Re: [EL] Anonymity and harassment

In response to Mr. Mayer,

I'm not sure which point is thought not to raise a question. Ms. Harris's comment that most newspapers refuse to print anonymous letters, though interesting, does not respond to the First Amendment point that I made. My point was that my sending of an anonymous letter to a newspaper could not be punished by the government. What I included after the partial quote by Ms. Harris, was "Could that be made criminal?" Of course a newspaper can choose not to print my anonymous letter, and I can't complain that the newspaper violated the First Amendment. (In fact, if the government were to give me a claim against the newspaper for its failure to print my letter, that would violate the newspaper owner's First Amendment rights. See Miami Herald v. Tornillo, 1974, which was an election law case.) But if the state penalizes me for sending a letter to the newspaper anonymously, then that is a First Amendment violation. And the newspaper has the right, if it chooses to do so, to cooperate with me in maintaining my anonymity even if I disclose my name to the newspaper; it can print the letter without my name or with the notation "name withheld at request of author" or something similar. (But the newspaper might have to disclose my name in the course of discovery if an action is brought for defamation.)

It's important, though, to remember that there are circumstances in which entities that might be thought to be private are treated as engaging in state action and thus are subject to constitutional constraints. E.g., public function cases like the White Primary cases (Smith v. Allwright, 1944, and Terry v. Adams, 1953, involving the 15th Amendment IIRC) and the company town cases (Marsh v. Alabama, 1946, involving the First Amendment); symbiotic relationship cases like Burton, 1961, in which the private owner of a restaurant in a government-owned parking garage was held to have violated the 14th Amendment by refusing to serve African-American customers; and some other cases in which there is a sufficient relationship between the supposedly private actor and the state. The operation of a privately-owned newspaper would not be state action under any of these theories, at least absent some special subsidy from the state. Note that candidate debates sponsored by at least some public broadcasting stations are considered to be nonpublic forums subject to some First Amendment constraints. See Arkansas Educ. Television Comm'n v. Forbes, 1998.

Others will know more than I do about the particular application of state action doctrine in election law cases.

Mark Scarberry
Pepperdine

-----Original Message-----
From: election-law-bounces@mailman.lls.edu [mailto:election-law-bounces@mailman.lls.edu] On Behalf Of Kenneth R. Mayer
Sent: Wednesday, April 06, 2011 7:41 PM
To: Bev Harris; election-law@mailman.lls.edu
Subject: Re: [EL] Anonymity and harassment

How is this even a question?  I'm not even a lawyer, and *I* know that the 1st amendment applies to government, not private entities.  Good heavens.

On 04/06/11, Bev Harris   wrote: