| Subject: Re: [EL] Electionlawblog news and commentary 4/5/11 |
| From: Bill Maurer |
| Date: 4/5/2011, 1:59 PM |
| To: Rick Hasen <rhasen@law.uci.edu>, Jonathan Adler <jha5@case.edu> |
| CC: Election Law <election-law@mailman.lls.edu> |
Why can’t we use the
mechanism the courts use now, which is to release the information and then see
if someone is harassed or coerced? After they are harassed and coerced, the
courts can then recognize that it was reasonable to conclude that the
information could lead to harassment and coercion, even though their claim that
they should remain anonymous is now moot.
They might not get
their jobs back or their living rooming windows unsmashed, but they’ll at least
have the satisfaction of knowing that they were justified in wanting to stay
anonymous while they are recuperating in the hospital and the courts can pat
themselves on the back for the proper implementation of their closing-the-barn-doors-after-the-horses-have-escaped
methodology.
From: election-law-bounces@mailman.lls.edu
[mailto:election-law-bounces@mailman.lls.edu] On
Behalf Of Rick Hasen
Sent: Tuesday, April 05, 2011 1:38
PM
To: Jonathan Adler
Cc: Election Law
Subject: Re: [EL] Electionlawblog
news and commentary 4/5/11
If it were primarily students who could face the
threat of harassment, then yes. In the campaign finance context, it makes
sense to have a court or regulatory body (such as the FEC) made determinations
about harassment. Designing something for this context would be trickier
(given that there is not an outside impartial arbiter), and I would have to
give some thought about what would be an appropriate mechanism.
On 4/5/2011 1:23 PM, Jonathan Adler wrote:
Would
your views change if you believed that the site was primarily (if note
exclusively) the work of students? Would law students have sufficient
fear of reprisal to justify anonymity in a case like this? And, if so,
how would such claims be evaluated prior to knowing the source of the site?
------
Jonathan H.
Adler
Professor of
Law
Director,
Center for Business Law & Regulation
Case
Western Reserve University School of Law
11075
East Boulevard
Cleveland,
OH 44106
ph)
216-368-2535
fax)
216-368-2086
cell)
202-255-3012
jha5@case.edu
http://www.jhadler.net
SSRN: http://ssrn.com/author=183995
From: election-law-bounces@mailman.lls.edu
[mailto:election-law-bounces@mailman.lls.edu] On Behalf Of Rick Hasen
Sent: Tuesday, April 05, 2011 3:29
PM
To: Jason Rylander
Cc: Election Law
Subject: Re: [EL] Electionlawblog
news and commentary 4/5/11
I have explained my
reasons for favoring disclosure in the campaign finance context in a number of
academic and non-academic articles (here's a recent piece on Slate, http://www.slate.com/id/2271187/).
Roughly, the three interests in the campaign finance context are an
anticorruption interest, an information interest, and an enforcement
interest. I don't think the first and third of those reasons map to the
context of organized opposition to a dean search, though the information
interest surely does. So I might evaluate the credibility of the message
against a dean candidate if I knew it were funded by ideological enemies of the
dean candidate than if I thought the message was funded by a broad section of
faculty and students.
But my main reason for favoring disclosure in this context is the idea that
Justice Scalia so aptly called "civic courage" in his Doe v. Reed concurrence. People have
every right to oppose a dean candidate. But unless they face a realistic
threat of harassment, they should have the courage to put their name with their
accusations. As Justice Scalia wrote in his McIntyre dissent: "I can imagine no
reason why an anonymous leaflet is any more honorable, as a general matter,
than an anonymous phone call or an anonymous letter. It facilitates wrong by
eliminating accountability, which is ordinarily the very purpose of the
anonymity. There are of course exceptions, and where anonymity is needed to
avoid "threats, harassment, or reprisals" the First Amendment will require an exemption from the
Rick
On 4/5/2011 12:11 PM, Jason Rylander wrote:
I'm interested in hearing
why Rick thinks the organizers of this website should have to disclose their
identities and that of their donors. Since he offered to list the reasons
why ...
Jason Rylander
On Tue, Apr 5, 2011 at
1:47 PM, Sean Parnell <sparnell@campaignfreedom.org> wrote:
I enjoy
pointing out irony. I find it ironic that people who get hysterical over the
thought of anonymous speech would let this pass.
Sean Parnell
President
Center for Competitive
Politics
http://www.campaignfreedom.org
http://www.twitter.com/seanparnellccp
(703)
894-6800 phone
(703)
894-6813 direct
(703) 894-6811
fax
From: Rick Hasen [mailto:rhasen@law.uci.edu]
Sent: Tuesday, April 05, 2011 1:08
PM
To: Sean Parnell
Cc: 'Election Law'
Subject: Re: [EL] Electionlawblog
news and commentary 4/5/11
Then I was wondering why
you pointed out the fact that it was anonymous, if you think that's
unobjectionable. Did you think that those who generally support
disclosure would not do so in this case?
Rick
On 4/5/2011 9:51 AM, Sean Parnell wrote:
No, I’m quite fine with
anonymous speech, political or otherwise, and am a proponent of the idea that
speech should generally be judged on the quality of the argument rather than
the source of funds. And of course, individuals are free to give whatever
credibility they wish to anonymous speech, including zero.
