PUBLIUS WAS NOT A PAC

V. Anonymous Speech and the First Amendment: Varied Protection

Although courts give passing recognition to the importance of anonymous speech and political privacy in the campaign finance realm, resulting legal protection for anonymous speech is hardly sufficient. Some reformers, including several U.S. senators, defend campaign finance laws with platitudes about limits on speech, equating political speech with slander, libel, obscenity, and the greatest cliché: “scream[ing] ‘fire’ falsely in a crowded theater.”137 This is simplistic at best, and at worst, deceptive. However, the Supreme Court’s wide body of First Amendment case law, though largely free speech friendly, provides the reform community with a great deal of material on which to base new models of
speech restrictions. More aggressive pushes for all-encompassing disclosure and transparency are the latest restrictions, their expansion has followed the loss of other speech restrictions.

This section summarizes current levels of protection the law affords anonymous speech. It explores how the courts have recognized great protections for associational privacy (or speaking as an organization) and minimally expensive political speech, yet have drastically departed from these presumptions in campaign finance law. Following Citizens United, reformers and the FEC say donors should be disclosed (even forced to regularly register and report as a political committee) just to spend more than $1,000 speaking about political issues.138 This section argues in support of new and more rigorous standards to protect the important rights of anonymous speech and political privacy.

A. Anonymity Recognized: Association and Less-Effective Speech

At times, the Supreme Court has recognized the importance political privacy and anonymity play in safeguarding fundamental freedoms. This protection has extended to the rights of free speech, association, petitioning, and protection against government retaliation. But the Court has been hesitant to develop a comprehensive, uniform doctrine protecting these rights.

The courts have recognized the importance in safeguarding the fundamental freedom of association. In NAACP v. Alabama, the Court understood that effective “advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association.”139 As understood by the NAACP Court, protection of political privacy in turn protects the right of association given that few people are willing to associate if they know they will be subject to harassment or retaliation.140 When analyzing whether privacy should attach to a specific organization, the subject matter communicated by a group plays no role in deciding the relevant constitutional protection.141 Organizations focused on laissez-faire economics, same-sex marriage, and Rastafarianism are protected equally. Thus, whenever government action impedes the right of association, it is “subject to the closest scrutiny.”142

The Court also recognized the importance of political privacy in vigorously supporting speakers acting alone, with few funds, and addressing a matter of local concern.143 In McIntyre v. Ohio Elections Commission,144 the Supreme Court invalidated the Ohio prosecution of a lone pamphleteer anonymously opposing a school tax levy.145 The McIntyre Court understood that throughout history, persecuted groups and dissidents particularly benefited from the protections of anonymity.146 And in the field of “political rhetoric, where the identity of the speaker is an important component of many attempts to persuade . . . the most effective advocates have sometimes opted for anonymity.”147

McIntyre illustrates that the Supreme Court understood the historical importance of anonymous speech. “On occasion, quite apart from any threat of persecution, an advocate may believe her ideas will be more persuasive if her readers are unaware of her identity.”148 In other words, deciding to speak anonymously is as much a way to communicate (preserving the purity of the argument) as it is to protect privacy. In support of this notion, the Court explained:

American names such as Mark Twain (Samuel Langhorne Clemens) and O. Henry (William Sydney Porter) come readily to mind. Benjamin Franklin employed numerous different pseudonyms . . . . Distinguished French authors such as Voltaire (Francois Marie Arouet) and George Sand (Amandine Aurore Lucie Dupin), and British authors such as George Eliot (Mary Ann Evans), Charles Lamb (sometimes wrote as “Elia”), and Charles Dickens (sometimes wrote as “Boz”), also published under assumed names. Indeed, some believe the works of Shakespeare were actually written by the Earl of Oxford rather than by William Shaksper of Stratford-on-Avon.149

The Court protected Ms. McIntyre’s political privacy, reasoning that while unpopular speakers might suffer the greatest burdens, “we assume the statute evenhandedly burdens all speakers who have a legitimate interest in remaining anonymous.”150 Exactly what constitutes this “legitimate interest” remains unanswered from the Court.

