This article was first published at the American Thinker website.
Many commentators and politicians have attacked the Supreme Court’s 2010 case of Citizens United v. Federal Election Commission for holding that citizens do not surrender their First Amendment rights when they organize under state corporation law. The Vermont state legislature has even adopted an application for a federal convention to propose a constitutional amendment to “overturn the Citizens United decision.”
Almost no one seems to know that the Citizens United case contained another ruling in addition to the one on corporate issue campaigns. The other ruling should be just as controversial, for it upheld a broad congressional attack on the privacy of those exercising First Amendment rights. Yet the critics have been almost entirely silent about that part of the case.
In the second ruling, the Court sustained, over Justice Thomas’ sole dissent, a federal mandate that political issue committees publicly reveal the names of major donors. The Court did so although disclosure can lead to retaliation and personal harassment of individuals exercising First Amendment rights. In other cases, the Court has voided disclosure requirements that can result in free expression being unconstitutionally “chilled.” But the Court refused to do so in Citizens United.
The NYU Journal of Law and Liberty has just published an article in which I examine the question of whether forced disclosure of contributors to issue campaigns is consistent with the First Amendment, as the Founders understood it.
Here are my principal findings:
* Under the First Amendment, political advertising is best analyzed as a branch of “the freedom . . . of the press” rather than “freedom of speech.”
* During the Founding Era, the terms “liberty of the press” and “freedom of the press” were exact synonyms, with the former somewhat more common.
* Despite some peripheral uncertainties, the founding generation well understood the core meaning of “freedom of the press.” In other words, it was not a vague or indefinable term.
* During the Founding Era, the near-universal custom of those writing on political subjects of all kinds was to write either anonymously or under assumed names. Printers were expected to respect their contributors’ privacy by not revealing their true identity without explicit permission.
* There were important and completely legitimate reasons for author privacy, all of which continue to be valid today. In fact because of intervening changes in defamation law, those reasons may be stronger now than they were during the founding era.
* The historical record contains explicit statements that assert, or inescapably assume, that “freedom of the press” includes the right to conceal one’s identity. I found only one claim that forced disclosure was consistent with freedom of the press, but it referred to voluntary disclosure by a private printer, not government-forced disclosure.
* Under founding-era law, the right to privacy of identity ended in specific cases of “abuse.” When an author appeared to be guilty of one or more specific offenses, a prosecutor or other plaintiff could require the printer to disclose the name. These offenses included, but were not limited to, defamation, sedition, and treason. In the absence of such an offense, the author’s name was private and none of the government’s business.
A 1782 incident demonstrates the prevailing consensus:
An author had placed an article in a Philadelphia newspaper criticizing state government. Hearing that the editor had revealed the name of the critic to the governor (then William Moore), another writer accused the editor of “treachery.”
The editor felt compelled to respond. He explained that, although the governor had asked for the critic’s identity, the governor had asked for it only, “if you are at liberty to mention his name.”
In response to the governor’s request, the editor then asked the author whether the editor had permission to reveal his identity. The author responded, “You are at liberty to give my name to his excellency.” Only then did the editor disclose it.
This story shows how zealously author privacy was guarded during the Founding Era. Everyone assumed that freedom of the press incorporated a presumption of non-disclosure, even if the author had not asked to be kept anonymous. Editors and printers, as well as government officials, were subject to this norm.
Reading the historical record left me with the conviction that the Founders would have found mandatory disclosure of contributors to political advertising an outrageous violation of privacy — and certainly inconsistent with freedom of the press.