Free Speech

America, the bill for "Free Speech" comes due.

Recently, there has been a great deal of discussion about “freedom of association,” “free speech” and the 1st and 14th Amendments. Most of us are familiar with the U.S. Supreme Court’s Citizens United opinion and its counterpart, the McCutcheon decision, as well as recent IRS investigations into “Tea Party”-flavored tax-exempt political groups that have raised eyebrows on the right.

Observers closer to home debate the merits of Governor Perry’s 2011 decision to veto S.B. 346 (the so-called “dark money” bill), or perhaps the Texas Ethics Commission’s investigation into the political activities of Empower Texans.

Clearly, and somewhat ironically, there is being a lot of money being spent on these “free” rights, either to defend them or to curb them. A showdown between “transparency” vs. “anonymity,” as it were. It’s a healthy debate, in terms of magnitude as well as virtue.

The supporters of the “unfettered free-speech” position often support some degree of anonymity in the political process, and suggest that too much transparency can be a bad thing, even unconstitutional. Requiring politically active nonprofits to disclosure their membership, they advise, would deprive donors of their constitutional right to freely associate and engage in political speech without fear of intimidation – a right, they say, that was “explicitly upheld” by a Supreme Court case from 1958, NAACP v. Patterson.

I think they are misreading the case, or at least drawing conclusions that are not supported by the plain wording of the opinion. For this reason, it is helpful to examine the facts of the case and the Court’s conclusions.

Dateline: 1950s Alabama, where freedom rings.

In 1951, the NAACP opened an affiliate office in Alabama, ostensibly without complying with laws requiring a "foreign corporation" to qualify for doing business in the state by filing it's corporate charter and designating a place of business and an agent to receive service of process.

Citing this lack of compliance, in 1956, the Alabama Attorney General sued to stop the NACCP from conducting further activities within the state. Among the allegations: that the NAACP had “furnished legal assistance to Negro students seeking admission to the State University, and supported a Negro boycott of the bus lines in Montgomery.” (Heavens to Betsy!) The suit further alleged that the NAACP was "causing irreparable injury to the civil rights of the citizens of the state of Alabama." (Turns out they were right.)

The State directed the NAACP to produce a large number of records, such as banks statements and leases, as well as turning over the names and addresses of all Alabama members. The State said it needed all such documents to prosecute for non-compliance with the “foreign corporation” law.

The NAACP produced substantially all the data called for, including the names and addresses of the officers of the organization, but would not release its general membership list, out of fear that the members would face severe reprisal (turns out they were right about that, too). The case was ultimately appealed to the U.S. Supreme Court in 1958.

SCOTUS addressed three points: the first two were technical claims related to jurisdiction and standing, both of which were dismissed. The third and central claim was that by requiring the general membership list, the State trespassed upon the fundamental freedoms of the NAACP membership as protected by the due process clause of the 14th amendment.

This argument was upheld, and it is this particular point on which the free-speech advocates today hang their hat. However, they appear to misinterpret two key elements of the decision, and are therefore missing the forest for the trees.

Welcome to the jungle

First, it’s true that in its decision, the Court upheld the importance of privacy in association. In fact, they said that it was “beyond debate” that freedom to associate is an “inseparable aspect of the liberty assured by the due process clause of the 14th amendment.” Point taken.

However, the Court specifically noted that even when legislation would discourage the exercise of constitutionally protected rights, such statutes could be upheld if the reasons for their enactment were “constitutionally sufficient to justify the possible deterrent effect.” After all, you can’t yell “fire” in a crowded movie house, because the public’s safety is the paramount consideration.

In NAACP, the exclusive purpose of the State’s case was to determine whether the NAACP was violating the Alabama foreign corporations statute. This was an insufficient justification, said the Court, particularly when the result of such disclosure would inevitably lead to “economic reprisals, loss of employment, threats of physical violence, and other manifestations of public hostility” against the membership. The Court did not conclude the NAACP could NEVER be required to turn over its membership – merely that they weren’t obligated to in this case.

Secondly, and perhaps more notably, the NAACP argued that the disclosure of the membership list would abridge the rights of the rank-and-file members, rather than on the leadership of the organization or the membership as a whole. The NAACP did not assert absolute immunity from complying the state’s information requests. Rather, both the NAACP and the Court made a distinction between the rights of the ordinary rank-and-file membership versus those of the employees or officers of the organization. Tellingly, the NAACP did not object to divulging those names, and in fact turned this information over when requested. One could argue, and apparently the Court believed, that those in "leadership" may be considered differently than the ordinary rank-and-file, at least with respect to their right to privacy.

Getting to my point (no charge...)

I am all for free speech too. It is central to our definition of liberty, as is the freedom to associate. However, these rights are not entirely unfettered. Of course, you cannot slander or malign somebody without regard to the truth. It is illegal to threaten to kill someone or call in a bomb threat. These are very reasonable restrictions, and few would argue otherwise.

Some suggest that politicians should not decide what we can and cannot do to advocate for against particular candidates or policies. This is hogwash, of course. It’s perfectly legitimate. As a registered lobbyist, I am required to disclose who my clients are and how much I am being compensated to represent them. And certainly, we are all familiar with the "I'm candidate X, and I approve this message" disclaimer that is ubiquitous to modern political advertisements.

Plainly, in policymaking as well as politics, there has been a historical justification for public disclosure of who is endorsing what or advocating for whom. In these instances, the government merely made the case that the restrictions further a compelling state interest. That is the true test, as identified by the Supreme Court and upheld in NAACP.

Secondly, NAACP was all about retaliation against the membership. Does anybody think that Sheldon Adelson or the Koch brothers or George Soros or any other such well-funded underground political advocates are particularly concerned about retaliation? Of course not. These are among the most powerful political figures in our country. They are not afraid of the Big Bad Wolf.

Third, consider the Court’s conclusion that there must be a compelling justification for the state to abridge someone's freedom of speech, or freedom of association. In NAACP, the Court concluded that conducting interstate business in violation of the Alabama foreign corporation registration statute was an insufficient rationale for the harm that would have inevitably resulted.

But what about carpet bombing an under-informed electorate with mass mailings and TV spots that are misleading at best or downright false, to such a degree that a favored candidate for office is defeated? This happens with alarming frequency. Might this outcome meet the Court’s definition of “compelling justification”? Perhaps, perhaps not, but it is a worthwhile point for debate.

A fourth point is the Court's determination that rank and file members may be afforded greater protections than officers or officials of an organization. One could surely argue that donors who give hundreds of thousands if not millions of dollars towards political efforts are much more akin to “leadership” than Grandma Q. Citizen who sends in $25 membership dues once a year. I can certainly make a case that one is deserving of privacy in ways that the other is not. Apparently, the Court agreed with me.

Disclaimer (also free.)

I’m not a constitutional scholar, or even a lawyer. I don’t review SCOTUS decisions with any frequency, so I may have missed other illustrative opinions on this subject. This debate, taking place in Texas and all over the country, will not be resolved in this short (or absurdly long) email. I am not even necessarily arguing it should be decided one way or the other – frankly, I could argue the issue round or flat.

I am simply suggesting that when the unencumbered-free-speech advocates point to the NAACP case to exemplify their argument, they should at least lay out all the facts of the matter. After all, the very freedom of your speech is at stake.

- Eric Woomer

Return to Thought Pieces