The Supreme Court has also recognized the right of individuals to protect their privacy in sensitive areas of political association. For example, the Court found citizens have the right to refuse answering government officials’ questions regarding their political involvement. In DeGregory v. Attorney General of the State of New Hampshire, the Court reaffirmed the damage from forced disclosure of “one’s associational and political past-exposure which is objectionable and damaging in the extreme to one whose associations and political views do not command majority approval.”151 The particular damage at issue is found in forcing individuals who hold unorthodox, unpopular, or dissident views to
disclose their identities. From this forced disclosure follows a variety of related injuries—government retaliation through abusive investigation as well as societal or economic injuries by means of boycotts. In DeGregory, as in several other similar cases, the Court required the government to show an “overriding and compelling state interest” supporting forced disclosure.152 Thus, as these cases show, where the government has initiated inappropriate investigations, the Court will uphold political privacy of some groups with fortunate regularity.

Even with the recognition of the import of political privacy, the Court has placed great, but not insurmountable, burdens on speakers hoping to realize this very protection. In NAACP, the Court upheld the right of political privacy and invalidated mandated disclosure because of the group’s “showing that on past occasions revelation of the identity of its rank-and-file members has exposed these members to economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility.”153 Thus, in order to establish the right of political privacy, one’s views must be so disfavored that others might attack or fire members of the group for espousing such views. Today, some reform advocates suggest NAACP applies only to poor people or minorities, based on the “values” of the case, and thus its protections should not be applied “equally to all speakers, regardless of their relative station in society.”154 However, this analysis must be adjusted so future generations of all speakers need not lose their livelihood or be injured in order to enjoy political privacy.

One trend emerges after surveying touchstone cases concerning political privacy and anonymous speech: The Supreme Court understands the historical importance of anonymity and is willing to protect it when an active government campaign of suppression or prosecution is underfoot. While it is certainly commendable the Court has, with some frequency, protected these rights, it is only apt to do so under the most pressing of circumstances.155 But when government moves more surreptitiously or causes harms that are difficult to detect, little protection is available for speakers. Subtler scenarios present the question whether existing judicial doctrine is sufficiently robust to protect would-be anonymous
speakers should they seek to engage in non-disclosed speech. The answer identified by these authors is no. A helpful way to see how existing precedent fails to protect many speakers is detailed below.

Suppose two different hypothetical groups of firearm aficionados gather separately to rally the public about their cause of choice in 2014. The first group, Patriots for a Revolution, believes a coalition of Jewish dissidents control the highest branches of government thus necessitating an immediate revolution. Put mildly, their views could be described as anti-Semitic and radical. Their activities include door-to-door visits, pamphleteering, and infrequent Internet publications. The group has been known to disrupt local Tea Party gatherings, get kicked out of town hall meetings, and is frequently denied parade licenses. The group’s most recent campaign focuses on arming elementary children with weapons in protest against the government. In the past year, the group has received two threatening voicemails suggesting their members will be “silenced permanently” if their antics continue. One member’s car tires were slashed after petitioning local government about his group’s views. Under existing case law, Patriots for a Revolution could likely successfully apply for legal protection for political privacy given its extreme views and the threats levied against it.156

Now consider the fate of a second organization, Patriots for a New Alliance. This group believes the Obama Administration is harming America, supports an aggressive recall campaign of public office-holders nationwide, frequently protests left-of-center organizations, and maintains an active Internet presence. The group secures seed funding from one wealthy donor with active federal and state government business dealings. It also secures minor funding from community participants. In the past year, it has held three roundtable events, inviting progressive think tank leaders and Democrat officeholders to debate their leaders over a number of issues. No one has threatened the organization or its members, nor has any member to date been injured. The primary funder, however, is reticent. He wishes to preserve his political privacy and participation with the organization due, in part, to his business interests. Other members wish to preserve their privacy simply due to their own principles. Under existing case law, and especially under the NAACP standard, Patriots for a New Alliance would likely not receive protection for political privacy because the organization’s views are closer to majoritarian preferences and no one levied serious threats against the organization.

