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Does the original meaning of the First Amendment protect a right of privacy in campaign contributions?

By on October 21, 2013 10:55 pm in Anonymity, Constitutional History, Constitutional Law, First Amendment, Originalism, Restrictions on Campaign Contrbs. and Expenses

My Independence Institute colleague Rob Natelson examines the question from an originalist perspective, in a new working paper published on SSRN. His analysis is summarized in this blog post on his website. In brief: political contributions are best analyzed as a form of Freedom of the Press. The Freedom of the Press includes the right to anonymous authorship. The right can be breached in cases of abuse, as when a civil libel plaintiff needs to discover the identity of the person who libeled him.

Some readers may disagree with the first part of Rob’s analysis, but the point about the right to exercise the Freedom of the Press anonymously seems indisputably correct. Rob extends the anonymity argument far beyond the points made by Justice Thomas in his Citizens United concurrence. [...]

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No Right to Anonymously Visit Government Meetings

By on March 18, 2013 12:37 am in Anonymity, Freedom of Speech

An interesting decision in Paridon v. Trumbull County Childrens Servs. Bd. (Ohio Ct. App. Mar. 11, 2013) (some paragraph breaks added):

At issue is whether appellee, Trumbull County Children Services Board …, may require attendees of its public meetings to sign in before being admitted to such meetings….

[Appellants allege] they attended a public meeting of the board, but that they were not permitted to enter the meeting unless they signed a sign-in sheet, pursuant to the board’s sign-in procedure. Appellants alleged that the board’s rule violated Ohio’s Sunshine Law ….

Nicholas Kerosky, Executive Director of the Trumbull County Children Services Board, testified on cross-examination that the board has a written policy, which prohibits members of the public from entering the board’s building unless they sign in and state the nature of their visit. The written policy, which was admitted in evidence, provides that these security measures are necessary due to the “sometimes volatile nature of child welfare.”

Mr. Kerosky testified that this written policy applies whether the person is visiting the board’s facility during the board’s usual business hours to conduct business or in the evening to attend the board’s meetings.

Mr. Kerosky testified the purpose of this policy is to protect the children in the care and custody of the board, who reside in the board’s facility, and also to protect the confidential records maintained there by the board.

Mr. Kerosky said the board does not verify the name of those persons who sign in by requiring them to produce their driver’s license or other form of identification. Nor does the board perform any check on these individuals, such as a criminal history check. Thus, any member of the public is permitted to attend a meeting of the board by simply signing in….

The board’s meetings are held

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Tennessee County Seeks to Identify Authors of About Ten Thousand Comments

By on August 10, 2012 1:37 pm in Anonymity, Freedom of Speech

So reports Paul Alan Levy (Public Citizen Consumer Law & Policy Blog), with links to various documents, including the letter objecting to the subpoena, which in turn includes the subpoena as Exhibit A:

Shelby County, a government body in the southwestern corner of Tennessee that contains the city of Memphis, has subpoenaed Memphis’ daily newspaper, the Commercial Appeal, seeking to identify the authors of roughly ten thousand anonymous comments that have been posted to 45 different stories on the paper’s web site….

The subpoena arises out of a controversy about a proposed consolidation of school districts sought by the county commission. The consolidation has been highly controversial, and attracted extensive coverage by the local media, including many stories in the Commercial Appeal. The comments section of the various Commercial Appeal stories came to be a significant forum for community discussion of the issue. The debate raged in heated terms, with a number of comments reflecting racist views, as some citizens opposed the proposed consolidation because they were afraid that it would increase their children’s exposure to black children. Some comments were posted in sufficiently uncouth terms that the Commercial Appeal removed them for violation of the web site’s terms of service. Eventually the Tennessee Legislature passed a law that interfered with the consolidation plan, authorizing local jurisdictions to vote on whether to establish their own school districts, and Shelby County has sued to block the law, claiming that its purpose is to perpetuate segregation.

Although Shelby County has yet to articulate its precise reason for seeking the subpoena, our best guess is that the identities are being sought to help prove the discriminatory animus behind the legislation. The argument appears to be that, if the comments identify particular members of the public as racist, and if other evidence

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Nearly Half the New York Assembly Republicans: Require Deletion of Anonymous Comments Whenever Anyone Complains

By on May 3, 2012 11:54 pm in "Bullying" Bans, Anonymity

Twenty-three of the forty-nine New York Assembly Republicans, plus one Independent and one Democrat, introduced this bill last Fall but just “unveiled” it yesterday:

1. Definitions. As used in this section, the following words and terms shall have the following meanings:

(a) [“]Anonymous poster[“] is any individual who posts a message on a web site including social networks, blogs forums, message boards or any other discussion site where people can hold conversations in the form of posted messages.

