Does The Constitution Protect Anonymous Political Speech?

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Does The Constitution Protect Anonymous Political Speech?By Jeff JohnsonCNSNews.com Congressional Bureau ChiefMarch 29, 2002Capitol Hill (CNSNews.com) - Dario Herrera is a Democratic candidate for Congress from Nevada's newly created 3rd Congressional District. While Herrera will face opposition from Republican state Senator Jon Porter and Independent Party candidate Pete O'Neil, his most dangerous opponent may be a Nevada business owner turned political writer.That writer's website, darioslittleproblem.com contains a collection of "reports" about Herrera's alleged involvement in unethical business dealings and purported abuses of his position as chairman of the County Commission in Clark County, Nevada to gain financial and political benefit. The site links to stories in the Las Vegas Sun and the Las Vegas Review-Journal concerning two ethics complaints filed against Herrera, an FBI probe of a public relations contract he entered into with the Las Vegas Housing Authority, and an investigation into Herrera's alleged operation of a business from his home without a license.The first page of the site lists "A few things you should know before entering:"1. We will never knowingly publish untruths, nor will we ever show a reckless disregard for the truth. 2. Our reporting may be wacky, but our news ain't weak, and neither are our knees."The site, which is reportedly receiving 6,000 to 7,000 page views per day, also contains a number of allegations regarding Herrera's personal relationships. A satirical analysis of a specific part of the Nevada Democrat's anatomy greets viewers on the index page, and is the source of the website's name.The author of the material admits the website's initial content is controversial."It would not be my choice from where I stand in my own personal life to put that out front," he explained. "However, what I know is that there's an abundance of news out there that hashes and rehashes these same political stories."He acknowledges that he used a "premeditated shock theme" to draw readers to the site, so they would dig and read further.Akim Bergmann is the manager of the Herrera for Congress Campaign."We're just not going to dignify that vicious garbage with any sort of a comment whatsoever," Bergmann said.Bergmann did not confirm or deny any of the allegations.The Nevada business owner who designed and authored most of the site's content is identified to readers only as "Trixie." He agreed to speak with CNSNews.com only on condition of anonymity. (The personal pronoun "he" is used to refer to the author, although that use is not intended as an indication of his or her sex.)"Trixie" believes he has an absolute right to publish his website without disclosing his identity, as evidenced by one of the most famous collections of political essays in American history."The Federalist Papers were written anonymously. I think that's relevant to the argument, and I think it speaks to the spirit and the intent of where our whole country came from," he argued. But the "Bipartisan Campaign Reform Act" (BCRA), signed into law by President Bush Wednesday, expands a different view; one upheld by the Supreme Court in the landmark campaign finance case Buckley v. Valeo [424 U.S. 1 (1976)].Attorney Trevor Potter, former chairman of the Federal Election Commission and legislative advisor to Sen. John McCain (R-Ariz.) - a lead co-sponsor of the BCRA, explains."What the court has said in 'Buckley' is that people who engage in political speech do have to disclose their identities. If you contribute," Potter said, "you disclose who you are. If you make an independent expenditure, you are required to report that and it is a matter of public record."Potter says, contrary to critics' charges, BCRA only expands current disclosure requirements to include campaign advertising that was escaping disclosure through a loophole."All this does is move the line of what spending is disclosed. It doesn't change the constitutional doctrine that says that you can require disclosure of political speech," he claimed.Opponents of the law have already filed two federal lawsuits, with more threatened, to stop enforcement of BCRA's provisions. Among other issues, the lawsuits ask the court to revisit the question of whether Americans have the right to anonymous political speech.BCRA requires issue advocacy groups to disclose the names of contributors to any funds that are used to pay for broadcast advertising that includes the name of a federal candidate 60 days prior to a general election and 30 days prior to a special or primary election.The National Rifle Association (NRA) calls the law an "unconstitutional infringement on the First Amendment rights of the NRA and our four million members" in the United States."The statute infringes on the associational rights of the NRA's members by requiring invasive public disclosure of certain contributors," the complaint states. "The law thus silences nonprofit corporations on issues of fundamental importance to their members."But an analysis of BCRA written by attorney Don Simon for Common Causesays such disclosure should be required, because groups such as the NRA are really advocating the election or defeat of a candidate, not merely discussing issues as they claim."Most campaign ads by non-candidates and outside groups (as well as by candidates and parties) simply do not use 'magic words' like 'vote for' or 'vote against.' Instead, such ads praise or criticize candidates by name in a way that makes their intent to advocate unmistakable," Simon wrote."Particularly where such ads are run right before an election, it is overwhelmingly clear that they are intended by their sponsors to be campaign ads, and they have the same effect on the voters as campaign ads. As a matter of common sense and political reality, such ads should be treated by law the same as any other campaign ads," he concluded.While disclosure of contributions to candidates and political parties are the "least troubling" parts of campaign finance laws, the Libertarian Party says other groups and individuals should have the right to engage in anonymous political speech."The First Amendment in the Bill of Rights says 'Congress shall make no law ... abridging freedom of speech,'" notes Bill Winter, communications director for the Libertarian Party."No law means, no law. It doesn't mean only speech when you say who's saying it," he continued.Winter believes voters are "smart enough" to weigh the credibility of political speech based on its source, and to be sufficiently skeptical when the source is anonymous.There is also a third reason, Winter adds, that Americans should be allowed to speak their minds on issues without having to register with the government."Politicians have become so powerful in this country, and have control over such a wide, vast scope of business and peoples' personal lives, that there actually could be a danger from letting some politicians know who's opposing them," he said."For that reason, alone, people should have the right to take on entrenched political interests, and do so anonymously," Winter concluded."Trixie" agrees, and fears that, if the BCRA disclosure provisions are upheld by the courts, more people will "shy away from speaking out and exposing truth and doing the right thing for fear of retribution, be it physical or otherwise."The question is not 'Why should we do this anonymously?' but 'Why should we have to do this anonymously?'" "Trixie" explained.His site has received numerous anonymous threats since it went online two months ago, including threats of physical harm to "Trixie" and his family. It was also shut down for three days after an unidentified person or group complained to "Trixie's" first Internet service provider."Trixie" says he will be watching the outcome of the lawsuits against BCRA with interest.The U.S. District Court for the District of Columbia will hear those suits first, and may consolidate them into one case. If the court rules rather than passing the case up the judicial ladder, is certain to be appealed directly to the U.S. Supreme Court. No timetable has been set for the preliminary hearings. http://www.cnsnews.com/ViewPolitics.asp?Page=\Politics\archive\200203\POL20020329a.html