Examine another variation on this theme. Suppose the National Rifle Association (NRA) decides to aggressively expand its public outreach combatting school violence.157 Its public messaging campaign involves gruesome images of Holocaust massacres superimposed on a disarmed American public. Two subgroups of the NRA are funding and conveying these messages in very different parts of the United States. The first NRA subgroup spends $1.25 million on an advertising blitz across rural Alabama where membership lists and donations blossom as a result, even when faced with minor public retaliation. The second NRA subgroup spends an equal amount on advertisements in the urban Portland, Oregon, area. After its first day of advertising, ten billboards are burned, two boycotts develop, and one member receives a death threat. Under existing precedent, the First Amendment would treat speakers in rural Alabama much differently than those situated in Oregon. Alabama speakers would not receive anonymity protection, while those on the other side of the country would receive robust First Amendment protection. Due to the asymmetry of existing doctrine, certain types of speech in some parts of America receive the gold standard of First Amendment protection while others receive very little protection. The First Amendment should be applied no differently in Malibu, California as in Casper, Wyoming. Given that current precedent has an asymmetrical bias toward preferring political privacy for the most extreme speakers, a few simple changes could help the courts move toward more symmetrical, uniform protection. The reason why such disparate results occur under the above example stems from foundational doctrines developed by the Court. The Supreme Court’s frequent jurisprudential experiments often result in accordion-like judicial tests for deciding the constitutionality of an issue over time. In many instances, the Court retracts from expansive and intricate tests in favor of simplicity, as most recently seen in Citizens United.158 While the Court had, for a time, signaled that more flexible balancing tests would be appropriate to determine the level of protection given to some forms of political speech, it discontinued this approach in favor of simple and clear benchmarks.159 This was due to, in part, the unworkability of the previous doctrine the Court had developed.160

So too may the Court revisit its asymmetrical anonymity doctrine. Courts may simply recognize the inherent First Amendment value of political privacy and anonymity and grant it full, prospective protection.161 This requires eliminating many balancing tests and complicated judicial doctrine. Although these formulas adequately protected anonymity in crisis situations or for the most persecuted or radical organizations, a broader doctrine would afford the same protection for all classes of speakers in all situations. Thus, instead of waiting for an abusive government investigation into the operation of a civil rights group, that group could rest assured in absolute prospective protection. Instead of becoming a marginalized radical group before receiving the protection of anonymity, all classes of speakers would be protected. This approach is tied to a principle endorsed by the Framers and the Supreme Court, chiefly, “the people in our democracy are entrusted with the responsibility for judging and evaluating the relative merits of conflicting arguments.”162

Evaluating current anonymity doctrine requires asking an implicit value question.163 For the NAACP Court, protecting the anonymity of disfavored, minority speakers proved important, but only upon a strong showing of serious harm.164 This only begs the question why must citizens wait to have their lives destroyed, or face serious injury, before their rights are realized? In the context of the Fourth Amendment’s protection against unreasonable searches and seizures, we do not afford protection only to disfavored groups that have been harassed by police officers.165 Nor do we align the Second Amendment’s protection to groups who show they are subject to crime or harm.166 When it comes to the question of protecting political privacy, existing precedent asks citizens to put their livelihoods and reputations on the line before the judiciary will protect them. More uniform and objective protection would proactively prevent much government harassment and would, at a minimum, offer a remedy at law where government did abuse speakers’ rights. First Amendment precedent needs to evolve to offer uniform protection like that realized in other areas of constitutional concern to prevent against the harms outlined in this article. As discussed later, an excellent start is found in applying the strict scrutiny standard to all disclosure systems.167

Courts must seriously question whether existing judicial doctrine is sufficiently robust to protect political privacy and anonymity. Following existing precedent, anonymity may be realized (1) retroactively or during the midst of government abuse, or (2) prospectively for a handful of organizations that can make a showing of serious harm or abuse as a result of exercising First Amendment freedoms.168 We may simply build on this trend, developing more conditions and subconditions where political privacy would be recognized. With the recent tragedy at Sandy Hook,169 for example, courts might recognize broad privacy interests related to speech and association concerning Second Amendment issues. As new controversies of the day arise, from abortion to international intervention and every point in-between, the courts could create a hodgepodge of balancing tests further protecting various aspects of political privacy. These future controversies might work to protect certain issues and groups on a case-by-case basis.170 But this approach would sacrifice the sensibility of protecting political privacy in a broad, uniform manner at the expense of a slow, evolutionary development of complicated balancing tests. Another alternative protects political privacy in a more uniform and meaningful way.

