The termination of Brendan Eich – a big story earlier this month — raised important First Amendment issues concerning the boundary line between the right of individuals to engage in private political activity and the public interest in campaign finance disclosure. There is a tension between the two. The Eich affair tells us it’s time to take a fresh look at balancing them.
Prop 8 was subsequently invalidated by the courts, and the passage of time has changed popular attitudes. Today, same-sex marriage commands majority support in every region of the country, and in every age group.
But Eich’s 2008 contribution – like that of all contributors, pro and con, to the Prop 8 contest –remains a matter of public record. And publicity has its consequences. In Eich’s case, it was a career-ender.
Commentators may have differed on their attitudes toward his termination, but a consensus quickly emerged that this was a private matter between him and his employer, and, as such, beyond the reach of the First Amendment.
“At the risk of sounding pedantic,” wrote a commentator for Slate, sounding pedantic,
…[T]the First Amendment applies exclusively to state actors, like Congress or state legislatures, so a private corporation like Mozilla simply cannot infringe upon an employee’s free speech rights, even if it wanted to. There is no wiggle room around this point. It is a basic constitutional fact.
A commentator for National Review Online agreed that “this sordid and alarming little affair does not in any way implicate the First Amendment.” Andrew Sullivan, redoubtable champion of same-sex marriage but also one of the first to criticize Mozilla for its intolerance, conceded that Eich “wasn’t a victim of government censorship or intimidation…. He still has his full First Amendment rights.”
Well, no. Eich doesn’t have his full First Amendment rights. He never did.
The First Amendment guarantees the right to freely associate with others on political matters. Under certain circumstances, this constitutional right confers a zone of privacy. But Eich become embroiled in controversy because his $1,000 contribution was a public record, available for all to see. For contributions of $100 or more to ballot initiatives, California law requires the disclosure of the contributor’s name, street address, occupation, employer, amount, and position (pro or con).
When the government’s campaign disclosure laws collide with the First Amendment right to freely associate with others for political purposes, the courts have to decide which one gives way.
The Supreme Court confronted and explained this tension in the 1958 case of NAACP v.Alabama. The NAACP had moved its operations into Alabama to engage in such subversive activities as gaining the admission of black students into the state university, and boycotting segregated bus systems. The State of Alabama ordered the NAACP to disclose its membership lists and certain financial information. When the NAACP refused, it was fined $100,000 and declared in contempt. The Supreme Court ruled in favor of the NAACP. It noted that under the First Amendment, the NAACP members had a right to associate with one another privately to advance their political beliefs. The evidence before the Court showed that
…[O]n past occasions revelation of the identity of [the NAACP’s] rank-and-file members has exposed these members to economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility. Under these circumstances, we think it apparent that compelled disclosure of petitioner’s Alabama membership is likely to affect adversely the ability of petitioner and its members to pursue their collective effort to foster beliefs which they admittedly have the right to advocate, in that it may induce members to withdraw from the Association and dissuade others from joining it because of fear of exposure of their beliefs shown through their associations and of the consequences of this exposure.
The State of Alabama argued the same point that the commentators on the Eich affair made; namely, that the loss of employment by NAACP members was a result of private, not government action, and therefore the First Amendment was not at issue. But the High Court disposed of this distinction, based on the obvious fact that the private firings took place only a result of the government-compelled disclosure:
It is not sufficient to answer, as the State does here, that whatever repressive effect compulsory disclosure of names of petitioner’s members may have upon participation by Alabama citizens in petitioner’s activities follows not from state action but from private community pressures. The crucial factor is the interplay of governmental and private action, for it is only after the initial exertion of state power represented by the production order that private action takes hold.
The same holds true in the Eich affair. True, Mozilla fired Eich, not the State of California. But Mozilla’s private action occurred only because of California’s public requirement that Eich’s contribution to Prop 8 be disclosed.
Now of course there are legitimate arguments for disclosing who contributes how much to which causes. Public disclosure can discourage and counteract corruption. Justice Brandeis famously observed that “sunlight is said to be the best disinfectant.”
In 1976, the Supreme Court upheld campaign disclosure laws in Buckley v. Valeo. But (there’s always a “but”) it did so only after acknowledging the need for a balancing test between the public’s right to know and the individual’s right to associate privately. The state interest in disclosure, the Court ruled, must be subjected to “exacting scrutiny.”
…[W]e have repeatedly found that compelled disclosure, in itself, can seriously infringe on privacy of association and belief guaranteed by the First Amendment. …
We long have recognized that significant encroachments on First Amendment rights of the sort that compelled disclosure imposes cannot be justified by a mere showing of some legitimate governmental interest. Since NAACP v. Alabama we have required that the subordinating interests of the State must survive exacting scrutiny. We also have insisted that there be a “relevant correlation” or “substantial relation” between the governmental interest and the information required to be disclosed. … This type of scrutiny is necessary even if any deterrent effect on the exercise of First Amendment rights arises, not through direct government action, but indirectly as an unintended but inevitable result of the government’s conduct in requiring disclosure.
A few years after handing down Buckley v. Valeo, the Supreme Court had a chance to engage in this balancing test in Brown v. Socialist Workers ’74 Campaign Committee. That 1982 decision was written by Thurgood Marshall, one of the NAACP’s attorneys in NAACP v. Alabama. Justice Marshall took note of the fact that members of the Socialist Workers Party had been subjected to harassment after their membership activities were disclosed. For example, “in the 12-month period before trial 22 SWP members, including 4 in Ohio, were fired because of their party membership.” As in the Eich affair, the firings were an outgrowth of “private hostility,” not state action, but they happened only because of the state-mandated disclosure requirements. The Court struck down the disclosure requirements.
