Re: [EL] Electionlawblog news and commentary 4/5/11

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 Ohio law. "

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

Arlington, VA

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

124 S. West Street, #201

Alexandria, VA� 22310

(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

124 S. West Street, #201

Alexandria, VA� 22310

(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

124 S. West Street, #201

Alexandria, VA� 22310

(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

�

April 05, 2011

"Wisconsin Election is Referendum on Governor"

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

"More FEC Terms Expire, but Replacements Unlikely"

Roll Call offers this report.

Posted by Rick Hasen at 07:41 AM

And in Election Law-Related News from Ohio

The Hamilton County judge case may be heading to the Supreme Court (which, if taken, would almost certainly lead the Court to explain the meaning of Bush v. Gore)

The Ohio Chief Justice wants to change the rules for judicial selection.

ePollbooks may come to Ohio.

And there's controversy over Brad Smth's possible appointment as dean of Case Western.

Posted by Rick Hasen at 07:35 AM

Is It a Legislative District or a Rorschach Ink Blot?

You decide.

Posted by Rick Hasen at 07:25 AM

"Lawmakers End Same Day Voter Registration"

News from Montana.

Posted by Rick Hasen at 07:21 AM

April 04, 2011

"McComish, the Supreme Court, and the Fiesta Bowl Scandal"

Doug Kendall blogs.

Posted by Rick Hasen at 04:48 PM

"Big Money, Union Fight Shape Wisconsin Court Race"

Politico offers this report.

Posted by Rick Hasen at 03:01 PM

Volokh on the History of the First Amendment's Press Clause

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

"Obama FEC Filing Confirms No Public Funds for Re-Election"

Roll Call offers this report.

Posted by Rick Hasen at 12:36 PM

"Bring Donors Out of the Shadows"

David Callahan has written this important NYT oped.

Posted by Rick Hasen at 08:49 AM

--
Rick Hasen
Visiting Professor
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen@law.uci.edu

William H. Hannon Distinguished Professor of Law
Loyola Law School
http://www.lls.edu/academics/faculty/hasen.html
http://electionlawblog.org

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