Under the current doctrine, and under the above examples, individuals conveying deeply anti-Semitic messages receive greater First Amendment protection than individuals conveying more mainstream ideas. Consider the type of society you prefer to live in. Is it one where voices of political concern are marginalized and encouraged by government action to become more extreme, loud, and erratic so political privacy is achieved? Or one where everyone’s voice is welcome, whether they identify themselves or not, and we trust citizens to engage in responsible civic public debate about these issues? One model of thought—currently subscribed to by the courts—supports hyper-partisanship as a means of securing political privacy and pushes more moderate voices to the wayside. But an emerging model of thought, one espoused in this article, asks why citizens must first be injured, threatened, or believe in the most outlandish causes just to receive adequate First Amendment protection in the first place. This experiment has gone far enough. A free society should protect everyone’s political privacy and not leave it as a luxury for the most extreme elements of our society.

The approach suggested by these authors is much more simple, fundamental, and workable than a hodgepodge of judicial doctrines only sometimes protecting political privacy. At the same time, enhanced clamoring about the supposed beneficial consequences of “disclosure” and political pressure for campaign finance reform will likely limit legislative options moving in that direction. This is an unfortunate reality: more speakers must suffer abuse or self-censor due to insufficient First Amendment protection.171 However, as bullying, retaliation, and threats continue in the political process, opportunities to refine existing doctrine will emerge. The chilling facts of these cases will eventually become too much for the law to bear,172 and courts should afford themselves the opportunity to streamline complicated doctrine toward simpler and more speech-protective tests.

B. Moving Forward: Adopting a Bright Line Approach

As it stands today, serious problems plague the preservation of First Amendment political privacy related to campaign finance disclosure. Mechanically, existing regimes regulate with blurry lines, making compliance difficult and pushing many out of political discourse entirely.173 Substantively, the positive value of political privacy has been largely undone, leaving its protection to the most radical elements of our society.174 At the same time, the relative value of disclosure is viewed positively as to its superficial operation.175 To rectify these problems and better protect political privacy, a few enhancements to election law are suggested.

Although wholesale protection of political anonymity in any form would provide the most respect for free speech, more immediate, practical steps are available. Toward this end, there are four suggestions to enhance meaningful political privacy:

1. Ensure full protection of anonymity for issue advocacy speech.
2. Eliminate ad hoc judicial determinations to uphold political privacy.
3. Require simple disclosure, not PAC burdens, where it is properly invoked and review these regulations with strict scrutiny.
4. Insist on higher aggregate contribution or expenditure thresholds triggering disclosure regimes.

The first suggestion requires courts to recognize that some speech, whatever its boundaries, is entitled to anonymity under the First Amendment. Clear lines and well-distinguished judicial reasoning help guide prospective speakers, ensuring people understand where regulated speech ends and free speech begins. No matter the area of First Amendment jurisprudence, the Supreme Court is stringent on protecting against overzealous and overbroad applications of legitimate laws.176 This is shown in the context of anti-obscenity measures, torts, and other areas of the law.177 Anonymous political speech is entitled to at least as much clarity, but the Supreme Court continues its struggle to craft such a formulation. Although issue advocacy was once distinctly distinguished from express advocacy and protected from disclosure, some legislatures, executive bodies, and courts have diligently dismantled that distinction.178 This includes developing several versions of the express advocacy standard to capture more political speech.179

Because of this confusion about boundaries when considering disclosure, some courts have gone so far as to make anonymous political speech a dead letter.180 The Buckley Court’s express advocacy formulation worked to preserve two goals.181 First, it permitted government regulation of political speech to occur where correct government interests were implicated.182 Second, it properly cabined the reach of that regulation by demanding upon stringent standards of clarity.183 Those advocating reform criticized the Buckley approach due to it being easily evaded.184 Using words just beyond the pale of express advocacy could shield speech from regulation. But it also meant that speakers could easily understand which speech was regulated and prevented substantial overreach.

