Without opining otherwise on the decision or the dissent, I would suggest one fundamental error that appears regularly in reporting and argument about disclosure.  The Commission dissenters say, “the public has a right to know who is responsible for advertisements like this mailer. We fear that without enforcement of the Act’s disclaimer requirements in this case, the opportunity for such knowledge is substantially diminished.” 

Really?  Doesn’t anybody who wants to know have a ready means to find out?  I mean, the difference between, as Steve suggests, a half second and three seconds (which seems about right, though I guess I’d say more like 2 seconds and 5 seconds) doesn’t seem to me to significantly diminish the right to know.  True, as many people will give the mailer only the most casual review, some may miss the disclaimer who would otherwise catch it.  But assuming the public has a right to know (a right not in the Constitution, and generally rejected by the Court, see e.g. Talley, Collins, NAACP, Bates, McIntyre, Watchtower Bible & Tract), is there really anybody who, wanting to know, could not find out with minimal effort who published this mailer? Certainly at some point the barriers to gathering information become important.  But that is not the case here.  What the dissent really seems to mean is that the government’s power to force certain information before the public is diminished.  That hardly seems like a compelling government interest. Further, it seems a bit ironic to argue that such trivial costs “substantially diminish[]” the right to know when we note that many advocates of regulation have long been rather casually dismissive of the costs regulation imposes on speakers who wish to exercise what is a clear First Amendment right.

There is an increasing tendency to conflate “less disclosure than I would ideally like” with “no disclosure” or at least, as here, a “substantial[] diminish[ment]” of disclosure. In many of these discussions, there seems to be little serious analysis of how the public would benefit from the added disclosure that some would favor.

Bradley A. Smith

Josiah H. Blackmore II/Shirley M. Nault

  Designated Professor of Law

Capital University Law School

303 East Broad Street

Columbus, OH 43215

(614) 236-6317

bsmith@law.capital.edu

http://www.law.capital.edu/faculty/bios/bsmith.asp

From: election-law-bounces@mailman.lls.edu [mailto:election-law-bounces@mailman.lls.edu] On Behalf Of Steve Klein
Sent: Monday, March 14, 2011 11:34 AM
To: rick.hasen@lls.edu
Cc: Rick Hasen; Election Law
Subject: Re: [EL] Electionlawblog news and commentary 3/14/11

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Steve Klein
Staff Attorney & Research Counsel
Wyoming Liberty Group
www.wyliberty.org