Sheridan: Con-Law

POLITICAL ANONYMITY

Bob Egelko, the S.F. Chronicle's law reporter, reports that a federal judge has ruled that donors supporting a controversial anti-gay marriage ballot proposition have no right to remain anonymous.

This strikes me as odd.  Back in the day, at least one jurisdiction in the South enacted a law requiring the NAACP to disclose its membership list, as a way of frightening away membership and support.  The Court held the law unconstitutional.  The right to participate anonymously to avoid repercussion was held to be a constitutional right.

In another case, a local ordinance required that people leafleting neighborhoods register first with the police department or homeowner's association, I forget which.  Same ruling; the right to leaflet anonymously was held to be part of freedom of speech, publication, and the like, such as assembly.

The right to vote in a public election, say for president, Congress, or to the state bench, is the right to vote anonymously.

I don't see how those who contribute to political organizations can be required to disclose their true identity. Even more-so following the Citizens United case which held that corporations have the right to speak politically, meaning to spend all they want despite a century of legal restrictions.

How can membership in a political agitation and lobbying organization and leafleting, anonymously as to both, be held constitutionally protected, but not contributing to support a ballot proposition?   Especially when the right to vote anonymously is itself held to be one of the most telling earmarks of democracy.

I'm having trouble accepting the reasoning of the judge, below, who says, in effect, "This is different."  What's different about it?  That he cannot foresee the negative political repercussion?  

Where?  

Everwhere?  

Certainly not in San Francisco.

Judge: Prop. 8 donors have no right to anonymity

Bob Egelko, Chronicle Staff Writer

Monday, November 7, 2011

(11-07) 15:57 PST SAN FRANCISCO -- A federal judge says donors to the $40 million campaign that banned same-sex marriage in California aren't entitled to the anonymity that the U.S. Supreme Court has granted to minor parties operating in a hostile climate.

Only organizations like the Socialist Workers Party during the Cold War and the NAACP in the segregated South - "small, persecuted groups whose very existence depended on some manner of anonymity" - have been exempted from laws requiring that members and contributors be disclosed, U.S. District Judge Morrison England said Friday.

He said there is no evidence that the 7 million Californians who voted for Proposition 8 in 2008 could be considered a "fringe organization" with unpopular or unorthodox views, or that leaving donors in the public record would frighten away contributors to future campaigns.

England's written ruling followed his decision at an Oct. 21 hearing in Sacramento to dismiss a lawsuit by committees that backed Prop. 8 seeking an exemption from the state law that makes public the names of all who contributed $100 or more.

James Bopp, a lawyer for Protect Marriage and the National Organization for Marriage, said Monday he would appeal England's ruling. He predicted higher courts would find that campaign contributors who face likely harassment should be shielded from disclosure even if a majority of voters supported them.

"An aggressive minority can intimidate a much larger group of peace-loving and law-abiding citizens," Bopp said.

Prop. 8 defined marriage as the union of a man and a woman. Names of donors on both sides of the hotly contested campaign have been listed on the state's web site since the November 2008 election. England had refused to block disclosure of the pro-Prop. 8 contributors in January 2009.

The lawsuit included 58 declarations saying Prop. 8 supporters were subjected to vandalism, hate mail, boycotts and death threats. England said the plaintiffs presented much the same evidence in 2009 and it did not justify exempting campaign contributors from disclosure.

The "relatively few" incidents of criminal threats and violence were referred to police and prosecutors, the judge said. He said most of the evidence fell into other categories: predictable excesses by both sides in a bitterly fought campaign, like lawn sign vandalism; legally protected activities, like economic boycotts; and events not clearly connected to Prop. 8, like church protests in other states.

The measure's sponsors presented no evidence that harassment made it harder for them to raise money during the campaign or that it has continued since the election, England said.

He also rejected a claim by Prop. 8 sponsors that the $100 threshold for disclosing donors' names, set in 1974, is obsolete because of inflation. Other courts have upheld lower limits, England said, and the disclosure requirement helps voters make informed decisions about ballot measures.

E-mail Bob Egelko at begelko@sfchronicle.com.

http://sfgate.com/cgi-bin/article.cgi?f=/c/a/2011/11/07/BA0Q1LRL5E.DTL

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JAPAN BREAKWATER; SELF-DECEPTION, THE BEST KIND

In order to prevent destruction of cities, Japan, after WWII, built huge seawalls.  The tsunami in northeast Japen earlier this year in Fukushima proved that they didn't work.  First the earthquake, then the tsunami, then the collapse of the seawall, or dike, and then the meltdown of the nuclear reactors erected behind them.

