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Friday, July 26, 2002


Our very thin-skinned Governor Davis wants to know who's been bad-mouthing him. For the past year he's been trying to force the American Taxpayers Alliance to disclose the names of its backers, after they began running TV ads attacking his handling of the power crisis.

Davis got a Superior Court judge to order the American Taxpayers Alliance to file reports as a political campaign committee, but it has appealed the order. Fortunately the ATA is likely to win on appeal, even if it has to appeal all the way up to the U.S. Supreme Court.

What makes me think so? After all, I'm not a lawyer (although I have a brother and cousins and late uncles who are and were attorneys, so I can claim genetic predisposition as well as a great deal of osmotic knowledge regarding legal arguments). Back in 1995 the Supreme Court issued a very broad and wonderfully-worded decision in McIntyre v. Ohio Elections Commission which provides substantial First Amendment protection to anonymous speech in general and anonymous pamphleteering in particular. It's worth quoting some of the highlights from that decision.

Citing its previous Talley decision, and harking back to the anonymous pamphleteers who helped found our nation, the Court noted Justice Black's comment that "...persecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all. ... Justice Black recalled England's abusive press licensing laws and seditious libel prosecutions, and he reminded us that even the arguments favoring the ratification of the Constitution advanced in the Federalist Papers were published under fictitious names. ... On occasion, quite apart from any threat of persecution, an advocate may believe her ideas will be more persuasive if her readers are unaware of her identity. Anonymity thereby provides a way for a writer who may be personally unpopular to ensure that readers will not prejudge her message simply because they do not like its proponent. Thus, even in the field of political rhetoric, where the identity of the speaker is an important component of many attempts to persuade,- City of Ladue v. Gilleo, 512 U. S. ___, ___ (1994) (slip op., at 13), the most effective advocates have sometimes opted for anonymity."

The Court went on to say that "Under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent. Anonymity is a shield from the tyranny of the majority. See generally J. S. Mill, On Liberty, in On Liberty and Considerations on Representative Government 1, 3-4 (R. McCallum ed. 1947). It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation-and their ideas from suppression-at the hand of an intolerant society. The right to remain anonymous may be abused when it shields fraudulent conduct. But political speech by its nature will sometimes have unpalatable consequences, and, in general, our society accords greater weight to the value of free speech than to the dangers of its misuse."

The Court summarized its decision by saying that "The freedom to publish anonymously is protected by the First Amendment, and, as Talley indicates, extends beyond the literary realm to the advocacy of political causes." It further described such political advocacy as "core political speech", and that any laws attempting to regulate it are subject to a standard of "exacting scrutiny'' under which restrictions would only be upheld if they were "narrowly tailored to serve an overriding state interest".

Given how vindictive Davis has proven himself to be, and how willing he is to use the powers of his office to battle and destroy his political opponents, it's no wonder that some of those opponents would prefer the shield of anonymity. And that's exactly why the First Amendment provides such a shield. I don't think Davis will succeed in this particular attempt to strike back at the American Taxpayers Alliance.

But that obviously won't stop him from trying.

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