Inevitably, whenever one starts reading about the government’s “compelling” need to collect information on the political activity of American citizens, one comes across this quote from Justice Louis Brandeis: “Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.” Ever since the Supreme Court used the quote in Buckley v. Valeo to support federal campaign disclosure laws, anyone arguing that the government should not be in the business of maintaining databases of the political activities of its citizens is confronted with this chestnut.
It’s time to put this cliché to rest, if for no other reason than it is purely idiotic from a substantive standpoint. Try treating your next bout of sepsis with sunlight and see how well that goes. Somehow widespread electrification across the U.S. has not alleviated the need for policemen. If someone other than Louis Brandeis had said this, most people would think that that person was delusional.
Moreover, this line has nothing to do with the First Amendment. Brandeis wrote this line in a book, Other People’s Money and How the Bankers Use It that dealt with bankers’ use of “other people’s money” to invest in companies in which they held interlocking directorates and other financial shenanigans. He was urging that the financial interests of these bankers should be transparent so that investors and depositors knew what happened to their money. His line was not a call for the widespread collection of data on citizen speech that the government engages in today.
Finally, when employing this quote, most pro-regulation writers do not include the sentence that immediately precedes the “disinfectant” line: “Publicity is justly commended as a remedy for social and industrial diseases.” Whatever a “social or industrial disease” may be, the First Amendment does not qualify. Rather, the First Amendment is the key to American liberty and an indispensible tool against tyranny; when government monitors and collects information about the political speech and activities of Americans, First Amendment rights are harmed. It’s high time we stopped applying a remedy assumed to eliminate “social and industrial diseases” to one of our most fundamental constitutional rights.
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