In the News Wall Street Journal: The Threat to Privacy of Opinion By Bradley A. Smith [O]n June 30, 1958, the Supreme Court held that Alabama’s demands for the NAACP’s member and donor information violated the organization’s and its members’ freedom of association. “It is hardly a novel perception,” wrote Justice John M. Harlan II, […]
Archives for June 2018
[O]n June 30, 1958, the Supreme Court held that Alabama’s demands for the NAACP’s member and donor information violated the organization’s and its members’ freedom of association. “It is hardly a novel perception,” wrote Justice John M. Harlan II, “that compelled disclosure of affiliation with groups engaged in advocacy may constitute [an] effective . . . restraint on freedom of association.” Alabama’s demand, he continued, “may induce members to withdraw from the Association and dissuade others from joining it because of fear of exposure of their beliefs.”
Today politicians routinely demand that the law be changed to require disclosure of names and personal information of donors to any organization that is involved in public affairs. Concerns about privacy are brushed off with the response that such donors no longer face any substantial threat. And it is true that few causes today generate the potential for violence that faced civil-rights protesters 60 years ago in the deep South.
But NAACP v. Alabama wasn’t a one-off. It was merely the most dramatic of a series of midcentury decisions that protect the right of Americans to support causes without fear of retaliation. The parties protected against compulsory disclosure include union members and organizers (Thomas v. Collins, 1945), those paying for flyers critical of business practices (Talley v. California, 1960), donors to charities (Bates v. Little Rock, 1960), and public-school teachers (Shelton v. Tucker, 1960), among others.
Retaliation from compelled disclosure remains a live risk in the contemporary political scene. Vandalism, boycotts and bullying by both online and real-life mobs are well-documented. In some cases, elected officials have used disclosure information to retaliate against citizens for their lawful support of organizations critical of those same officials.
NPR: As Secret Money Surges In Elections, The FEC Considers A Small Step For Transparency (In the News)
By Peter Overby
The FEC held two days of hearings [last] week. The discussion leaned toward the technical: font sizes, pixel counts and disclaimer-to-message ratios. The commission last tried to tackle the disclaimer issue in 2006, before concluding the internet was evolving so fast, it didn’t make sense to set standards…
USA Today analyzed some 3,500 Facebook ads from the Internet Research Agency, a Russian entity that was active in the efforts to sway the presidential contest. The newspaper found that more ads dealt with race issues than with the presidential candidates, and only about 100 ads fit the “express advocacy” category that the FEC would regulate.
A disclaimer skeptic, legal director Allen Dickerson of the conservative Institute for Free Speech, told the commission that if its proposed rule had existed in 2016, the effect would have been minimal. “It would have added a disclaimer to some set – some subset – of those 100 ads worth perhaps a few thousand dollars,” he said…
More broadly, Sen. Sheldon Whitehouse, D-R.I., said it’s become easier for big donors to avoid disclosure. “But that’s not a constitutional problem,” he said. “That’s a problem of political leverage and congressional spinelessness. And that can be corrected by pressure from the American people.” …
Whitehouse is the lead Senate sponsor of the DISCLOSE Act, one of several reform bills that congressional Democrats are preparing to rein in the secret money and tighten other gaps in campaign finance law.
Washington Post: FEC struggles to craft new rules for political ads in the digital space (In the News)
By Michelle Ye Hee Lee
The Federal Election Commission released two proposals in March for how political advertisers who are running small digital ads on mobile apps and new technological platforms could run truncated disclosures without obfuscating who paid for the ad.
After two days of hearings this week and more than 165,000 public comments and signatories, there was no clear consensus on which proposal to choose or how to meld the two, commissioners said Thursday.
“We’re going to some new place if we’re going anywhere” with the proposals, said Ellen Weintraub, the FEC’s Democratic vice chairwoman. “I’m not exactly sure where that place is.” …
Currently, all political committees that pay to run ads on a website must report their spending in public filings and include disclaimers on the ads that state the ads’ sponsors – just as they do for television ads.
