[EL] The need for less disclosure sometimes

Thu Apr 3 22:42:56 PDT 2014

Isn't the demonstrable likelihood of resultant boycotts so infrequent as to
be called insignificant when measured against the public's right to know the
source of funding for candidates and measure?

Larry

From: law-election-bounces at department-lists.uci.edu
[mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Smith,
Brad
Sent: Thursday, April 03, 2014 9:04 PM
To: Rick Hasen; Josh Orton
Cc: law-election at uci.edu
Subject: Re: [EL] The need for less disclosure sometimes

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

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-inti
midate-harass/  

Joe
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