[EL] "We the People" as "CEO"
JBoppjr at aol.com
JBoppjr at aol.com
Fri May 11 14:50:25 PDT 2012
Paul sees it this way:
"So, unless you contest that We the People are sovereign in elections, I
don't see any basis for insisting on a right to speak anonymously to the
sovereign."
I see it as the people speaking to each other about the government. The
government does not like it so the government requires people to identify
themselves so the government and the government's allies can punish them.
While Nixon had an enemies list, at least he kept it private. Obama puts
it on his web cite and invites his allies to work them over. Paul's
reaction is "That's what you get for opposing the sovereign." I say that this
discourages speech about the government that the First Amendment was intended
to protect. Jim Bopp
In a message dated 5/11/2012 5:06:25 P.M. Eastern Daylight Time,
lehto.paul at gmail.com writes:
The CEO analogy is only brought out in case someone is unfamiliar with
sovereignty and the fact that there is always a sovereign power in any
political system. The sovereign makes the final decision from which there is no
recourse. I am happy to abandon the CEO analogy especially in discussion
with those familiar with political science concept of sovereignty.
Having abandoned a helpful but admittedly imperfect CEO analogy, we're
back to the sovereignty of We the People in elections. "We" are subjects of
the law most of any given year, but in elections we are sovereign. See
Montesquieu. This is the fundamental reality of any republic, the citizens have
two hats, one sovereign (in connection with suffrages) and one as subject.
There is always a sovereign in any political system, sometimes a split
sovereignty, but within elections it is clear that the People have
sovereignty and there are no other legitimate claimants.
So, unless you contest that We the People are sovereign in elections, I
don't see any basis for insisting on a right to speak anonymously to the
sovereign. It's irrational for any sovereign not to care whether their
information comes from what they perceive to be a trusted source or from an
unreliable source.
Paul Lehto, J.D.
On Fri, May 11, 2012 at 4:05 PM, Volokh, Eugene <_VOLOKH at law.ucla.edu_
(mailto:VOLOKH at law.ucla.edu) > wrote:
I’m puzzled by the CEO analogy. If I want to send messages to a CEO, the
CEO generally doesn’t have the right to use legal coercion to require that
I sign my name to the messages, or otherwise disclose my identity. Under
some circumstances, the CEO could subpoena such information, but he’d have
to show (at least) that my identity is relevant to some legal claim he might
have against someone, which would rarely be the case. It is indeed the
case that “the CEO of a company has no right to know who is speaking to them,”
if by “right” we mean the power to use legal coercion to demand that the
speaker’s identity be revealed.
The same is true even if I were an employee sending messages to the CEO.
The CEO might examine the company’s own property to try to identify me, but
again he couldn’t use legal coercion to get such information. And beyond
that, I’d like to think that American citizens are generally not “employees
” of either the governmenr or of “We the People.”
Now this doesn’t resolve the question whether anonymous statements –
whether about elections, or about other subjects that might well be highly
relevant to elections – should or should not be prohibited in certain contexts,
whether the speech is of “fat cats” or others who spend their money to
express their views. I just don’t see how the CEO analogy is at all helpful
here.
Eugene
From: _law-election-bounces at department-lists.uci.edu_
(mailto:law-election-bounces at department-lists.uci.edu)
[mailto:_law-election-bounces at department-lists.uci.edu_ (mailto:law-election-bounces at department-lists.uci.edu) ] On
Behalf Of Paul Lehto
Sent: Friday, May 11, 2012 12:58 PM
To: Steve Hoersting
Cc: _law-election at uci.edu_ (mailto:law-election at uci.edu)
Subject: Re: [EL] Informational benefit outweighed by cost?
Arguing that the disclosure of speaker identities is "too high a cost on
speech rights" is just like arguing that the CEO of a company has no right
to know who is speaking to them because such knowledge might pose "too high
a cost on speech rights for too little" information.
"We the People" are the "CEO" of this country, specifically in connection
with elections and voting. It's absurd to think that a sovereign king, CEO
or electorate has no right to know who it is that is speaking to them.
All sovereigns do (or else they are not really sovereigns). No one can claim
a right to use the sovereign's own courts to compel some right to
anonymously talk into the ear of the sovereign. (If they succeed, then the People
are not really sovereign in connection with elections).
The so-called right of anonymity is not so absurd, and becomes far more
arguable, outside the context of elections where sovereignty isn't in play.
The right of anonymity in elections is a de facto coup d'etat attempt
against democracy because it defeats obvious rights of sovereignty.
With anonymity, political-funding fat cats get to talk, but nobody can
"talk back" to them, because We don't know who they are. One can infer the
existence of strings, but isn't allowed to see the puppeteer. No CEO or king
would stand for that, so why should We the People have to put up with it?
Paul Lehto, J.D.
On Fri, May 11, 2012 at 2:45 PM, Steve Hoersting <_hoersting at gmail.com_
(mailto:hoersting at gmail.com) > wrote:
Kim Strassel has another piece in today's WSJ intimating that the
compelled disclosure of independent, non-corrupting speech poses too high a cost on
speech rights for too little benefit in voter information -- especially
absent a meaningful exemption available not just to Vandersloot, for whom it
is too late, but to other would-be funders noticing this treatment, and
eager to seek an exemption as John Doe or Jane Doe.
_http://online.wsj.com/article/SB10001424052702304070304577396412560038208.h
tml_
(http://online.wsj.com/article/SB10001424052702304070304577396412560038208.html)
--
Stephen M. Hoersting
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Paul R Lehto, J.D.
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