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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.