General Roundup on compelled speech w/ various media

1. Miami Herald v. Tornillo- statute forcing newspaper to print replies to critics of political candidates violated 1st Amendment • Red Lion Broadcasting (p. 428) – statute forcing broadcasters to carry right of reply (“personal attack”) does NOT violate 1st Amendment • Theory is that broadcast licenses are a privilege that stations must use for public good in face of physical scarcity • Turner Broadcasting(pp. 107 & 439) - federal “must carry” rules do not compel cable operators to speak in violation of 1st Amendment • Cable model doesn’t have physical scarcity issues of broadcast BUT these rules were content neutral and cable companies are like a conduit. • To what extent does the advent of Internet cast doubt on need for ANY particular medium to provide access? General Roundup on compelled speech w/ various media

2. Individual distributed unsigned leaflets advocating against a proposed school tax levy • Distribution violated Ohio Code which required any publication promoting a ballot issue be signed by the publisher (with address) • State interests underlying law: • Informing the electorate • Preventing fraudulent and libelous statements • SCT struck down the law: • Anonymity alone is not a reason to regulate speech (Talley) • Law affects the content of core political speech – Forced revelation of identity = forced content & the law also regulates only ballot initiatives • use strict scrutiny to judge constitutionality • Application of strict scrutiny: • Interest in informed electorate is not enough to justify compelled revelation of identity (See Tornillo) • Interest in fraud/libel can be met with more direct regulations Mcintyre v. oec– The Right to Engage in anonymous speech

3. Why do we protect anonymous dissemination of expression? What is the “dark side” of anonymous speech? The value of anonymous Speech – the Discussion in Mcintyre (& more generally)

4. Fed. Election Campaign Act • Requires disclosure to FEC of individual contributions and expenditures made to or on behalf of candidates in federal elections • 3 interests underlying FECA – (1) inform electorate re how campaigns are financed, (2) preventing corruption or appearance of corruption, & (3) detecting violations of contribution limitations • Buckley v. Valeo– upheld FECA disclosure requirements using “exacting” scrutiny because the disclosure requirements are the “least restrictive means” to achieve the statute’s interests • Buckley recognized a “minor party exception” to the disclosure requirement – why do you think minor parties don’t pose problems identified above? • Buckley Test (p. 298) – Does evidence show a “reasonable probability that the compelled disclosure of party’s contributors’ names or will subject them to threats, harassment, or reprisals from either Government officials or private parties.” Other Disclosure requirements In the Election Context

5. Ohio law required all political parties to report names/addresses of contributors or recipients of campaign disbursements. SWP challenged law. • Brown extends Buckley “minor party exception” to disclosures about recipients of disbursements. • Why is anonymity important here? • What evidence did SWP have to satisfy the Buckley/Brown test? Brown v. Socialist Workers Party

6. FECA required disclosures re campaign contributions/expenditures and certain kinds of election ads • Those persons expressly advocating the election/defeat of a candidate must disclose names to FEC • Only applied to ads expressly advocating election/defeat – not to “issue ads” containing no direct advocacy about candidates • Rationale – want to encourage people to speak out (even anonymously) about political issues but integrity of electoral process needs identification of persons advocating election/defeat • BCRA (2002) extended disclosure/identification requirement to “electioneering communications” defined as: • Broadcast, cable, satellite communications that “refer” to a candidate within 30/60 days of an election • Identities of anyone making contributions of > $1,000 to aid in the disbursements of electioneering communications must be disclosed to the FEC Regulation of Anonymous Speech – More on Campaign- Related Speech & Federal Restrictions

7. McConnell SCT upheld disclosure requirements in BCRA • Opinion highlighted problems associated with anonymous election-related speech • “sham” issue ads that are really about candidates • misleading ads that seemingly have broad public support but are really interest-group driven • Compelling disclosure does not prohibit anyone from speaking • State interests (informing electorate, deterring corruption/appearance of corruption and enforcing other campaign laws) were sufficient to justify the requirement of disclosure. • Wisconsin Right to Life – SCT said electioneering provision was unconstitutional as applied to non-profit policy group who made ad • It is not clear whether WRL narrows McConnell or turns more on the nature of the group involved (non-profit policy group). SCT reaffirmed legality of disclosure requirements generally in Citizens United • How do we reconcile all of these these cases? McConnell v. FEC

8. SCT seems to be trying to find a balance between • (1) protecting anonymity in order to encourage speech and allow speakers to control their speech, and • (2) recognizing that anonymity deprives the audience of valuable information and can be misleading; in limited circumstances these problems can outweigh the value of anonymity • Hence, SCT noted the right to anonymity may be qualified • Even in McIntyre, SCT hinted that there might be instances (p. 291) when anonymity could be overridden – e.g., re particular candidate’s activities, activities on the eve of elections – because the need for identifying information might be too important • McConnell and other campaign related cases make clear the Court’s concern that in the election campaign context, contributions, expenditures and certain kinds of ads about political candidates in certain media may be so detrimental to discourse that we must disclose information about their source Possible Reconciliation

9. Citizens submitted records request under the Washington State Public Records Act for the names of petition signers re petition for a referendum to repeal a law expanding rights of same-sex partners. The Wash. Sec. of State, consistent with state law, indicated that he would release the names. The group that circulated the petition sought an injunction blocking release of the information claiming that the release of their names burdened their 1A rights. SCT upheld disclosure based on state interest in preventing electoral fraud but said petition signers could get injunction if had actual proof of harassment, which they didn’t have. How is this case different from the McIntyre, SWP? Is there less need for anonymity? Or just less sense that harassment was an issue? Anonymity & Referenda – Doe v. Reed

10. To what extent do the concerns raised about anonymous speech in the election-related context extend to other areas of speech regulation – i.e., the Internet? • Example: • It is a crime to knowingly initiate an anonymous Internet communication with the intent to annoy, abuse, threaten, or harass any person who receives the communication. Is the Internet more conducive to problems with anonymous speech? Even so are there problems with the new law? Anonymity & the Internet