If You Don’t Want To Be Chilled Stay Out Of The Freezer

In an exchange Tuesday up on the main page, wardsmith asked me if I thought voters had a right to privacy. I smelled a rhetorical trap coming because the answer seemed so obvious — and, quite frankly, the exchange happened after I’d been dealing with a cagey lawyer on the other side of a case and I later realized that I was projecting my real-world OTJ stresses to the online arguments here, which was unfair and violated my own rule of charity. You can read the whole exchange starting here, if that interests you.

It turns out wardsmith was innocently probing for my opinion on the activities of a group called knowthyneighbor.org, which has recently had some legal success. It’s an interesting issue which merits deeper analysis than is possible in a comment, and besides, I feel bad for irrationally assuming the worst about an interlocutor rather than arguing in good faith, so in order to sort of make up to him for that, I now offer a platform for deeper discussion of the issue.

The issue arises out of people who have signed petitions and donated money to state initiatives opposing same-sex marriage in multiple states. They claim that they fear retaliation from supporters of SSM in various forms, including threats of violence, social shunning, and boycotts of their businesses. The most recent and probably most prominent of these concerns have been in Washingon, where proponents of the anti-SSM Referendum 71 have just lost a battle against public disclosure of their signature sponsors and financial backers, on the basis that they will suffer backlash for having engaged in this political activity — a battle in which they claimed that their rights to engage in free speech were threatened.

This would be what First Amendment types sometimes refer to as a “chilling effect,” some kind of pushback in response to the exercise of one’s free speech rights strong enough that one is deterred from speaking.

The phrase “chilling effect” harkens back to a passage from a Supreme Court case more than half a century ago striking down a law demanding anti-Communist loyalty oaths from public college instructors:

[I]n view of the nature of the teacher’s relation to the effective exercise of the rights which are safeguarded by the Bill of Rights and by the Fourteenth Amendment, inhibition of freedom of thought, and of action upon thought, in the case of teachers brings the safeguards of those amendments vividly into operation. Such unwarranted inhibition upon the free spirit of teachers affects not only those who, like the appellants, are immediately before the Court. It has an unmistakeable tendency to chill that free play of the spirit which all teachers ought especially to cultivate and practice; it makes for caution and timidity in their associations by potential teachers.

Weiman v. Updegraff (1952) 344 U.S. 183, 195 (Frankfurter, J., concurring, emphasis added. The question on the floor is whether the fear of nongovernmental reprisal for political activity in the face of the government complying with other laws — specifically “sunshine laws” intended to safeguard against corruption of the political process through disclosure of political activity — creates a strong enough chilling effect that the true interests and desires of the electorate are not appropriately expressed in the political arena.

Anyone with an opinion on any controversial issue is potentially subject to this chilling effect. Indeed, it need not even be particularly contoversial. Imagine that you’re in Boston in 2012, and the Apple store at which you’re interested in buying your new iPad 2 has a sign that says “Democrats 10% Off, Republicans Can Go To Radio Shack.” It leaves a bad taste in the mouth, doesn’t it? But as far as I can tell, there is no Federal or Massachusetts state law against refusing to do business with a Republican on the basis of that customer’s partisan affiliation. If the proprietor of that Apple store (I don’t know if it’s the corporation or a franchise or whatever) wants to discriminate against customers on the basis of partisan affiliation, I can find no law saying they cannot. It’s not treated the same way as an immutable characteric like race or sex. Or religion, which in theory is a mutable characteristic. But your only remedies here are private, lawful actions — you can shame and refuse to patronize a store like that. And doing so is, itself, an expression of your own political opinion and thus also an act of speech.

But most people are quick to point out, correctly, that the First Amendment does not protect you from criticism; you can be held to account for what you say in the court of public opinion and, by extension, in the court of private commerce. And it’s easy to tolerate a private chilling effect when it’s you withholding commerce or when the one whose business is drying up is someone who has said or done something that you disapprove of. Sometimes you get criticized for things you’ve said and done, and you just have to deal.

Do I have a privacy right in my partisan affiliation? Do I have that right within a private commercial transaction like buying an iPad? No, and no. My partisan affiliation is part of a public record. And the private party can do business with me on any terms it consents to which are not unlawful, and that includes requiring me to truthfully disclose my partisan affiliation.

Now, in California at least and I suspect in many other states, I do have a right of not only privacy but of secrecy in my actual vote. (See Article II, Section 7 of the California Constitution.) While the Federal constitution does not contain such an explicit right, I would probably infer the existence of a right to case a secret ballot for political office as inherently a part of a “republican form of government” which is guaranteed. Granted, it’s easy to get people to waive the secrecy of their ballot: ask them politely who they voted for and most people are more than happy to tell you because you have expressed an interest in their opinions. But voting is only kind of political activity. Debatably, it is not even speech.

But the issue is not how I vote, it’s other kinds of political activity. Sunshine laws are there precisely so the public has the ability to know who is supporting a particular political effort. If we want to be able to make public the knowledge of who donated how much money to what political candidate, then it only makes sense that we similarly know who donated how much money to support or oppose a particular initiative, referendum, or plebiscite, because those things will directly affect the law just as much as a political officeholder will.

Giving money to a political cause is considered an act of free speech, both by a majority of Americans and by the law. Even the notorious Citizens United decision is not controversial because it considers campaign donations acts of free speech, but rather because it affords those free speech rights to corporations. And if it’s free speech, then it’s said in public. You have no privacy rights in things that you do in public because you have no reasonable expectation that your statements are private.

Signing a petition to put initiative “X” on the ballot is, similarly, a public act. You know when you are signing it (most likely in a public location) that your signature will be, or at least may be, reviewed by some elections official and compared against voter registration records. And the document will then become part of the state’s archives. It is a public document and public documents are subject to public search.

This does not mean that we need to reach unreasonable results. The backers of anti-SSM initiatives have claimed that they were the subject of threats. But on examination, those threats and fears proved to be insubstantial (starting at page 18 of linked opinion). As summarized by Prof. Dale Carpeneter at Volokh Conspiracy, the actual, tangible, “chilling effect” backlash that supporters of Washington State’s anti-SSM initiative received consisted of:

• one supporter received an angry text message from his brother; was “mooned” by someone in a passing car; and was “flipped off” by some people in passing cars;
• one preacher was told by someone that his church would be picketed in an “appropriate” way, although no picket occurred;
• while collecting initiative signatures in a public place, one was glared at by two women who told him, “we have feelings too”;
• several had their pictures taken while in public places;
• some were sent notes containing vulgar language;
• one claimed a death threat was made on a website, but could not identify any such threat on the site, and withdrew the claim.

Other claims involved “bothersome” phone calls, and name-calling using words like “homophobe” and “fascist.” A couple of claims involved alleged physical threats, which were reported to police. There were, however, apparently no prosecutions, much less convictions, for actual threats. There was no actual physical violence. Most of the alleged incidents could not be tied to the initiative, since they were not directed at mere petition signers but to leaders and spokespersons opposed to gay rights over several years.

Nothing in that description rises remotely to the level of the sort of compelling governmental interest in preventing violence that might abrogate the fact that a great deal of what is described here is, itself, free speech and certainly not invasions of privacy. I’d be more sympathetic to claims of violence or threatened violence if there was any evidence that such took place. For instance, when someone throws a brick through a window, that’s a crime and should be treated accordingly even if the victims of the crime are not particularly savory people.

But calling out the supporters of political ideas with which you disagree is, itself, an act of political speech. There may indeed be a chilling effect associated with that. But you can’t have it both ways. The words “public” and “private” are opposites. If you want to speak publicly, you must do so in public, and doing so is inherently not private.