(b) “Web site administrator” means any person or entity that is responsible for maintaining a web site or managing the content or development of information provided on a web site including social networks, blogs forums, message boards or any other discussion site where people can hold conversations in the form of posted messages, accessible via a network such as the internet or a private local area network.

2. A web site administrator upon request shall remove any comments posted on his or her web site by an anonymous poster unless such anonymous poster agrees to attach his or her name to the post and confirms that his or her IP address, legal name, and home address are accurate. All web site administrators shall have a contact number or e-mail address posted for such removal requests, clearly visible in any sections where comments are posted.

It’s not clear what it means to “confirm” that one’s IP address, legal name, and home address are accurate; but at the very least, this bill would require a Web site administrator — me, for instance, if I were found to subject to New York jurisdiction — to remove any comment unless the commenter signs his name to it.

Nor would this be limited to comments that allegedly libel someone, or even insult someone (though that [...]

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Criminal Defendant Outs Anonymous Web Site Commenter — Who Turns Out to Be One of the Prosecutors

By on March 20, 2012 10:40 am in Anonymity

Ars Technica reports; the New Orleans Times-Picayune reports that the prosecutor is being investigated by the Justice Department for possible violations of Justice Department policies. An excerpt from Ars Technica (read the whole thing, which also includes many links):

A federal investigation involving New Orleans landfill magnate Fred Heebe took a surprising turn this week. Heebe filed a court petition (PDF) claiming a frequent commenter on local-news site NOLA.com was in fact Sal Parricone, one of the prosecutors assigned to his case. Heebe turned out to be right.

The commenter took regular shots at Heebe and his family, seeming to know more about the case than an average reader of the site might….

So Heebe hired a former FBI forensic linguist, James R. Fitzgerald, to analyze 598 comments made over the course of 6 months by a commenter using the handle “Henry L. Mencken1951”. Fitzgerald, who also worked on the arrest and prosecution of Unabomber Ted Kaczynski, compared the comments made by “Mencken1951” to the language in a 9-page proceeding filed by three Assistant U.S. Attorneys, including Parricone, against the CEO of Heebe’s company, River Birch Landfill. The language was strikingly similar. Given that Parricone was born in 1951, Heebe singled him out in the court petition. On Thursday afternoon, U.S. Attorney Jim Letten confirmed Perricone had used the “Henry L. Mencken1951” handle.

UPDATE: Parricone has resigned. (Note that he’s eligible for retirement.) Thanks to commenter summerslex for the pointer. [...]

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Ahmed Rushdie

By on November 15, 2011 2:32 pm in Anonymity

An interesting New York Times article about Facebook and people’s identities:

The writer Salman Rushdie hit Twitter on Monday morning with a flurry of exasperated posts. Facebook, he wrote, had deactivated his account, demanded proof of identity and then turned him into Ahmed Rushdie, which is how he is identified on his passport. He had never used his first name, Ahmed, he pointed out; the world knows him as Salman.

The writer Salman Rushdie objected when Facebook tried to use his name as it appeared on his passport, and nowhere else.

Would Facebook, he scoffed, have turned J. Edgar Hoover into John Hoover? …

The Twitterverse took up his cause. Within two hours, Mr. Rushdie gleefully declared victory…

The article then goes on to more broadly discuss real-name requirements imposed by social networks such as Facebook, and some of the implications of these requirements — very interesting. Note the closing paragraph:

Mr. Rushdie, who once lived incognito because of death threats, has more recently been busy revealing himself on Twitter. He had to fight for his online name there as well. An imposter was using the Twitter handle @SalmanRushdie earlier this year, and Mr. Rushdie had to ask the company for help reclaiming it. Now his page bears Twitter’s blue “Verified Account” checkmark and quotes Popeye: “I yam what I yam and that’s all that I yam.”

