[EL] The need for less disclosure sometimes

Thu Apr 3 21:38:17 PDT 2014

As for how to unpack my use of "potentially corrupting" in the context of
disclosure requirements, I'm happy to use the convenient option from *Citizens
United*'s majority opinion. If you think this Court will spend its capital
to overturn precedent approving disclosure, based on harassment challenges,
I'll head to Vegas with you (even knowing the court left that door open).

(I do enjoy your calling my statement tendentious Brad...I can only aspire)

On Thu, Apr 3, 2014 at 11:19 PM, Smith, Brad <BSmith at law.capital.edu> wrote:

>  Of course, Josh is not asking a question at all, but making an assertion
> that fails to address Joe's challenge at all. Josh tendentiously asks, "is
> it clearly constitutional to legislatively require disclosure of
> potentially corrupting political contributions?" I say tendentious, because
> there's a lot packed into the idea of "potentially corrupting political
> contributions." Depending on how one defines that phrase, the courts have
> not, Josh's assertion notwithstanding, "plainly said yes." See e.g.
> Buckley, McIntyre, Socialist Workers.
>
>  Joe argues that the limits on disclosure should be greater because of
> the loss of privacy and the harassment that can result, which also can
> chill speech. I don't take Joe to deny for a second that there might be a
> speech (and associational) interest in boycotting others - but the first
> question is whether there is a state interest in requiring people to
> disclose information that enables others to boycott them. I would presume
> the answer to that question is obviously "no." The state must have some
> other interest before it can order people to disclose private information.
> So Josh merely identifies such an interest, and then in conclusory fashion
> proclaims "case closed." But that's wrong. That merely starts the balancing
> test; and while the answer is that much forced disclosure is allowed, much
> has not been allowed. And while the Court has allowed much, Joe, I take it,
> is arguing that some of those decisions are wrong. Perhaps if Josh is
> willing to never criticize Citizens United or McCutcheon again (because the
> Court has spoken) Joe will agree never to criticize compulsory disclosure
> rulings again.
>
>
>  *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>*
>   ------------------------------
>
>     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
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> UC Irvine School of Law
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