As identified earlier, today’s body of election law implicates regulation for express advocacy, the “functional equivalent” of express advocacy, and electioneering communications. Moreover, the rigor of division between these categories of speech has weakened and no shortage of confusion has erupted as speakers fail to know in advance which category their prospective advertisements fall into. This was the very cause of concern identified in Buckley: adopt too fluid of standards and free speech will suffer.185 Moving the law to cement easily identifiable speech standards that average individuals can understand and which limit tendencies for government abuse is the only known solution to this problem.

In the development of election law following McConnell v. Federal Election Commission, it is becoming apparent that the Court is streamlining regulable speech standards in exactly this way. This has not happened without a struggle in the Court. While McConnell upheld most new regulations contained in the Bipartisan Campaign Reform Act (“BCRA”),186 its successor case, Federal Election Commission v. Wisconsin Right to Life, narrowed the reach of the law. The WRTL Court would not accept a facial challenge to BCRA’s ban of electioneering communications by corporations and unions, but it allowed an as-applied challenge to limit the reach of the law.187 In doing so, it attempted to clarify the “functional equivalent of express advocacy” standard by explaining that “an ad is the functional equivalent of express advocacy only if the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.”188 This included examining factors like whether the communications “focus on a legislative issue, take a position on the issue, exhort the public to adopt that position, and urge the public to contact public officials with respect to the matter.”189 In stating the test, Chief Justice Roberts went to great lengths to reinforce that the test was objective and did not suffer from many problems of vagueness found in past election law standards.190

The FEC responded to its loss in WRTL by fashioning what the Supreme Court called a “two-part, 11–factor balancing test to implement WRTL’s ruling.”191 In seeing just how flexible, open-ended, and far-reaching of standards the FEC would design, the Court allowed a facial challenge to the speech ban contained in the BCRA and eliminated it entirely.192 In doing so, the Court explained that the sheer size and complexity of the FEC’s standards acted as a prior restraint against speech.193 As a result, only speech regulations sounding in objectivity and clarity could survive.

As prior litigation demonstrates, inarticulate and intricate speech standards create a chilling effect against speakers and cause real injury to First Amendment rights. Whatever zeal there may be for aggressive enforcement of campaign finance provisions, the Constitution compels a simple adherence to baseline standards. Because disclosure is a type of campaign finance regulation and because regulatory standards matter very much, it is equally important to ensure that bright line standards (like the Buckley formulation) apply.194

The second suggestion flows from the first: anonymous political speech should not be reserved only for those who can make it to court. Broad, uniform standards eliminate political maneuvering and manipulation of existing disclosure standards. Under current law, only the most extreme, far-flung voices are protected against disclosure provisions.195 This creates a haphazard, accordionlike approach to preserving political privacy. Supporters of controversial issues of the day may enjoy complete anonymity while moderate speakers are tasked with full disclosure. This sort of asymmetrical disclosure regime ensures that radical and fringe views are better protected than neighborhood, middle-of-the-road voices. All speakers, regardless of message, deserve prospective protection against government retaliation. Only uniform and equal standards achieve this just result.