But the commission has not drawn clear lines on what is required of small political ads online…
During the public hearings this week, those pushing for expanded disclosure requirements urged the agency to fast-track new rules to prevent malicious actors who may try to run political ads…
Others said expanding disclaimer requirements for small digital ads could impede on political free speech.
“If [the FEC] requires disclaimers that would objectively swallow a speaker’s underlying message, the commission will, in essence, be banning certain forms of political advertisements,” said Allen Dickerson, legal director of the Institute for Free Speech, which opposes limits on political speech and advertising.
NPR: Federal Election Commission Might Make Disclaimers Mandatory For Online Political Ads (In the News)
By Peter Overby
ELLEN WEINTRAUB: On their phone, on their desktop, on their laptop, on their tablets. However they are seeing information, they’re entitled to know where it’s coming from.
OVERBY: Commission Chairman Caroline Hunter, a Republican, was more cautious.
(SOUNDBITE OF ARCHIVED RECORDING)
CAROLINE HUNTER: I know we all share the desire to try to come up with a rule in this case, and I know we’ll work hard together to try to do so.
OVERBY: But the goal is limited to require disclosure only on ads that directly support or oppose a candidate. So take the Russian ads, the messages on Facebook and Google that sought to influence the 2016 presidential election. The newspaper USA Today did an analysis of some 3,500 Facebook ads from one Russian advertiser. There were more ads about race than about the presidential candidates. Lawyer Allen Dickerson of the deregulatory Institute for Free Speech cited that example to challenge the FEC’s approach.
ALLEN DICKERSON: At most, according to USA Today, only 100 Russian-backed Facebook ads supported or opposed candidates.
OVERBY: He said the proposed disclaimers would have had little impact on the Russian advertising.
DICKERSON: It would have added a disclaimer to some subset of those 100 ads worth perhaps a few thousand dollars.
In order for civic groups to be effective, Americans must be able to associate with their fellow citizens
privately. People behave differently when they are being watched, and this is especially true when people are monitored by the very government they are trying to reform. The right to privacy is therefore essential to the protection of First Amendment freedoms. To understand the vital relationship between privacy rights and freedom of association, we need only look to the landmark 1958 Supreme Court case, NAACP v. Alabama.
Filed Under: Featured Content
PDF available here “It is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy may constitute as effective a restraint on freedom of association as [other] forms of governmental action.” – NAACP v. Alabama, 357 U.S. 449, 462 (1958) The freedom to associate with others and speak as a group […]
Filed Under: Blog, Disclosure, Disclosure, Disclosure, Jurisprudence & Litigation, Associational Privacy, Donor Privacy, Harassment, NAACP, NAACP v. Alabama, Supreme Court, Disclosure, Jurisprudence & Litigation, Alabama
By Eric Wang
March for Our Lives, the student group that held nationwide rallies in the spring to decry school shootings, recently began a voter registration campaign across the country this summer. But laws restricting free speech will make them sweat a lot harder than they should.
Using the slogan and hashtag “#VoteThemOut,” the movement demands change in the most direct manner possible: by voting. But in doing so, the students will run into an elaborate maze of tax and campaign finance laws. These regulations stymie grassroots advocacy groups and effectively censor how they can speak…
The IRS relies on an extremely vague and broad “facts and circumstances” test to determine “political campaign intervention.” Under this standard, the agency may apply unspecified factors that it has not publicly disclosed in advance. The IRS warns that voter registration efforts that “have the effect of favoring a candidate or group of candidates  will constitute [political campaign] intervention.” In fact, the IRS denied 501(c)(4) status to an organization similar to March for Our Lives because the group’s plan to target voter registration to specific geographic areas or individuals that favor the group’s causes was campaign intervention…
As if the tax laws were not bad enough, the campaign finance laws add yet another layer of obstacles for groups like March for Our Lives. Thanks in no small part to certain commissioners at the Federal Election Commission, that federal agency is unlikely to stand in the way of grassroots activities. But state laws and regulatory agencies are a different matter. When March for Our Lives speaks on both federal and state gun laws, it risks getting entangled in a web of state speech laws.