Archives: 09/2015

The Right to Anonymous Speech and Association

Since the Enlightenment, anonymous speech has been an integral component of social change, exemplified by Cato’s Letters, the Federalist Papers, and indeed the Anti-Federalist Papers. Accordingly, the Constitution provides a wide breath for the proper “breathing space” that “First Amendment freedoms need … to survive,” NAACP v. Button (1963), by protecting anonymous-speech rights and requiring judges to be skeptical regarding laws that compel disclosure of identifying information.

California’s attorney general, Kamala Harris, has broken with this tradition in demanding that the Center for Competitive Politics (CCP), an educational foundation and public-interest law firm specializing in the First Amendment and political law, disclose its principal donors to the state. The federal district court determined that the demand for this information in the name of “investigative efficiency” was a valid use of state power, and the U.S. Court of Appeals for the Ninth Circuit affirmed that ruling. Importantly, this rule applies to all nonprofit organizations soliciting donations or otherwise operating in California, so the associational chill reaches into the ability of every nonprofit to exist in California while preserving privacy through anonymity.

Cato, joined by the Competitive Enterprise Institute, has filed a brief supporting CCP’s request that the Supreme Court review the case. The Ninth Circuit failed to give proper solicitude to CCP’s constitutional rights here by not applying what lawyers call “heightened scrutiny” at each turn of its analysis. Instead, the lower court applied a party-specific, “as-applied” exception to the general rule that’s only relevant if the compelled disclosure has already survived a broader, “facial” challenge—and it collapsed the clear distinction between the importance of the government interest in disclosure and the extent of the nexus between the disclosure and the asserted interest.

Thailand’s Military Delivers Oppression Rather than Happiness

Thailand long has been the land of smiles, a friendly, informal place equally hospitable to backpackers and businessmen. But politics has gotten ugly in recent years.

As I warn in Forbes online: “Now a cartoonish dictator out of a Gilbert and Sullivan comic opera runs a not-so funny junta which jails opponents and suppresses free speech. The bombing of a popular Hindu shrine in Bangkok demonstrates the danger of terrorism becoming a tactic by the disaffected, in which case life in Thailand could generate far more frowns than smiles.” General Prayuth Chan-ocha seized power, last year, promising happiness, prosperity, and security. But the junta has failed to deliver all three.

Those denied political rights and civil liberties aren’t happy. The generals also found that economic forces do not yield to military dictates. The investigation of the recent Bangkok bombings yielded contradictory official claims, causing the government to threaten the public for circulating “false information.” General-Prime Minister Prayuth suggested that the police watch the New York police drama “Blue Bloods” for help.

The dictator betrays a touch of comic megalomania. On taking power he declared that happiness had returned to Thailand.  Irritated with a journalist’s question, he blustered: “Do you want me to use all of my powers? With my powers, I could shut down all media … I could have you shot.” Hopefully he wasn’t serious. However, the generalissimo often has surrendered to his inner autocrat. Freedom House reported that the coup pushed Thailand backwards from “partly free” to “not free,” with a reduction in civil liberties and especially political rights.

Employers Ignore E-Verify

Alabama, Arizona, Mississippi, and South Carolina have mandated E-Verify for all new hires in their state (see Table 1), which means that every time an employee is hired the employer must use the E-Verify system to check the worker’s ability to legally work.  In our recent Cato Institute policy analysis, Jim Harper and I document that employers are not using E-Verify despite the mandates in those states.  Washington Examiner reporter Sean Higgins wrote an excellent piece expanding on our findings.

Table 1 

E-Verify Mandate Dates

   

Alabama

Arizona

Mississippi

South Carolina

4/1/2012

1/1/2008

7/1/2011

7/1/2010

Turbulence Ahead: Domestic Drone Debate Intensifies

National Journal has a new piece out today that highlights the continuing controversy over the Federal Aviation Administration’s failure thus far to publish a final rule governing the operation of drones in domestic airspace (FAA’s current unmanned aerial system (UAS) guidance can be found here). One thing the FAA will not be doing is wading into the commercial sector privacy debate over drones; it has punted that issue to the National Telecommunications and Information Administration (NTIA). But what about federal agencies and their use of UASs?

Federal domestic UAS use has a checkered history.

In December 2014, the Department of Homeland Security’s Inspector General issued a report blasting the Customs and Border Protection (CBP) drone program as waste:

  • The unmanned aircraft did not meeting the CBP Office of Air and Marine (OAM) goal of being airborne 16 hours a day, every day of the year; in FY 2013, the aircraft were airborne 22 percent of the anticipated number of hours.
  • Compared to CBP’s total number of apprehensions, OAM attributed relatively few to unmanned aircraft operations.
  • OAM could not demonstrate that the unmanned aircraft have reduced the cost of border surveillance.
  • OAM expected the unmanned aircraft would be able to respond to motion sensor alerts and thus reduce the need for USBP response, but the IG found few instances of this having occurred.

Hotel California: Teachers Union Edition

If a teacher opts out of her union, but the union refuses to hear it, did she really opt out?

Even where state lawmakers have passed “right-to-work” laws legally enabling teachers to opt out of paying union dues, the practical ability to opt out is far from guaranteed. In Michigan, for example–where dues can cost up to $640 a year–the teachers union surreptitiously created new bureaucratic hoops for teachers attempting to opt out.

In an apparent effort to make it even more difficult or even stop school employees from exercising their right under right-to-work to not pay union dues or fees, the state’s largest teachers union has quietly set up an obscure post office box address to which members must send the required opt-out paperwork. It’s P.O. Box 51 East Lansing, MI 48826.

Based on a letter the Michigan Education Association sent to members who had tried to get out, and discussions with some of them, resignation requests sent to the regular union headquarters address will not be honored.

An extensive search of the union’s websites found references to the post office box address on just one page of MEA’s main website, and on one affiliate union’s website. There is no record of this post office box address existing before this month. In the past, union members who wanted to opt out just had to send notification to the address of the MEA’s headquarters in East Lansing.

The MEA had previously restricted the union dues opt-out period to the month of August until a judge ruled that the restriction was illegal. As reported in Michigan Capitol Confidential, about 5,000 teachers left the MEA last year despite the obstacles.