In my September 3, 2019 post N.J. AG
Confirms: State’s Disclosure Law is about Stifling Political Accountability, I covered my comments in support of two lawsuits, one filed by Americans
for Prosperity and another reportedly being prepared by the American Civil
Liberties Union, challenging New Jersey’s new law (S1500) banning so-called “dark money” donations to political activist
groups. These donations are kept confidential by the groups, but the new law
makes public disclosure mandatory. For now only donations totalling $10,000 or
more must be disclosed. But the precedent puts all private donations at risk.
Ayn Rand identified a crippling idea that
mystical thought leaders have foisted on us—a phenomena she labeled the Soul-Body
Dichotomy. She identified the
nature and various manifestations of this dichotomy; that a person’s “body and
his consciousness are two enemies engaged in deadly conflict, two antagonists
of opposite natures, contradictory claims, incompatible needs.” She urged the
people she called the New
Intellectuals “discard its
irrational conflicts and contradictions, such as: mind versus heart, thought
versus action, reality versus desire, the practical versus the moral.”
The ongoing war against unobstructed political
campaign financing is a perfect illustration of how the soul-body dichotomy,
particularly its “thought versus action” manifestation, is employed to abridge
free speech by people who then simultaneously claim to be supporters of free
speech. In N.J.
has new law to unmask secret campaign donors. A lawsuit aims to kill it, I replied to two comments in support of the law. Rand’s
identification of the soul-body dichotomy is invaluable in framing my replies.
Following are the comments and my replies.
DRS wrote:
I am confused. How is identifying the speaker an impingement on
the right of free speech? That is the right to stand up and speak your mind
freely, not the right to hide and take pot shots from behind a secure wall.
You mean like you’re doing
from behind the “secure wall” of the pseudonym “DRS”? Legally forcing
the Star-Ledger to disclose DRS’s indentity would be no different from forcing
PACs to disclose their donors.
Good question, though.
Spending is integral to speech (See my reply to Curious 11 above). Anonymous
spending equals anonymous speech. Anonymous speech has been sanctioned by
Supreme Court justices John Harlin II, Hugo Black, John Paul Stevens, and
Clarence Thomas. As SCOTUS ruled in NAACP
vs. Alabama,
“compelled disclosure” impairs individuals’ “collective effort to foster
beliefs” by exposing them to “manifestations of public hostility,” violating
fundamental rights to free association and privacy thereof, free speech, and
due process. David Keating (Institute for Free Speech) and Amol Sinha (ACLU)
elaborated in their joint 3/12/19 S-L op-ed:
[S]ignificant social movements of the last
century – for civil rights, racial equality, and LGBTQ rights, to name just a
few – were powered by the ability of like-minded people to join and support
groups, and to do so privately. Our society would not be where it is today
without this fundamental right.
Founding era intellectual
advocates of independence used anonymity to shield themselves from British
reprisals. The “right to . . . a secure wall”—the right to speak with privacy
and safety—is most certainly inalienable. You have no right to know who’s financing
free speech, if that person wants to remain anonymous. Neither does the
government, unless it’s part of a CRIMINAL investigation. The rights to privacy
and safety are moral rights legally protected under the 9th and 4th Amendments.
If one is inhibited from spending to finance his speech to protect his privacy,
one’s free speech rights have been violated.
Curious11
wrote:
We have the right to free speech... but you have to pay to be
heard. The legislation that passed that seeks to shed light on the “dark money”
should be welcomed as good governance and not scorned as an assault on free
speech. If one donates directly to a candidate then there are limits to the
amount of the donation and there are requirements for disclosure of the name of
the donor. Political Action Committees (the main vehicle for dark money used to
finance election outcomes) are nothing more than a method to circumvent
legitimate and transparent election finance rules. Therefore that creates an
environment where a few wealthy donors can easily drown out the majority
opinion on an issue and coerce politicians to do their bidding (lest the
politicians face a well financed primary challenge in the next election cycle
by a more pliable candidate).
I replied:
“You have to pay to be heard.”
Precisely. Opinions are formed inside your head, but get expressed in the
physical world. To separate the two is to cut you in half--pitting the
spiritual against the physical parts of your being. Freedom to think and
freedom to act are inseparable. Opinion is thought. Spending is action.
Intellectual freedom and economic freedom are corollaries. If the government
controls spending, it controls your ability to “be heard”. If privacy concerns
inhibit you from financing the expression of your ideas, your free speech
rights have been abridged. That’s why courts have long protected anonymous
speech. (See my reply to DRS below).
Terms like “dark money” and
“wealthy donors . . . drown out the majority” are nonsensical terms designed to
hide the real intention, which is to stifle free speech and protect politicians
from accountability. “Dark” means private, and that money is the individual’s
private business, no one else's. The right to privacy is a moral right and is
legally protected under the Ninth Amendment. If you fear being “drowned out”,
it is government you should fear, not other donors, however large. PACS do not
“finance election outcomes.” Voters determine outcomes. Nor can PACs “coerce”
politicians. Politicians hold the power of the gun, not private individuals.
PACs merely finance expression of ideas and opinions and persuasion. Compulsory
disclosure laws violate free speech rights.
Curious 11 has it exactly backwards. It is absurd to
claim that abridging the MEANS to free speech does not abridge free speech. The
very fact that we have to pay to exercise our free speech is the best argument
AGAINST S1500. Compulsory disclosure laws violate the First Amendment’s
prohibition on “abridging the freedom of speech.”
Related Reading:
The Intimidation Game: How the Left
Is Silencing Free Speech--by Kimberley Strassel, especially Chapter 2, “Publius & Co.”
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