Tuesday, May 10, 2011

Free Speech and Anonymity - Double Edged Swords

Democrats and liberals and, very possibly, thoughtful Republicans are celebrating a court decision today KOCH INDUSTRIES, INC. vs. JOHN DOES, 1-25

The defendants had issued a hoax press release "purporting to announce a decision by Koch
Industries to stop funding organizations that deny climate change. The press release was emailed to various new organizations and included a link to a website created by Defendants.... Defendants’ website had the same look as the actual Koch Industries site but included the fake press release

Koch Industries sued on several grounds, which the court, the United States District Court for the District of Utah, Central Division, rejected for a number of reasons, basically telling Koch Industries "it was a joke, guys, grow up." (My spin.)

One significant part of the decision, however, is based on a "First Amendment right to anonymity." Several cases have upheld the right to anonymous political speech. See, e.g., http://en.wikipedia.org/wiki/First_Amendment_to_the_United_States_Constitution
Especially see: McIntyre v. Ohio Elections Comm'n (93-986), 514 U.S. 334, http://www.law.cornell.edu/supct/html/93-986.ZS.html

At the same time as this case being cheered on, President Obama is reportedly drafting an Executive Order which will require federal contractors to disclose their political contributions.

I am not an expert in this area, but the apparent conflict seems to me to be more apparent than real: The executive order isn't stripping away anonymity regardless. Any company can still make anonymous political contributions.

It seems to me that the proposed Executive order would simply say "if you want to do business with us, which is entirely up to you, only then will you lose you anonymity."

I've no doubt this potential conflict will receive scrutiny if and when the executive order is issued.

And if it does, I predict the final analysis will hinge on a weighing of the first amendment right to anonymous political speech as against the right to fair elections.

Sadly, today's Supreme Court majority doesn't seem all that interested in "fair elections" other than "fairness for conservatives and big business."

Time will tell.

No comments:

Post a Comment