Publius, NAACP v. Alabama, McIntyre, etc - probably no need for me to
further traumatize anybody else with my arguments on this subject.
Sean Parnell
President
Center for Competitive
Politics
http://www.campaignfreedom.org
http://www.twitter.com/seanparnellccp
(703)
894-6800 phone
(703)
894-6813 direct
(703)
894-6811 fax
From: Rick Hasen [mailto:rhasen@law.uci.edu]
Sent: Tuesday, April 05, 2011
12:46 PM
To: Sean Parnell
Cc: 'Election Law'
Subject: Re: [EL] Electionlawblog
news and commentary 4/5/11
Sean,
Do you believe that such donor information should be disclosed? I
certainly do, and I'd be happy to list the reasons why if you like. But
what about the idea that some in CCP have put forward that we should
judge political speech based upon the quality of the arguments and not who is
funding the argument?
Rick
On 4/5/2011 9:03 AM, Sean Parnell wrote:
So, I couldn’t help but
notice that the web site attacking Brad Smith as a potential candidate for Dean
of Case Western’s law school is… anonymous.
Sean Parnell
President
Center for Competitive
Politics
http://www.campaignfreedom.org
http://www.twitter.com/seanparnellccp
(703)
894-6800 phone
(703)
894-6813 direct
(703)
894-6811 fax
From: election-law-bounces@mailman.lls.edu [mailto:election-law-bounces@mailman.lls.edu] On Behalf Of Rick Hasen
Sent: Tuesday, April 05, 2011
10:49 AM
To: Election Law
Subject: [EL] Electionlawblog news
and commentary 4/5/11
This NY
Times report begins: "Until a few weeks ago, this state's
election on Tuesday for a justice of the Wisconsin Supreme Court was widely
expected to be dull and predictable."
Posted by Rick Hasen at 07:45 AM
Roll Call offers this report.
Posted by Rick Hasen at 07:41 AM
The
The Ohio Chief Justice wants to change the rules for judicial
selection.
ePollbooks may come to
And there's controversy over Brad Smth's possible
appointment as dean of Case Western.
Posted by Rick Hasen at 07:35 AM
Doug Kendall blogs.
Posted by Rick Hasen at 04:48 PM
Politico offers this report.
Posted by Rick Hasen at 03:01 PM
Eugene Volokh has posted "The Freedom...Of the Press"--
from 1791 to 1868 to Now -- Freedom for the Press as an Industry, or the Press
as a Technology? on SSRN. Here is the abstract:
Both Justices and
scholars have long debated whether the "freedom ...of the press" was
historically understood as securing special constitutional rights for the
institutional press (newspapers, magazines, and broadcasters). This issue comes
up in many fields: campaign finance law, libel law, the newsgatherer’s privilege,
access to government facilities for newsgathering purposes, and more. Most
recently, last year's Citizens United v. FEC decision split 5-4 on this very
question, and not just in relation to corporate speech rights.
This article discusses what the "freedom of the press" has likely
meant with regard to this question, during (1) the decades surrounding the
ratification of the First Amendment, (2) the decades surrounding the
ratification of the Fourteenth Amendment, and (3) the modern First Amendment
era. The article focuses solely on the history, and leaves the First Amendment
theory questions to others. And, with regard to the history, it offers evidence
that the "freedom... of the press" has long been understood as
meaning freedom for all who used the printing press as technology -- and, by
extension, mass communication technology more broadly -- and has generally not
been limited to those who belonged to the institutional press as an industry.
Posted by Rick Hasen at 01:24 PM
Roll Call offers this report.
Posted by Rick Hasen at 12:36 PM
David Callahan has written this important NYT
oped.
Posted by Rick Hasen at 08:49 AM
--
Rick Hasen
Visiting Professor
UC Irvine
949.824.3072
- office
949.824.0495
- fax
rhasen@law.uci.edu
William H. Hannon Distinguished Professor of Law
http://www.lls.edu/academics/faculty/hasen.html
http://electionlawblog.org
--
Rick Hasen
Visiting Professor
UC Irvine
949.824.3072
- office
949.824.0495
- fax
rhasen@law.uci.edu
William H. Hannon Distinguished Professor of Law
http://www.lls.edu/academics/faculty/hasen.html
http://electionlawblog.org
--
Rick Hasen
Visiting Professor
UC Irvine
949.824.3072
- office
949.824.0495
- fax
rhasen@law.uci.edu
William H. Hannon Distinguished Professor of Law
http://www.lls.edu/academics/faculty/hasen.html
http://electionlawblog.org
_______________________________________________
election-law mailing list
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--
Rick Hasen
Visiting Professor
UC Irvine
949.824.3072 - office
949.824.0495 - fax
rhasen@law.uci.edu
William H. Hannon Distinguished Professor of Law
http://www.lls.edu/academics/faculty/hasen.html
http://electionlawblog.org
--
Rick Hasen
Visiting Professor
UC Irvine
949.824.3072 - office
949.824.0495 - fax
rhasen@law.uci.edu
William H. Hannon Distinguished Professor of Law
http://www.lls.edu/academics/faculty/hasen.html
http://electionlawblog.org