The discussions in Buckley v. Valeo and Brown v. Socialist Workers were in the context of minor parties. But both cases were based on the Court’s holding in NAACP v. Alabama. Their rationales apply to any situations in which a speaker, like Eich, faces termination or other hostility as a result of public disclosure requirements.
How would Brendan Eich have fared under the strict scrutiny test articulated by the Supreme Court? In Buckley v. Valeo, the Court identified three reasons for overcoming privacy rights and compelling the public disclosure of contributions. First, disclosure of a candidate’s financial support allows voters to see where he really stands in the political spectrum. Such information is a more reliable barometer than party labels and campaign speeches. That rationale might make sense in regard to political contributions to candidates running for office. Knowing who supports a candidate financially may tell us a lot about that candidate’s convictions. But it’s completely inapplicable to a ballot initiative like Prop 8. Voters already knew what the Proposition stood for: marriage is between a man and a woman. Voters didn’t need to know who was contributing to its support to gauge its message. For the same reason, voters did not need to know who was contributing to the opposition to understand what No on Prop 8 meant.
Second, the Court has said, disclosure counters corruption. “A public armed with information about a candidate’s most generous supporters is better able to detect any post-election special favors that may be given in return.” Again, this factor is inapplicable to a ballot initiative like Prop 8. Brendan Eich did not stand to receive any special favors from the passage of Prop 8. His commitment to the cause was philosophical, not financial.
Third, disclosure allows the public to see that financial contribution limits are being enforced. But if that’s the purpose, why not limit the disclosure to the dollar amount of the contribution? Why require the disclosure of the contributor’s position on the issue? Or his address? Or his employer’s name?
In short, it’s hard to see how any of the factors identified by the Supreme Court in Buckley v. Valeo applied to the contributors on either side of the Prop 8 contest.
Even if there were legitimate reasons for disclosure in 2008, what possible justification could exist for keeping the information public six years later? The election, and the judicial review of that election, are fully and finally concluded. There is nothing anyone can do at this point to corrupt the electoral process. There is no lingering rot for Justice’s Brandeis’s sunlight to disinfect.
The Eich affair underscores the need to revisit and rebalance the tension between campaign disclosure laws and the First Amendment right to privately associate for political purposes.
The case law and legislation relevant to that tension are products of a world long gone. California’s Political Reform Act, mandating disclosure of contributions of $100 or more for ballot initiatives, was enacted in 1974. Buckley v. Valeo examined the constitutionality of the Federal Election Campaign Act of 1971. The decision issued in 1976.
Forty years ago, there was no internet. “Public disclosure” meant information typed on documents filed in some state building. An enterprising researcher or reporter, with time on his hands, might navigate the bureaucracy and find something of interest. But the average citizen neither knew nor cared whether his neighbor had contributed $100 to a ballot initiative.
It is a different world today. The names, addresses, and employers of contributors to ballot initiatives are available online, searchable by each of those fields. In fact, during the Prop 8 campaign, websites were designed to allow activists to combine the public data with Google Maps, to show the geographic locations of contributors so that picketers could demonstrate outside their homes.
The required disclosure not only of the contributors’ names and addresses, but also of their employers, allowed activists to pressure businesses to terminate Prop 8 supporters. Long before Brendan Eich was forced to resign, a number of other contributors faced the same experience. The director of the nonprofit California Musical Theater, and the director of the Los Angeles Film Festival, were both forced to resign from their posts, once their support of Prop 8 became known, and their organizations became the targets of protests. Not all of those subjected to such treatment were prominent people like Brendan Eich. Majorie Christoffersen, a 67-year old waitress, found that her restaurant became the target of demonstrations once the news of her $100 contribution became public. She eventually resigned to prevent further interference with the business of the restaurant, which was owned by her mother.
Elections are often messy proceedings, and it is likely one could find examples of Prop 8 opponents who were also harassed or intimidated when their contributions became known. No side of the political spectrum has a monopoly on obnoxious behavior.
But that’s the point. This should not be a partisan issue, dividing same-sex marriage proponents from opponents, or Democrats from Republicans, or liberals from conservatives. Public disclosure today is far too broad and far too intrusive for everyone. Disclosure of large financial contributions to political candidates who, once elected, might be in a position to reward their backers, is one thing. But disclosure of $100 contributions to ballot initiatives – where the prospect of reaping financial rewards is nonexistent — makes no sense. It is not a safeguard of the electoral process. It is merely an excuse for snooping.
Some might reply: What’s wrong with a little snooping? Elections are public processes. Shouldn’t people, even small contributors, have the courage of their convictions? If they can’t stand the heat, let them stay out of the kitchen.
The answer may be found in the polling booth. When we vote, we pull the curtain, and we make our selections in private. Anonymous voting is part of our long and cherished heritage of private political activity, a heritage which dates back to the founding of the Republic. The authors of the Federalist Papers, which explicated the principles of nation’s new Constitution, were patriotic and public-spirited men. But they chose to participate in civic affairs privately, writing under the pseudonym “Publius.”
Brendan Eich – and the activists on both sides of the Prop 8 battle — deserve the same right.