The Japanese have a reputation for being intelligent, right?  Right; but they are also known for being human, which means that they have their share of stupidity, not to mention the cruelty they put on display during WWII.

Now, Japan is set to rebuild their seawall, no doubt to exclamations that this time it will be different; this time the dike will hold, come the next tsunami, which is only a matter of time.

Why would they want to repeat this mistake?

Why not, instead, erect a series of strong pylons, side-by-side, next to each other in a string along the coast.  This time, if they say that this wall of pilings will prevent the next tsunami from destroying the town behind the wall, and the inhabitants, the people will know it's not true.  Build a solid wall and they believe the deception.  Neighboring pylons will contain the seeds of warning that such assurances are not true.  Not only that, they may serve to break up the force of the next tsunami.  

How do I know?  

I don't, but I do expect that those who hear the assurance will not be so credulous as to what the authorities say.

In this case, partial lies will serve better than the big ones.

On the theory that we're our own worst enemy, we must take care not to deceive ourselves, repeatedly.

The article that inspies this is here.

 

DISORDERLY EXPRESSION

A few months ago San Francisco BART (Bay Area Rapid Transit) authorities disabled the WiFi capacity in the subway to prevent flash mobs from disrupting operations in the underground stations by gathering suddenly in response to a Tweet.  

The protesters were outraged by two fatal shootings by BART police in recent months.  

In one, a young BART cop, Johannes Meserle, attempted to use his Taser, an electric shock device, to subdue a suspect, Oscar Grant, who was being held down, lying prone, by fellow officers.  In reaching for what he thought was his Taser, the officer unholstered his service revolver and shot the man dead; the officer was charged with murder, found guilty by a jury of manslaughter, and served a term in state prison.

The recent protesters would suddenly gather as a group underground and disrupt operations, making it difficult for ordinary riders to enter or exit the station.

So shutting off the protesters' ability to alert each other to assemble to disrupt transportation was a good thing, right?

Not so fast.  

Why?

Because in shutting down the ability of the protesters to communicate, BART authorities, a quasi-governmental agency with rule-making and enforcement authority, was also interfering with the ability of non-protesters riding the subway to communicate.

Why is that important?

Suppose the ordinary rider wanted to call the police or fire department?  Or BART officials?  Or family members?  Or someone at their destination to advise that they'd be delayed?

Why should the actions of a few cause the elimination of your right to communicate, assuming that you are an ordinary rider not interested in joining the protest?

After much public discussion, BART authorities saw the error of their ways, under threat of federal investigation...it is a federal crime to interfere with electronic communications under the anti-wiretapping section 605 of the Federal Communications Act...and  decided that it was better to protect freedom of communication for all than to shut it down for all to thwart some.

What raises this issue again is that Britain has had to face the same issue as to whether the activity of some in using the new electronic communication media such as text messaging and tweeting should result in shutting it down for all in order to thwart messages that the government dislikes.

Recall that earlier this year, in what is called the Arab Spring, governments have been overthrown in Tunisia, Egypt, and Libya, with uprisings in Yemen, Bahrain, and Syria, against autocratic governments. Saudi has taken preventive measures to avoid uprisings arising in the first place.

In one of the world's great examples of the law of unintended consequences, Egypt's Hosni Mubarak tried to cancel the ability of the protesters in Cairo from summoning supporters to Tahrir Square by shutting down the central, government controlled, electronic communications facility.  

This will teach them, Mubarak's lieutenants must have figured, now they won't be able to call each other to assemble.

Ironically, even more people began to assemble, spontaneously, it seemed, and the anti-Mubarak demonstrations grew even more powerful, despite the lack of ability to text and tweet each other.

What had happened?

Many of the supporters of the protests had been armchair supporters, cheering them on privately by watching on TV or the internet.  Without the abiliity to receive messages, many of them figured, "I'd better go down to the square to see for myself."  The passivist had been turned into activists.

If you were a Mubarak supporter, would you have imagined that this could happen?

So the British government, after at first supporting the power of government to shut down the ability of demonstrators and rioters (such as at Tottenham, a London suburb, recently, where flash mobs burned stores and buildings over a period of several nights), has now decided that shutting down the rioters' communications ability was poor policy; for one thing, it prevented the authorities from reading the text and email traffic in order to assess the magnitude and location of the threat.  Here's the article.