[EL] The need for less disclosure sometimes

Thu Apr 3 21:15:24 PDT 2014

That right, I was not arguing for a specific right to boycott. I was
arguing that the government has the clear constitutional authority to
require disclosure. After that we just have the normal baseline of economic
freedom.

But then high-dollar donors then don't have some additional constitutional
right to protection from the speech of Lady Gaga.

On Thu, Apr 3, 2014 at 11:04 PM, Smith, Brad <BSmith at law.capital.edu> wrote:

>  But Josh completely misses the point.
>
>  Your original question: is there a free speech interest in boycotting?
> My point is that that is the wrong question.
>
>  Of course there is, and no one is proposing to limit that the right to
> boycott (though I have argued, and continue to argue, that generally it is
> a bad use of freedom). Rather, the question is, does the government have an
> interest in forcing people to divulge personal information so that others
> can boycott them? I presume that the answer to that is "no."
>
>  Josh says, in effect, but the state has other interests. I'll concede
> that. As I said, then it's a balancing matter, and you seem to agree, as
> does Josh. But it is not balancing the speech interest of boycotting with
> with the associational and privacy interests on the other side (or your
> answer to the question in the first paragraph would be "yes.") Rather, it
> is balancing whatever other "compelling" interest the government can come
> up with against the associational and privacy interests, and chilling
> effect on speech.
>
>  In other words, if you really believe there is a First Amendment
> interest in having the government force others to provide you with the
> information you need to boycott them, then you would presumably have no
> objection to forcing, under penalty of law, the publication of memberships,
> voting records, charitable contributions, and such.
>
>  Does the government have a compelling interest in encouraging private
> boycotts? Clearly not. It doesn't even have a rational basis interest in
> doing so, boycotting historically having been frowned upon as harmful to
> economic growth and civil society. But if you believe that there is a
> government interest in encouraging private boycotts on the basis of
> political belief and action, I don't see how you conclude there is not a
> government interest in encouraging private boycotts on the basis of voting
> records ("I do not want to do business with a person who votes
> Republican!"), charitable giving ("you give to the homophobic boy scouts! -
> you're fired!" "You support Planned Parenthood and killing babies!!! - I
> want nothing to do with you!"), memberships ("you're a Mason!!!!!!!??? My
> business goes elsewhere!"), and probably quite  bit more. Personally, I
> simply see no way that the state has a compelling interest in forcing
> people to divulge personal information so that others can try to harm them
> through boycotts.
>
>  So in balancing, we weigh the state's interest in disclosure (an
> informed electorate, prevention of corruption, enforcement of limits)
> against the individual/group's interest in privacy, association, and
> speech. On the government side, we should place zero value on the fact that
> it will help people launch private boycotts - indeed, that is an argument
> in favor of limiting disclosure.
>
>
>
>  *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 <614.236.6317>*
>
> *http://law.capital.edu/faculty/bios/bsmith.aspx
> <http://law.capital.edu/faculty/bios/bsmith.aspx>*
>   ------------------------------
> *From:* Rick Hasen [rhasen at law.uci.edu]
> *Sent:* Thursday, April 03, 2014 11:29 PM
> *To:* Josh Orton; Smith, Brad
> *Cc:* law-election at uci.edu
>
> *Subject:* Re: [EL] The need for less disclosure sometimes
>
>  Brad,
> I agree with Josh that the analogy to charitable giving is off the mark,
> because there is nothing to balance on the other side.
> My own view is that for small donations, there should be a zone of
> informational privacy.  Revealing such information serves little public
> purpose and could deter some giving by small donors.  For larger donors, I
> think the privacy interest should give way to anticorruption and
> informational interests.
> I develop these ideas in much more detail in: Chill Out: A Qualified
> Defense of Campaign Finance Disclosure Laws in the Internet Age<http://ssrn.com/abstract=1948313>,
> 27 *Journal of Law and Politics* 557 (2012)
>
> It is also a little ironic, as a reader pointed out to me, that you kept
> the Libertarian candidate off the ballot recently in Ohio for failing to
> include employment information on collected petitions.
>
> Rick
>
>
> On 4/3/14, 8:17 PM, Josh Orton wrote:
>
> Actually, the question is: is it clearly constitutional to legislatively
> require disclosure of potentially corrupting political contributions? This
> and previous courts have plainly said yes.
>
>  The comparison with private charity is completely faulty, unless you
> believe our government has literally no interest in acting to preserve the
> faith of its own citizens.
>
>  And speaking politically, I'm actually quite encouraged by the angry
> complaints about the exercise of informed economic freedom by peer
> corporations and consumers. It helps build momentum for further disclosure.
>
>
> On Thu, Apr 3, 2014 at 8:25 PM, Smith, Brad <BSmith at law.capital.edu>wrote:
>
>>  Totally wrong question. The question is: should the government be able
>> to force people to reveal personal information that others will use to harm
>> them? Is there any government interest, let alone a "compelling" one, the
>> usual standard where first amendment rights are infringed  and if the
>> government has some other interest, how strong must it be to overcome this
>> first amendment interest?
>>
>>  Here's a question: would you favor a law requiring all charitable
>> contributions to be placed on the web, so that citizens can boycott fellow
>> citizens more easily? If not, I think you've answered my first question
>> above.
>>
>> Sent from my iPhone
>>
>> On Apr 3, 2014, at 9:10 PM, "Rick Hasen" <rhasen at law.uci.edu> wrote:
>>
>>   Do you see no protected First Amendment right to an economic boycott ?
>>
>> Rick Hasen
>>
>>  Sent from my iPhone. Please excuse typos.
>>
>> On Apr 3, 2014, at 5:49 PM, "Joe La Rue" <joseph.e.larue at gmail.com>
>> wrote:
>>
>>   "The resignation of Mozilla CEO Brendan Eich over a personal $1,000
>> donation he made in 2008 in support of California's Proposition 8 shows the
>> dark side of campaign disclosure laws and how [some] are using them to
>> intimidate, harass, and bully anyone who disagrees with them on social and
>> cultural issues."
>>
>> Sometimes the answer is not "more disclosure."  Sometimes the answer must
>> be less disclosure, if we are to allow unpopular political speech to
>> survive.  This is precisely what the Bopp Law Firm argued in Doe v. Reed.
>>
>> Read more here.
>> http://blog.heritage.org/2014/04/03/liberals-using-campaign-disclosures-intimidate-harass/
>>
>>
>> Joe
>> ___________________
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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
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