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Count to Five for Political Privacy

More fretting has begun about just what Merrick Garland would mean for the United States if confirmed as a Supreme Court Justice. But in focusing too strongly on one unlikely nominee, Garland, we may forget what a new Justice may mean for political free speech and association.

It should first be recounted that, while an admirable Justice, Scalia proved himself hesitant about the rigorous application of the First Amendment in political settings. Most importantly, Justice Scalia joined Chief Justice Rehnquist in dissent in McIntyre v. Ohio Elections Commission. That case asked whether one elderly woman enjoyed the right to privately distribute leaflets opposing a school tax levy without identifying herself. Notably, liberal lions of the Court—Justices Breyer and Ginsburg—agreed she could enjoy political privacy. Justices Stevens, Kennedy, O’Connor, and Souter agreed. But only Chief Justice Rehnquist and Justice Scalia would have eliminated political privacy.

For Justice Scalia, imposing identification requirements for political speech meant more civil, truthful campaigns. Indeed, both Chief Justice Rehnquist and Justice Scalia looked to foreign democracies—Australia, Canada, and England—as proof of their efficacy. In contrast, Justice Thomas examined the historical evidence and concluded that “it seems that the Framers understood the First Amendment to protect an author's right to express his thoughts on political candidates or issues in an anonymous fashion.”

It was also Justice Scalia who later reasoned that requiring “people to stand up in public for their political acts fosters civic courage, without which democracy is doomed.” For Justice Scalia, only the most damaging threats or injuries could permit an individual to enjoy political privacy. In today’s post-Citizens United cases, Scalia’s thinking reflects mainstream judicial sentiment. Gun clubs and environmentalists alike must register and report their political efforts with the state unless mob violence falls upon them.   We’ve long since lost the notion that admirable social and political changes have occurred in America only when the cloak of anonymity has been allowed.

While I have much admiration for the lifelong work of Justice Scalia, I do believe his analysis of political privacy under the First Amendment was flawed. Under many campaign finance systems today, even the smallest political engagement by concerned neighbors or a Boy Scout troop about local issues could signal the need for an army of lawyers and accountants. Politics have become professionalized, voices removed from the public square—all this done in the name of “disclosure.”

Decades have passed and times have changed. Justices Stevens, O’Connor, and Souter as well as Chief Justice Rehnquist are no longer on the Court. The variable inputs of Chief Justice Roberts and Justices Kagan, Sotomayor, and Alito must be considered. But Justices previously supporting political privacy include Breyer, Ginsburg, Kennedy, and Thomas. That’s four. Justices Kagan and Sotomayor seem unlikely bets to vote in favor of political privacy. Chief Justice Roberts may also be slow to warm up. Justice Alito leans favorably in this direction, but without much certainty. Another unknown. Then we’re left with the eventual replacement for Justice Scalia who could signal the rebirth of protection for political privacy under the First Amendment. That’s five.

Restoring political privacy—letting people speak without consulting lawyers and accountants—is important. With the eventual nomination and confirmation of the next Supreme Court Justice, we may just be on the way to that goal.

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Tuesday, 26 September 2017
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