speech to protect against ad hominem
> arguments, but there is no basis to argue that the three authors feared
> retribution from King George III.
>
> ============
> 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: Friday, June 01, 2012 9:38 AM
> To: rhasen at law.uci.edu; law-election at uci.edu
> Subject: Re: [EL] ELB News and Commentary 6/1/12
>
>    Things have certainly changed.  The First Amendment contemplates that
> the citizens are free to participate in their government and that the
> government is thereby to be held accountable to the citizens.
>
>    Now, it is the government holding the citizens accountable for
> participating in their government, as Rick says: "Those with power want to
> wield it without being accountable for their actions." He wants speech only
> if there are consequences to the speaker. I guess he wants the Founders
> strung up for publishing the Federalist and Anti-Federalist anonymously.
>  Well at least King George III certainly did. And how about Mrs McIntyre,
> who not even Justice Stevens wanted to be punished by the school board.
>
>    As this debate goes on, at least we now know plainly what the
> "reformers" have in mind for those who dare to speak. Nothing about voter
> information. No bogus claim that there will be no retaliation.  But a
> celebration of retaliation. And then what a great democracy we would have!
>
>  Only the rich and powerful, whose allies hold the levers of government
> power, would dare speak.  It would be helpful too if your allies control
> the media. Humm, am I describing current America where liberals hold sway?
>  Is that why some liberals are all fired up to bring it on!  Is this their
> last desperate attempt to hold power -- threaten punishment of their
> "enemies" for daring to speak out?
>
>    At least now, all the false facade has been stripped away and the brave
> new world they contemplate has been revealed to all.
>
>    Actually, it is a brave old world -- see Gangs of New York if you want
> to see a window to our future democracy.  Jim Bopp
>
> In a message dated 6/1/2012 2:21:47 A.M. Eastern Daylight Time,
> rhasen at law.uci.edu writes:
> “Citizens: Speech, no consequences”
> Posted on May 31, 2012 11:20 pm by Rick Hasen
> I have just written this oped for Politico.  It begins:
> You’ve got to feel bad for the rich and powerful in America. The U.S.
> Chamber of Commerce and a variety of big business groups say if Congress
> goes back to letting the American people know who is behind campaign attack
> ads, businesses will face the “palpable” threat of “retaliation” and
> “reprisals.”
> Former Federal Election Commission Chairman Bradley Smith warns in The
> Wall Street Journal that boycotts based on political beliefs — made
> possible by the public disclosure of campaign finance data — “endanger the
> very commerce that enriches us all.” Even the chief justice of the United
> States, John Roberts, apparently is being “intimidated” (Kathleen Parker),
> “pressured” (George Will) and “threatened” (Rick Garnett) by that most
> powerful force in America (law professor and New Republic legal editor)
> Jeffrey Rosen.
> On the right these days, the rhetoric is all about a liberal siege.
> Despite Republicans’ majority in the House, its filibuster power in the
> Senate, a sympathetic Supreme Court and the great power of business groups
> — the language of threats is pervasive. But look beyond the rhetoric and
> you can see what’s really going on: Those with power want to wield it
> without being accountable for their actions.
>
>
> Posted in campaign finance, Supreme Court | Comments Off
> “FEC Deadlocks on Candidate’s Request To Rule on His Plumbing Company’s
> Ads”
> Posted on May 31, 2012 11:16 pm by Rick Hasen
> Bloomberg BNA: “The Federal Election Commission deadlocked late May 30 on
> an advisory opinion request asking whether FEC reporting and disclaimer
> rules regarding “electioneering communications” apply to ads for a
> congressional candidate’s plumbing company….The deadlock over the Mullin AO
> indicated that the FEC may have trouble providing guidance to the regulated
> political community following the recent court actions that beefed up
> reporting requirements for electioneering communications.”
>
> Posted in campaign finance | Comments Off
> “The Corporate Disclosure Ruse”
> Posted on May 31, 2012 11:14 pm by Rick Hasen
> Kimberly Strassel takes on Bruce Free’s Center for Political
> Accountability. This is apparently the second attack in two days and the
> fifth in five months.  Sensing a pattern here?
>
> Posted in campaign finance | Comments Off
> Will Tuesday’s Recall Results in Wisconsin Be an “Omen” for President
> Obama in November?
> Posted on May 31, 2012 11:12 pm by Rick Hasen
> NYT explores.
>
> Posted in campaigns, recall elections | Comments Off
> “Runoff Draws Big Money and Heated Words”
> Posted on May 31, 2012 11:08 pm by Rick Hasen
> NYT reports on Dewhurst-Cruz in Texas.
>
> Posted in campaign finance, campaigns | Comments Off
> “U.S. judge blocks key parts of Fla. law regulating voter registration”
> Posted on May 31, 2012 11:05 pm by Rick Hasen
> WaPo reports.  MORE from NYT.