Moving toward uniform standards for disclosure would entail a major shift in existing norms weighing the value of speakers’ political privacy greater than the government’s interest in disclosure. More concretely, litigants would have to make compelling arguments why the three liberty interests identified in this article—preventing prejudice, keeping the message central, and preventing retaliation—are superior to government interests in disclosure, usually identified as keeping the electorate as informed about who is spending money for political messaging. To date, litigation has focused primarily on the retaliation interest and small classes of speakers rightfully become exempt when certain conditions are met. At times, groups like the American Civil Liberties Union and the Chamber of Commerce have argued, in part, about the prejudice issue but not with sizeable effort.196 Litigation efforts would have to focus on the negative effects of disclosure that have largely been overlooked in campaign finance case law. This would include illustrating why an organization’s desire for the public to focus solely on its message is more important than the public’s interest in knowing who is behind it. Or it would involve showings by disfavored, but not radical, groups why exposing their names or identities would be so damning. Examples might include Tea Party organizations messaging in Berkley, California or fiery rhetorical campaigns by Earth First! in Cheyenne, Wyoming. Through this slow percolation of cases, the value and strength of these liberty interests might be identified and strengthened, expanding the scope of protection for anonymity.

The third suggestion calls for simple, straightforward disclosure. Existing simple disclosure regimes, triggered each time an organization or individual speak out using a certain amount of money, adequately promote government disclosure interests without imposing complicated, continuing reporting regimes.197 For too long, popular media and campaign finance reform groups have conflated imposing disclosure requirements with PAC requirements.198 One or two-page disclosure forms provide information called for by the Supreme Court: (a) who is spending money, (b) given toward what particular candidate race, and (c) in what amount.199 More detailed PAC requirements impose a heavy and bizarre set of regulations on average speakers, making the exercise of First Amendment freedoms “onerous.”200 Insisting that simplified disclosure is the norm would help achieve reformers’ interests in disclosure while alleviating much of the burdens current disclosure regimes impose.

Finally, the fourth suggestion acts as a buffer against burdensome laws for average speakers. Here, requiring higher aggregate disclosure thresholds ensures grassroots groups are not burdened by intricate, lengthy forms more appropriately required for sophisticated, large political organizations. The core holding of Mass. Citizens for Life supports this idea, positing that extensive reporting and organizational requirements should only apply to groups whose major purpose is serious campaign activity.201 Increasing aggregate thresholds for difficult compliance regimes (like PAC status) ensures ordinary citizens are not shut out of the political system due to legal intricacies while only leaving sophisticated, better funded political professionals to handle such intricacies. This last set of suggestions is hardly new: reformers and First Amendment advocates have regularly called for increasing threshold campaign finance disclosure limits.202

Taken as a whole, these suggestions would work in very much the same way other areas of reform have been modified due to constitutional concerns. For example, it used to be commonly accepted that state laws punishing defamatory or libelous statements could be broadly designed and applied. Through concentrated effort, litigants were able to convince the Supreme Court, first in New York Times Co. v. Sullivan, that the First Amendment demanded more safeguards apply to the liberty interests protected in speech.203 While weighty interests supported the availability of libel and defamation remedies for aggrieved parties, the Supreme Court ultimately held that the liberty interests supporting the First Amendment carried greater weight. Or, as the Court stated, our “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials” carries special consideration.204

Part of the sea change in tort law as it relates to the First Amendment was due to litigants sharply illustrating how cumbersome laws (born out of legitimate concern) damaged their liberty interests. In New York Times Co., the government attempted to paint its system of libel law as being protective of speech because it allowed truth as an ultimate defense. The problem was easy to identify: “Under such a rule, would-be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true and even though it is in fact true, because of doubt whether it can be proved in court or fear of the expense of having to do so. They tend to make only statements which ‘steer far wider of the unlawful zone.’”205 Because the litigants could plainly demonstrate just how difficult the law was to comply with and how suppressive it would likely be, the Supreme Court embraced a doctrinal shift toward protecting these types of speech.

Just as so many regulatory programs have shrunken with the application of the First Amendment, so too does the reach of campaign finance reform and disclosure. The recommendations provided in this article would achieve similar results: (1) average speakers would be protected from cumbersome regulatory regimes, (2) more meaningful scrutiny and objective regulatory guideposts would provide quicker remedies to speakers whose rights had been abused, and (3) a greater prospective protection for political privacy would result. All of this would work toward harmony in the law. Streamlined disclosure would remain but overreaching and complicated regulatory regimes would be substantially trimmed.