[EL] Several false premises

[Smith, Brad]

________________________________________
From: John W. Farrell [jfarrell at mccandlishlawyers.com]
Sent: Friday, April 04, 2014 1:31 PM
To: Smith, Brad
Cc: Jeff Hauser; Allen Dickerson; law-election at uci.edu
Subject: Several false premises



3)  In what context is any political act enrobed in a
constitutionally protected right of privacy?

Does a picketer have a right of privacy as they walk the sidewalk?  

-- Actually, he does have a right to keep his financial supporters hidden (Talley v. California) and not to reveal his name (Thomas v. Collins; Buckley v. American Constitutional Law Foundation). Presumably, he also has a right to protect that information while wearing dark glasses and a disguise.

That each of us votes is public information and not subject of any
constitutional right of privacy.  In Town Meetings across New
England, how each citizen votes on each of the various warrant issues
is open to public viewing and knowledge. 

-- Justice Scalia thinks that there is no constitutional right to anonymous voting. He's quite likely correct. But it has  long been broadly recognized that the secret ballot is an important right, and certainly many people think that the constitution should protect it.

Our word "republic" is derived from a two word Latin phrase "res
publica" which is frequently translated as "the thing done in public."

Privacy and politics would appear to have been antithetical for
millenia. 

 -- This is a perfectly valid intellectual position to take but in fact the Supreme Court has long recognized privacy rights, in NAACP v. Alabama, NAACP v. Button, Bates v. Little Rock, Buckley v. Valeo, Brown v. Socialist Workers '74 Campaign Committee, McIntyre v. Ohio Elections Commission, and more. Why do I think these cases are correct? First, as a practical matter, anonymity is often important to protecting minority opinions and speakers; second, as a matter of first principles, the government needs a strong reason to violate anyone's privacy. What is a sufficient reason is certainly open to debate, but I don't think you really want to argue that there is no constitutionally protected interest in privacy. Or maybe you do..

4)  The government regulation at issue is a surrogate for, and
expression of, our collective desire and need to know who is trying
to influence our vote and our politicians; not an Orwellian intrusion
on our interior life. 

-- Or maybe not.
---
John W. Farrell
Attorney at Law
  11350 Random Hills Road | Suite 500
Fairfax, Virginia 22030-7421
tel (703) 934-1182 | cell (703) 507-1182
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On Apr 4, 2014, at 12:13 PM, Smith, Brad wrote:

> Again, this strikes me as missing the point. Is the point is
> whether there is a government interest in compelling disclosure,
> and if so how what weight goes to the privacy interest of the
> individual.