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Anonymous Speech, Subpoenas and Internet User Identities, and Government Investigations

By on October 10, 2011 7:24 pm in Anonymity, Freedom of Speech

Over the last several years, various courts have held — in cases such as Dendrite Int’l, Inc. v. Doe No. 3 and Doe v. Cahill — that the First Amendment provides substantial, though limited, protection against subpoenas aimed at unmasking anonymous commenters; for more details on that protection, see this EFF analysis. But last week, Doe v. United States (N.D. Cal. Oct. 4, 2011) held that such rules generally do not apply to government investigations, here by the SEC, as opposed to investigations by private litigants. I just thought this was worth noting for readers who follow such matters. [...]

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Subpoena for Library Records

By on October 3, 2011 5:27 pm in Anonymity, Freedom of Speech, Privacy

There has been a lot of controversy in the past about whether the government should be free to subpoena library records or bookstore records, or execute search warrants for such records. (See, for instance, this post of Orin’s, this Congressional testimony by Orin, and pp. 30-37 of this article of mine.) I just ran across a case that dealt with this question in an unusual context — where the defendant’s alibi involved his supposedly returning a certain book to the library, State v. Hilton (Wash. Ct. App. Sept. 27, 2011):

Mr. Hilton’s remaining arguments are that the records were private under both Const. art. I, § 7 and the Public Records Act (PRA), chapter 42.56 RCW, and protected by the First Amendment and Const. art. I, § 5. In particular, he cites to RCW 42.56.310, which provides that a library record that “discloses or could be used to disclose the identity of a library user is exempt from disclosure under this chapter.” The emphasized language makes short work of Mr. Hilton’s PRA argument. The PRA provides an exemption from disclosure pursuant to a public records request. It does not create a privilege, let alone a privilege exempt from judicial process. See RCW 42.56.050; Brown v. Johnston, 328 N.W.2d 510 (Iowa), cert. denied, 463 U.S. 1208 (1983). Similarly, Const. art. I, § 7 prohibits intrusion into “private affairs” absent “authority of law.” A subpoena is “authority of law.” Gunwall, 106 Wn.2d at 69. Mr. Hilton’s argument is without merit.

The free speech argument fares no better. Mr. Hilton appears to predicate his claim at least in part on the theory that the SIJ [Special Inqury Judge] proceedings were invalid, an argument we have already rejected. His sole authority is a Colorado case, Tattered Cover, Inc. v. City

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The Costs of Campaign Contribution Disclosure

By on April 10, 2011 10:47 pm in Anonymity, Elections

James L. Huffman, former Dean of Lewis & Clark Law School and the 2010 Republican nominee for Senate from Oregon, has an op-ed in Monday’s WSJ explaining how his experience as a political candidate convinced him that mandatory disclosure of campaign contributions is a bad idea.

The reality is that public disclosure serves the interests of incumbents running for re-election by discouraging support for challengers. Here’s how it works.

A challenger seeks a contribution from a person known to support candidates of the challenger’s party. The potential supporter responds: “I’m glad you’re running. I agree with you on almost everything. But I can’t support you because I cannot risk getting my business crosswise with the incumbent who is likely to be re-elected.” . . .

Disclosure makes threats possible, and fears of retribution plausible. Within weeks of a contribution of $200 or more, the contributor’s name appears on the public record. Contributors know this, and they know that supporting the challenger can, should the challenger lose, have consequences in terms of future attention to their interests. Of course no incumbent will admit to issuing threats or seeking retribution, but the perception that both exist is widespread.

The reality of that perception alone should give us pause about disclosure requirements. And it would be naïve to believe that the perceptions have no basis in reality.

He makes some good points, but I am not entirely convinced. There are strong arguments for disclosure. Among other things, it gives voters additional information and could make it easier to assess corruption claims. Huffman argues that since federal law caps campaign contributions at $2,400, disclosure does not do much to prevent corruption, but does discourage support of challengers. More to ponder. [...]

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North Carolina Department of Revenue’s Demand for Amazon Customer Records Violates the First Amendment

By on October 26, 2010 4:17 pm in Anonymity, Cyberspace Law, Freedom of Speech

So holds Amazon.com v. Lay (W.D. Wash., decided yesterday):

Amazon pursues summary judgment as to its First Amendment claim that the DOR’s request for all information related to Amazon’s sales to North Carolina residents violates the First Amendment. The Court agrees and GRANTS the motion.

