White House Press Secretary Robert Gibbs said something quite extraordinary the other day. In defending President Obama’s attacks on the U.S. Chamber of Commerce’s temerity to actually engage in political speech Gibbs remarked:
"There's no reason to back off," he said. "If there are organizations raising tens of millions of dollars who won't tell us who their donors are, my guess is they're not telling us for a reason -- because they have something to hide."
Gibbs’s comments come in the context of the White House’s support for additional disclosure requirements, such as the DISCLOSE Act that we have discussed on this blog many times. Thus, Gibbs is arguing that groups that engage in public debate about elections should be legally required to tell us who they get their money from, and if they don’t it must be evidence of something sinister.
I wonder if Gibbs thinks the NAACP was such a sinister group in the 1950s when it fought the State of Alabama over its membership lists. In a landmark decision the Supreme Court unanimously concluded that the state’s attempt to compel the NAACP to produce the lists violated the right to freedom of association. It said “Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs.”
The NAACP’s cause of racial equality was, of course, a “dissident belief” in 1950s Alabama. Many other beliefs are often “dissident,” such as opposition to the invasion of Afghanistan after the 9/11 attacks, opposition to the minimum wage, and defending the right to burn the American flag. Beliefs opposed to each other can even be dissident at the same time, such as groups that are for/against same sex marriage. Perhaps the most obvious example of a group that might fear retribution is one that speaks out for or against candidates for office, since candidates can often make life miserable for those who opposed them during the election. Groups that advocate all of these views have an interest in protecting the anonymity of their members and donors. This reflects a long tradition of protections of anonymous speech that extends back to, and before, the anonymously published Federalist Papers.
The point is, groups that spend money on speech often do have “something to hide.” They want to protect themselves and their associates from the powerful people they’ve criticized—people like Robert Gibbs and his boss. Certainly, everyone has the right to criticize groups with which they do not agree. That’s a freedom the First Amendment guarantees just as much as the freedom to speak anonymously. But no one has the right to use the government to force others to disclose their members or funding sources so they can attack and try to intimidate them into silence. As the Supreme Court has said, anonymity “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.”
People like Gibbs are free to discount speech because it is anonymous or its funding sources are kept private, just as others are free to ignore that issue entirely and focus on the issues and the arguments made. As the Supreme Court made clear in Citizens United, the decision that lead to this battle, “The First Amendment confirms the freedom to think for ourselves.” If Gibbs and his boss had more confidence in the ability of Americans to do that, perhaps they would turn their attention to more pressing issues.
Image Source: Randy