For the past several months issues of privacy, especially when it comes to the Internet, have popped up repeatedly in the news. Double Click got spanked by the media and consumers because it wanted to track in detail how people surfed the web. A government anti-drug site recently made news because it was using browser cookies to track users, which embarrassed the Clinton administration because it has been on the forefront of attacking private companies over Internet privacy.
With all of this emphasis on privacy and the right of people to be free of agencies and companies tracking their every move, you’d think the usual suspects would have been crying to the heavens when the Senate passed a bill last week taking away the right to privacy for some forms of political speech. Instead, the bill to force political-action committees incorporated under section 527 of the federal tax code to reveal their donors was heralded as a giant step forward.
This is hardly a scientific survey, but a lot of the anti-secret political speech advocates probably agree with the sentiments expressed in a recent Christian Science Monitor editorial applauding the passage of the bill:
The question is whether the public has a right to know where the groups’ money is coming from. Since there is no essential activity in a democracy than fair and open elections, the answer, obviously, is yes. And despite constitutional arguments lobbed by some critics of reform, disclosure has no bearing on individuals’ rights to participate in the political process. Participation and openness about that participation should be inseparable. [Italics mine]
That last sentence is worth repeating: participation and openness about that participation should be inseparable. If someone wants to be anonymous, he or she should, according to the Christian Science Monitor, simply butt out of politics. This is a bizarre view that is completely at odds with the First Amendment.
There is no addendum to the First Amendment that says speech is only free to the extent that it is not anonymous. In fact, many of the crafters of the Constitution wrote anonymously or pseudonymously, the classic case being that of the Federalist Papers, but there was a ton of material published in Colonial America and then prior to the Constitution’s ratification that was done without identifying its origin.
It isn’t too hard to think of many instances in which writers and donors might not want their identity revealed. It wasn’t too long ago, in fact, when southern anti-integration activists tried to force the NAACP and other civil rights groups to disclose all of their contributors. Suppose the National Organization for Women sets up a PAC to attack George Bush’s record on abortion. Does the Christian Science Monitor really want to say that all contributors must be disclosed? Obviously if this is the case a lot of people such as abortion doctors, fearful of being targeted by anti-abortion extremists, might be severely deterred from contributing.
And if, in fact, the Monitor is serious that all participation in politics should require full disclosure of the persons involved, Americans can forget any idea about privacy on the Internet. A group of judges in Pennsylvania are suing an Internet site using the Monitor’s very reasoning. The site has a discussion area which allows people to post anonymously, and some of those anonymous posts criticized Pennsylvania judges. Pennsylvania has a law that forbids judges to engage in partisan activities, and the judges want the names of the posters revealed to see if any of the anonymous individuals are in fact judges.
The American Civil Liberties Union is defending the web site using a defense that would make the Monitor cringe — ACLU attorney Susan Yohe is arguing that removing the right to anonymous speech would have a chilling effect on free speech. This is also precisely what the Senate’s bill removing anonymity for donors to certain non-profit groups will do — chill political speech and reduce the range of voices and positions heard. In its editorial the Monitor claimed the bill was “a credible start” to campaign finance reform, but rather it’s a continuation of the constant cheeping away of Americans’ First Amendment rights.
Sources:
Money With a Name on It. The Christian Science Monitor, July 3, 2000.
Web site criticism draws legal complaint. Pittsburgh Tribune-Review, June 30, 2000.