The First Amendment protects a buyer from having the expressive content of her purchase of books, music, and audiovisual materials disclosed to the government. Citizens are entitled to receive information and ideas through books, films, and other expressive materials anonymously. In the context of distribution of handbills, the Supreme Court held that anonymity “exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular.” McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 357 (1995); Talley v. California, 362 U.S. 60, 64 (1960) (protecting anonymity in handing out campaign literature). The fear of government tracking and censoring one’s reading, listening, and viewing choices chills the exercise of First Amendment rights. In a concurring opinion, Justice Douglas highlighted the deleterious effect of governmental meddling in the reading habits of its citizens: “Some will fear to read what is unpopular what the powers-that-be dislike. When the light of publicity may reach any student, any teacher, inquiry will be discouraged.” United States v. Rumely, 345 U.S. 41, 57-58 (1953) (Douglas, J., concurring).

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The Future of Privacy: Facial Recognition, Public Facts, and 300 Million Little Brothers

By on June 11, 2010 10:06 pm in Anonymity, Cyberspace Law, Internet, Privacy

It’s been a pleasure to blog this week.  I hope you’ve enjoyed this conversation and I’d love to continue it.  If you’re interested in reading more, check out our book, Wild West 2.0.  It is the most-discussed Internet policy book of 2010 (Jimmy Wales called it “an invaluable guide” to the “brave new world of the Internet”) and it sold out Amazon.com once already.  Or, contact me directly through my site at davidcthompson.com.  Thanks again to Eugene and the whole Volokh Conspiracy for inviting me to participate this week.

This week, we’ve discussed the “Wild West 2.0” metaphor for the Internet.  Today, I’m going to present a few quick ideas that didn’t make it into this week’s posts.   I don’t have enough space to flesh them all out, but I hope to provoke some thoughts and discussions that will continue beyond this week.

What will widespread surveillance and facial recognition do to privacy?

It’s always been the law in the U.S. that images you take in public are yours to use non-commercially.  There are a few exceptions around security, peeping Toms, and so-called “upskirt” photography, but basically you can take a photo from any public place and make any non-commercial use of it.

There are good reasons for this policy, ranging from a basic respect for the free press and free expression, to the First Amendment.

But, today, facial recognition is quickly becoming available on a wide scale.  For just one example, an application called Face.com allows Facebook users to use photo recognition to find their friends in photos (even if they have not been tagged, or if they have removed their tag).  Using the tool, it’s often possible to find hundreds of untagged photos of your friends (or yourself) posted by other people.

The Face.com developers [...]

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Fixing the CDA 230 Subsidy While Preserving Online Anonymity

By on June 10, 2010 8:33 pm in Anonymity, Cyberspace Law, Internet

Thanks again for the great responses in comments.  I’ve learned a lot about how people think about the Internet of 2010 and whether it fits the “Wild West 2.0” model.

On Monday, we discussed why the Internet of 2010 resembles the closing of the Wild West frontier.  On Tuesday, we talked about whether CDA 230 is appropriate for the Internet of 2010.  Yesterday, we talked about why CDA 230 is a subsidy to online libel.

Today, I want to present some ideas to preserve the best parts of anonymous free expression, while fixing the subsidy that Section 230 of the Communications Decency Act gives to libelous speech.  I’d love to hear your thoughts.

Online Anonymous Speech is a Good Thing

Anonymous online speech can be powerful and beneficial.  You are free to leave anonymous or pseudonymous comments on this site, which encourages free discussion of political issues.  Protesters in Iran can spread ideas, corporate whistleblowers can speak out, and the government is deterred from at least one form of intrusion into personal life.  On a personal level, you can explore your identity, research controversial causes or issues, or just vent frustration.  All of these are good things and worthy of preservation.

But in the offline world there is also accountability for anonymous speech that is libelous or invasive of privacy.  By taking control of the media away from The New York Times and putting it in the hands of individual bloggers, the Internet have empowered free expression and opinion, but also empowered hundreds of millions of people to anonymously libel each other and invade each others’ privacy.

Updating the Assumptions Underlying CDA 230

CDA 230 was based on a number of guesses about how the Internet of the then-future would work.  We’ve had almost fifteen years to [...]

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Google Changed Reputation and Privacy Forever

By on June 10, 2010 2:13 am in Anonymity, Cyberspace Law, Internet

In the early Internet, it was impossible to find isolated references to people, places, and things.   Many users navigated using directories like the original Yahoo, and early search tools like Gopher (structured documents) and Archie (FTP) were limited .

The search engines changed everything.  Starting with Lycos and AltaVista, information was freed from obscurity.  Suddenly, no matter where on the Internet your name might be mentioned, a search engine could find it.

