Posted On: January 29, 2009

Campaign Finance Laws 1, Anonymity 0

A couple weeks ago I blogged about the lawsuit by supporters of Proposition 8, the California measure to ban gay marriage, seeking to withhold disclosure of the names of late campaign donors.

I mentioned that there's a right to anonymous speech in some contexts, but that given the public interest in knowing who contributes to initiative campaigns, I wouldn't bet on the Proposition 8 supporters' lawsuit succeeding.

Neither did the judge. U. S. District Judge Morrison C. England Jr. ruled against the Proposition 8 supporters, writing, "The court finds that the state is not facilitating retaliation by compelling disclosure."

I'm all for free speech, and sometimes anonymity is important to avoid reprisals. But in the case of campaign donors to an initiative measure, I think the interest in knowing who's behind campaign spending is vitally important, especially to avoid stealth deception campaigns. The judge got it right here.

Posted On: January 28, 2009

It's Time for a Federal Reporter's Privilege

President Obama and Congress, after you're done fixing the economy and dealing with the Middle East and global warming -- or maybe if you get a spare moment before then -- it's time to pass a reporter's privilege law.

Nearly all states have one, and there was a bill to pass a federal reporter's privilege (or "shield law") in the last Congress. The bill died, though, and even if it had passed President Bush would have vetoed it.

Now, with President Obama in office, there is real reason to hope for action on a federal shield law. Too many subpoenas have been issued recently trying to make reporters disclose confidential sources. Such subpoenas -- which resulted in the high-profile jailing of New York Times reporter Judith Miller --discourage investigative reporting and can keep whistleblowers from coming forward.

The reporter's privilege is vital protection for a free press and has helped the cause of free speech considerably at the state level. It should be enacted, at long last, at the federal level.

Posted On: January 28, 2009

Another Lawsuit Yelps About a Yelper

I recently blogged about a lawsuit involving a Yelp review. Now it seems like this is becoming a trend.

The latest lawsuit was brought by a pediatric dentist in Foster City, California, who took umbrage at negative online comments on the Yelp website which said the dentist gave a boy laughing gas and used fillings containing mercury.

Yelp, and other websites, are generally immune from lawsuits claiming defamatory third-party postings, because of the Communications Decency Act, 47 U.S.C. section 230. That doesn't seem to be discouraging these lawsuits against the people posting the reviews, although the California anti-SLAPP statute (Code of Civil Procedure section 425.16) and similar statutes in other states may enable people to quickly get rid of the lawsuits.

The case I mentioned in a previous blog, involving a San Francisco chiropractor, has since been settled and a semi-apology about the chiropractor is now posted on Yelp's web site.

Posted On: January 22, 2009

OBAMA: RECORDS PRESUMED OPEN

OBAMA: RECORDS PRESUMED OPEN

President Obama didn't waste any time in breaking with the secrecy-first policies of his predecessor.

On his first full day in office, Obama issued a memorandum reversing the policy of the Bush Administration toward Freedom of Information Act requests. The so-called "Ashcroft Memorandum" issued early in the Bush Administration directed federal agencies to deny FOIA requests if there was any defensible argument against disclosing records. Obama's new policy shifts the presumption in favor of disclosing records. The new President made clear that records might still be withheld for reasons of, say, national security, but the new Memorandum is still an important policy shift.

The Bush Administration's penchant for secrecy was revealed early on -- even before the 9/11 attacks gave it a reason for full-throated defense of secrecy -- when former Vice President Cheney refused to reveal the names of oil company executives and others with whom he met to formulate energy policy. Cheney fought a lawsuit designed to pry those records loose all the way to the Supreme Court. Obama's new policy is a welcome change and indicates the new President won't routinely use government money to hide information from citizens.

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Posted On: January 9, 2009

Anonymity Collides With Full Campaign Disclosure

Two interests which both find some support in the First Amendment -- the right to be anonymous and the public's right to know -- collide with each other in a new federal court lawsuit.

The lawsuit was filed by supporters of Proposition 8, the California measure passed by voters in November which effectively outlaws gay marriage (and which is now being challenged in the California Supreme Court). The organizations behind Proposition 8 are challenging campaign finance laws which require disclosure of contributors and the amount of their contributions. They contend that their coerced identification ("outing") infringes their First Amendment rights.

It is a difficult issue. On one hand, the U. S. Supreme Court has upheld the right to anonymous speech and in one case held that the NAACP did not have to disclose its membership list. But on the other hand, the entire system of campaign finance reform depends on the public's ability to know who contributes to candidates and initiative measures. In an era when large corporations can spend massive amounts to defeat grassroots initiative measures, "anonymity" could result in defeating the public's right to know who's behind deceptive advertising campaigns.

Putting aside gay marriage, which isn't the primary issue in this latest case, both sides have good arguments. But I wouldn't bet on the plaintiffs being able to toss campaign finance laws out the window in this one.

Posted On: January 8, 2009

How to Defame Yourself and Influence People

I've often said that one of the best ways to bring attention to something is to try and censor it.

A San Francisco defamation suit reported today is a good example of this. A local chiropractor, it seems, was unhappy about a negative review of him posted on the website Yelp. He sued the poster, who had complained about the chiropractor's bill.

I don't know how many people read the negative review in the first place, but after the daily newspaper did a front-page article about the lawsuit -- fairly and accurately reporting that the chiropractor had filed the lawsuit, and quoting lawyers on both sides -- a lot more people know about the review. In other words, it might have been better for the chiropractor if he had just ignored the Yelp review. In fact, someone quoted in the article today says people reacted more negatively to the chiropractor filing a lawsuit than they would have to what the Yelp review said in the first place.

The morals of the story are (1) the best remedy for speech is counter-speech, and (2) in the words of the old comic strip, if someone says something about you you don't like, Grin and Bear It.