Transparency And Free Speech… Can They Coexist?

By DEACON MIKE MANNO, JD

I live in a state that is being invaded by hordes of Democratic presidential wannabes, all aiming for an electoral boost from next February’s first in the nation Iowa caucuses. So I’m almost immune by now to the constant drumbeat against President Trump, his family, and his supporters, or, as they are oft referred to, the deplorables.
I understand politics. I understand that the Democratic candidates need to show their partisans that if given the party’s presidential nomination, they can go toe-to-toe with Mr. Trump. Politics is hardball and the fainthearted need not apply.
But this year things have gone terribly wrong and it mimics what has gone wrong with our social discourse. We no longer can have an honest disagreement, respecting the other’s point of view as being honestly held. Nope. No longer is the opponent just wrong, he is now evil and must be publicly shamed and driven from the public square.
Exhibit A, I submit, is the action by Texas Democrat Cong. Joaquin Castro, brother and campaign chairman for Julian Castro, a former Obama cabinet secretary now one of the enlightened Democrats seeking the presidency. The congressman, only days after the horrible shooting in San Antonio, tweeted out the names and employers of 44 San Antonio residents who had donated to Mr. Trump’s campaign.
In explaining the “why” of what he did, Castro said, “Their contributions are fueling a campaign of hate.” Got that? Understand what he was saying? The left-leaning media won’t tell you, nor will any Democratic spokesman, but this is what he essentially said: “These people are scum of the earth and deserve what comes to them.” You see, since they support evil they, too, must be evil. Thus, to expose these evil men and women to public scrutiny is only right; the corollary, of course, is that this will shut them up.
And indeed it did. In one instance one of the “scum” was to appear on Fox News to be interviewed about the backlash he felt after the publication of his name. But, according to David Asman of Fox Business, the guest canceled just before airtime after he and his family decided that to appear might cause physical retaliation.
Oh, but the argument goes, the congressman only reported public information. Of course that’s true. Campaign donations are public and anyone who wanted to look up the information could easily find it. But in this age of incivility, should that information even be public, much less force-fed to the public? In other words, can transparency be used to squelch free speech?
The answer is YES, and left-leaning politicians, especially in the Obama administration, knew that, which is why so many laws and regulations governing political contributions to political entities require public disclosure of contributors. But what happens when these lists are made public?
Well, we know from a long line of cases involving membership lists, especially in the area of civil rights, that no good comes from the public disclosure of citizens’ names. In case after case when those names have been released, those individuals, their families, and their businesses have been targeted by overzealous opponents of the entities involved. In the political sphere contributor lists have been used to spread favors or to damage those financing the opposition.
In 2010, the U.S. Supreme Court decided the case of Citizens United v. The Federal Elections Commission. In that decision, one which was vigorously condemned by liberals and the Democrats, the court held that the First Amendment’s free speech clause protects political communications by corporations, including nonprofits, from legal restrictions placed by Congress in the 2002 Bipartisan Campaign Reform Act. However, the court left standing disclosure and reporting requirements of the 2002 law indicating that public disclosure of donors was sufficient to ensure against abuse.
Justice Clarence Thomas found that part of the opinion objectionable, and while supporting the remainder of the decision, wrote a dissent to that provision. In it he said:
“Congress may not abridge the right to anonymous speech based on the simple interest in providing voters with additional relevant information. In continuing to hold otherwise, the court misapprehends the import of recent events that some amici describe in which donors to certain causes were blacklisted, threatened, or otherwise targeted for retaliation.”
He then went on to describe the activities surrounding California’s Proposition 8, a ballot proposition which passed in 2008 and held that only a marriage between a man and a woman was valid in that state. Under the state law, any donor who gave more than $100 to any committee supporting or opposing the proposition had to disclose their name, business, or employer, and the total amount of the contribution. The secretary of state was then to make this information public on the Internet.
Justice Thomas continued, “Some opponents of Proposition 8 compiled this information and created websites with maps showing the locations of homes or businesses of Proposition 8 supporters. Many supporters (or their customers) suffered property damage, or threats of physical violence or death, as a result….Proposition 8 opponents also allegedly harassed the measure’s supporters by defacing or damaging their property….
“The director of the nonprofit California Musical Theater gave $1,000 to support the initiative; he was forced to resign after artists complained to his employer….The director of the Los Angeles Film Festival was forced to resign after giving $1,500 because opponents threatened to boycott and picket the next festival. And a woman who had managed her popular, family-owned restaurant for 26 years was forced to resign after she gave $100 because ‘throngs of [angry] protesters’ repeatedly arrived at the restaurant and ‘shouted shame on you at customers’.”
After listing several other incidents, all of which have been publicly reported, he concluded: “Disclaimer and disclosure requirements enable private citizens and elected officials to implement political strategies specifically calculated to curtail campaign-related activity and prevent the lawful, peaceful exercise of First Amendment rights.”
Of course none of this started with Mr. Trump or the current crop of political candidates. It has been building, however, as we can all see; from attacks on businesses who do not support same-sex marriage, or clinics that will not kill babies on demand, to the use of the IRS and federal election laws to shut up political opponents.
Even as recently as in the aftermath of the San Antonio shootings, the family of a man and wife who died protecting their newborn received death threats after meeting with President Trump during his visit to the city and introducing him to the baby whose life was spared.
One would think that Castro knew what he was doing when he posted those 44 names. He was, in effect, telling them to keep quiet and not to partake in the political process unless they were on the correct side, his side; otherwise accidents could happen. It was — very simply — a threat and he should have the decency to resign from office for making it. Of course he won’t and the Democrats in the House will do nothing about it.
They won’t because they are the beneficiaries of disclosure requirements. And for a good primer on how they were used in the IRS, FEC, and other scandals during the Obama administration, check out The Intimidation Game; How the Left is Silencing Free Speech by Kimberley Strassel of The Wall Street Journal. It will give you a fuller understanding of how the liberal version of transparency, masquerading as virtue, can kill free speech.
(You can contact Mike at: Deacon
Mike@q.com.)