On Monday, we discussed why the Internet is a new frontier.  On Tuesday ,we questioned whether Section 230 of the Communications Decency Act of 1996 still fits the Internet of 2010.  Today, I’ll explain how the rise of search engines since 1996 has changed reputation and privacy, and why CDA 230 subsidizes libel by preventing speakers and facilitators from internalizing the costs of their actions.

Google Has Changed How Information is Consumed

I don’t think Google is evil.

But Google is far from perfect.  Google creates the illusion that just ten search results reflect some meaningful judgment on a person’s life.  For example, the top five Google search results for any search term get 88% of the clicks.  The over-attention given to the first few Google results is partly user error, but it’s also a form of rational ignorance on the part of searchers: Google gives good enough results most of the time, so there is little incentive to look deeper.

The attention given to the first few Google results would be fine if Google always provided accurate, balanced, and relevant information.  Unfortunately, it doesn’t.  Google has no way to measure whether websites contain information that is true, fair, or proportionate.  Instead, Google uses rough heuristics—most notably the number of links to a page—to try to calculate a page’s popularity.  Popularity substitutes for relevancy, often [...]

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The Communications Decency Act of 1996 Meets the Closed Frontier

By on June 8, 2010 12:15 pm in Anonymity, Cyberspace Law, Freedom of Speech, Internet

(Thanks for the great comments!  I’ll be speaking in Las Vegas this afternoon 3:45 pm today at the EduComm conference at the Mirage, Ballroom D.)

Anonymous and pseudonymous speech dates back at least to the early days of the printing press.   Anonymous online speech has been a powerful force for change in situations ranging from simple campus disputes to political protests in Iran.  And the technology of the Internet makes it unlikely that any attempt to eliminate anonymous speech could succeed.

That said, the fact that there always will be anonymous online communication does not tell us whether it deserves subsidy.  Yesterday, I explained why the Internet is a new frontier.  Today, I challenge that Section 230 the Communications Decency Act of 1996 provides a subsidy to anonymous online speech, and ask whether that subsidy is sustainable in the closed frontier era of the Internet.

To be clear: I am in favor of anonymous online speech, and sometimes I’m also a user of it.  I disagree strongly with Eric Schmidt’s opinion of privacy and anonymity.  My goal this week is not to destroy anonymous online speech, but instead to figure out how to best preserve its value while curbing abuses, especially in light of the growing regulatory pressure that arises at the close of a frontier.

Offline Speech Combines Practical Anonymity with Legal Accountability

Offline, speech has never been absolute.  In the offline world, the right to speak comes also comes with the responsibility of the familiar speech torts.  If someone publishes false statements about you, you can sue them for libel.  If someone publishes “peeping tom” photos of you or other true-but-private information, you may sue them for invasion of privacy (and they may also be criminally prosecuted).  And so on.

What makes this legal regime [...]

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Pennsylvania Attorney General Tom Corbett Subpoenas Identity of His Critics, for a Criminal Probe

By on May 19, 2010 12:00 pm in Anonymity, Freedom of Speech

TechCrunch reports on this subpoena issued to Twitter, seeking the identity of two twitterers that had apparently been critical of Corbett.

The striking thing is that this is a subpoena to provide evidence in a criminal investigation. If it had been a subpoena related to a civil libel lawsuit, then either Twitter or the anonymous poster could try to quash the subpoena, and then the court would have to decide whether the plaintiff had, at least, a legally sufficient libel case (i.e., the statements were factual allegations and not opinions, and there was some reason to think the factual allegations were false). If the plaintiff did have such a case, then the plaintiff would indeed be able to discover the identity of the defendant, so he could know whom to sue, and so he could get further factual information relevant to the case (such as what the defendant knew about whether the statements were true or false). That’s the emerging rule in many states (though there are important variations in detail). There are no Pennsylvania appellate cases on the subject, but I expect that Pennsylvania courts will follow this rule, as several Pennsylvania trial courts in fact have.

But this is a grand jury subpoena, so presumably the theory is that the subpoenas are relevant to some criminal investigation. My sense is that one should be able to quash such a subpoena as well, if there is no legally sufficient basis for the investigation, or for the conclusion that the information would be relevant to the investigation. Yet that requires us to know what is being investigated. It can’t be an investigation of libel, since Pennsylvania doesn’t have a criminal libel statute. In principle, since some tweets from the relevant twitterers might be read as accusing Corbett of criminal misconduct, [...]

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