>
> Posted in NVRA (motor voter), The Voting Wars, voter registration |
> Comments Off
> “DOJ eyes Florida voter roll purge of non-U.S. citizens”
> Posted on May 31, 2012 11:02 pm by Rick Hasen
> Politico reports.
>
> Posted in Department of Justice, voter registration, voting, Voting Rights
> Act | Comments Off
> “Candidates use lawyers for early battles’
> Posted on May 31, 2012 11:00 pm by Rick Hasen
> TribLive: “Pennsylvania candidates are increasingly turning to the courts
> to settle election disputes — and vanquish opponents. State court
> administrators reported on Thursday that Commonwealth Court, which deals
> with election disputes involving candidates for a state office or higher,
> has handled a record 131 election cases this year.”
>
> Posted in campaigns | Comments Off
> “Coalition challenges voter ID amendment”
> Posted on May 31, 2012 10:58 pm by Rick Hasen
> AP: “Four groups petitioned the Minnesota Supreme Court on Wednesday to
> remove from the November ballot a proposed constitutional amendment
> requiring voters to present photo IDs at the polls, saying the language
> that voters will see doesn’t accurately describe the amendment.”
>
> Posted in election administration, The Voting Wars, voter id | Comments Off
> “Holder’s Chutzpah; Voter-ID laws are not about denying access to blacks.”
> Posted on May 31, 2012 10:57 pm by Rick Hasen
> Thomas Sowell has written this article for National Review Online.
>
> Posted in election administration, fraudulent fraud squad, The Voting
> Wars, voter id | Comments Off
> WaPo on Edwards
> Posted on May 31, 2012 7:45 pm by Rick Hasen
> Here.
>
> Posted in campaign finance, chicanery, John Edwards | Comments Off
> NYT on Edwards Verdict
> Posted on May 31, 2012 6:16 pm by Rick Hasen
> Here.
> MORE: Another High-Profile Failure for a Justice Dept. Watchdog
>
> Posted in campaign finance, chicanery, John Edwards | Comments Off
> “Edwards case may have little effect on campaign finance”
> Posted on May 31, 2012 6:14 pm by Rick Hasen
> The News and Observer reports.
>
> Posted in campaign finance, chicanery, John Edwards | Comments Off
> “Justice Department Demands Florida Stop Purging Voter Rolls”
> Posted on May 31, 2012 6:10 pm by Rick Hasen
> TPM: “The Justice Department sent a letter to Florida Secretary of State
> Ken Detzner Thursday evening demanding the state cease purging its voting
> rolls because the process it is using has not been cleared under the Voting
> Rights Act, TPM has learned.”
>
> Posted in Department of Justice, election administration, The Voting Wars,
> voting, Voting Rights Act | Comments Off
> “Is John Edwards verdict the last straw for campaign finance?”
> Posted on May 31, 2012 4:45 pm by Rick Hasen
> The CS Monitor reports.
>
> Posted in campaign finance, chicanery, John Edwards | Comments Off
> Both Sides Seem to Claim Victory in Florida Voter Registration Case
> Posted on May 31, 2012 4:40 pm by Rick Hasen
> See this AP report.  But the fact that the state may appeal is a good sign
> that this was more of a win for plaintiffs.
>
> Posted in election administration, The Voting Wars | Comments Off
> Gerstein on the Edwards Case
> Posted on May 31, 2012 4:38 pm by Rick Hasen
> Here.
>
> Posted in campaign finance, chicanery, John Edwards | Comments Off
> WSJ on Edwards Case
> Posted on May 31, 2012 4:35 pm by Rick Hasen
> Here.
>
> Posted in campaign finance, chicanery, John Edwards | Comments Off
> “John Edwards’ Might’ve Walked But Trial Still A Warning For Politicians”
> Posted on May 31, 2012 4:33 pm by Rick Hasen
> NPR reports.
>
> Posted in campaign finance, chicanery, John Edwards | Comments Off
> “A Cad Gets His Due; The world knows that John Edwards is loathsome.
> That’s enough.”
> Posted on May 31, 2012 3:34 pm by Rick Hasen
> Must-read Emily Bazelon on John Edwards.
>
> Posted in campaign finance, chicanery, John Edwards | Comments Off
> “‘Bad Kemo’ riles the Sunshine State: Pre-emptive vote tampering threatens
> majority rule”
> Posted on May 31, 2012 3:17 pm by Rick Hasen
> Hugh Carter Donohue has written this oped for the Tallahassee News.
>
> Posted in election administration, The Voting Wars | Comments Off
> “Buddy Roemer quits 2012 race”
> Posted on May 31, 2012 3:16 pm by Rick Hasen
> Politico reports.
> The underreported story so far of the presidential campaign: (Where) might
> Gary Johnson make a difference?
>
>
> Posted in ballot access, campaigns, third parties | Comments Off
> --
> 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
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>
>
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