[EL] How much evidence is enough to burden or compel speech?

[BZall at aol.com]

One of the key questions in election law cases today is the amount or  
degree of evidence required to sustain a burden on speech or to require  
compelled speech. The standard for evidence seems to vary widely, with no  
particular guideposts to help chart a safe path. 
 
Rick just said you need "credible evidence" that someone would be subject  
to harassment. Montana argues in Western Tradition Partnership that  
evidence of past corruption is sufficient; Ted Olson, in Citizens United's  amicus 
brief, responds that historical evidence is insufficient under  Northwest 
Austin (aka NAMUDNO). In the recent D.C.  Circuit refusal to stay the lower 
court's decision in Van Hollen,  #12-5117, in a throwaway line at the end, the 
panel majority said:  "Intervenors provided no evidence that their 
contributors “would face threats,  harassment, or reprisals if their names were 
disclosed,” Citizens United, 130 S.  Ct. at 916, and thus they fail to 
demonstrate how the disclosure requirements  “prevent [them] from speaking,” id. at 
914 (quoting McConnell v. FEC, 540 U.S.  93, 201 (2003))." Snyder v. Phelps 
said the odious Westboro protests  could continue because there was no 
evidence that their message in fact  disrupted the funerals, and apparently the 
general uproar about the protests was  insufficient. Doe v. Reed said there 
was insignificant evidence  that the signers of this particular Washington 
petition were harassed,  and that evidence of harassment of other petition 
signers in California was  insufficient (I believe Jim Bopp said there was 
actual harassment documented in  the record, but like a tree falling the forest, 
did it happen if the court  doesn't pick up on it?). 
 
People are naturally danger-averse. That may be why people are seeking more 
 protection than others feel is appropriate. If there were a recognized  
standard, people might be more forgiving. 
 
Barnaby Zall
Of Counsel
Weinberg, Jacobs & Tolani,  LLP
Please note our new address:
10411  Motor City Dr., Suite 500
Bethesda, MD 20817
301-231-6943 (direct dial)
_www.wjlaw.com_ (http://www.wj/) 
bzall at aol.com



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In a message dated 6/1/2012 11:52:42 A.M. Eastern Daylight Time,  
rhasen at law.uci.edu writes:

If you  think that I want people to suffer severe retaliation for their 
political  beliefs you have not read my work closely.

I have said repeatedly that  when there is credible evidence people will 
face severe retaliation, then they  should be exempt from disclosure.  In 
recent cases involving gay marriage  ballot measures in which you have been 
involved, two federal district courts  evaluated these claims in detail and 
found no credible evidence of harassment  of people who merely gave campaign 
contributions or collected signatures for a  ballot measure. Doe v. Reed, 823 
F.Supp.2d 1195 (W.D.Wash. Oct. 17, 2011);  ProtectMarriage.com v. Bowen, No. 
2:09-CV-00058-MCE-DA, ___ F.Supp.2d ___,  2011 WL 5507204 (E.D. Cal. Nov. 4, 
2011). See Richard L. Hasen, Chill Out: A  Qualified Defense of Campaign 
Finance Disclosure in the Internet Era, Journal  of Law and Politics 
(forthcoming 2012), draft available at: _http://papers.ssrn.com/sol3/_ 
(http://papers.ssrn.com/sol3/) 
papers.cfm?abstract_id=1948313.



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