Tag: right to petition government

Democracy EXPOSED!

I found a release put out by the American Legislative Exchange Council today a little too meek. So let’s talk about the debate around ALEC, a group I’ve been involved with as a volunteer advisor since before I joined Cato. (The Communications and Technology Task Force used to be called “Telecommunications and Information Technology,” but that didn’t work well in our acronym-happy world.) ALEC is under seige because of alleged ties between its backing of “Stand Your Ground” laws and the Trayvon Martin case, in which a young black man was killed by a neighborhood watch officer of…uncertain ethnic background.

Tim Lynch and Walter Olson have made us aware that the Martin tragedy does not actually implicate Stand Your Ground. Tim has also made us aware of a case in which Stand Your Ground is implicated, that of an elderly Detroit man who shot and killed an 18-year-old entering his home armed with a handgun at 1:30 a.m.

There’s no question, as Tim said, that Zimmerman’s taking of Trayvon Martin’s life warrants intense scrutiny. (The very latest: Prosecutors intend to charge Zimmerman.) While that plays out, Cato will address self-defense law and gun rights at an event entitled “’Stand Your Ground’ Laws: Self-Defense or License to Kill?” on April 23rd, which I encourage you to attend or watch.

But ALEC is an odd target for scrutiny of the quality it’s getting. ALEC describes itself as dedicated to “the Jeffersonian principles of free markets, limited government, federalism, and individual liberty.” Toward this end it “enlist[s] state legislators from all parties and members of the private sector who share ALEC’s mission.”

Anti-ALEC site ALECExposed.org characterizes things differently:

Through the corporate-funded American Legislative Exchange Council, global corporations and state politicians vote behind closed doors to try to rewrite state laws that govern your rights. These so-called “model bills” reach into almost every area of American life and often directly benefit huge corporations. In ALEC’s own words, corporations have “a VOICE and a VOTE” on specific changes to the law that are then proposed in your state. DO YOU?

It’s very exciting stuff—the idea that people would organize themselves to affect the public policies of their states and nation.

The latter characterization of ALEC doesn’t square very well with the Trayvon Martin case, though. The ALECExposed site itself emphasizes that the National Rifle Association works through ALEC to promote and defend Stand Your Ground and other gun rights and self-defense laws. The NRA is a corporation, yes, but it’s an issue advocacy organization. It’s no more the huge or global corporation ALECExposed aims at than the Center for Media and Democracy, hosts of ALECExposed.

The point is made, though: Corporations are trying to influence our public policy! And they are working closely with state legislators to do it!

The horror.

I’ve looked, and there is no NCSLExposed.org. (Domain available!) The National Conference of State Legislatures is a similar group to ALEC: larger, center-left, and government-funded. In 2010, $10 million of NCSL’s $16.8 million general fund came from state legislatures. Most of the remainder comes from grants from federal agencies such as the federal Departments of Health and Human Services, Education, Energy, and Transportation, and from private foundations.

Here, let me re-phrase that:

Through the government-funded National Conference of State Legislatures, governments and foundations try to rewrite state laws that govern your rights. Their efforts reach into almost every area of American life and often directly benefit huge governments and corporations. In NCSL’s own words, it is an advocate for the interests of state governments before Congress and federal agencies. IS IT AN ADVOCATE FOR YOU?

I’ve done my best to make NCSL sound malign, though it’s not. Neither is ALEC malign. I agree with some of what both organizations do, and I disagree with some of what both organizations do.

And I suppose that reveals the trouble with the trouble with ALEC. It is a highly selective attack on one organization that has the peculiar quality of advancing the aims of the business sector, of libertarians, and conservatives. A larger organization that advances the aims of the government sector enjoys no attention in current debate. The hundreds of other organizations that advance the aims of various other sectors—unions, for example—not a peep. Even though RIGHT NOW unions are trying to influence public policy in ways they believe will help workers!

The First Amendment’s protections for freedom of speech, association, and petition of the government have in their background a vision for how our political society should work. Anybody should get to say anything they want, and anybody should organize however they want to advocate for the governing policies they want.

The opponents of ALEC’s positions should advocate the substantive polices they prefer, and they are certainly within their rights to do it in whatever way they prefer. Politics never runs out of ways to disappoint, though, and as a person who tries to deal with the substance of issues, working across partisan and ideological lines, I am amazed at and disappointed by the incoherence of the attack on ALEC.

And I am also disturbed by its anti-democratic and anti-speech quality. The implication I take from the attack on ALEC is that some groups, representing some interests, should not be able to participate in making our nation’s and states’ public policies.

There is one ray of light in all this: NCSL is featuring its concerns with REAL ID, the national ID law, on its homepage. And ALECExposed has a posted a buffoonishly marked-up version of ALEC’s 2007 resolution against REAL ID. NCSL would evidently back the implementation of a national ID if Congress were to fund it. Given its principles, ALEC would not.

Even this debate may help inform the public.

Even Unpopular Causes Get Full First Amendment Protection

Under Washington’s constitution, a popular vote must be ordered on any bill passed by the legislature if a specified percentage of state voters sign a petition for a referendum. Washington’s Public Records Act makes public records, including such referendum petitions, available for public inspection. In 2009, opponents of same-sex marriage used the referendum procedure to attempt to reverse a state law which expands the rights of state-registered domestic partners. Proponents of the law sought access to the petition and two of the petition signers sought a preliminary injunction to prevent disclosure of their personal information, arguing that the PRA violates their right to speak anonymously.

The Ninth Circuit Court of Appeals held that the right to access trumps the right to anonymity. The Supreme Court granted certiorari to determine whether the First Amendment right to privacy in political speech, association, and belief requires strict scrutiny when a state compels the public release of identifying information about petition signers, and whether compelled disclosure of such information is narrowly tailored to a compelling government interest.

Cato filed a brief supporting the petition signers, in which we argue that the Court should establish a bright-line rule prohibiting laws that mandate the full disclosure of petition signers’ identities and contact information. Public disclosure carries significant burdens and unconstitutionally chills the exercise of First Amendment rights when no compelling government interest is at stake.

If the Court finds that the state has a compelling interest in public disclosure, disclosure exemptions are constitutionally required. Failure to require exemptions would permit the government to suppress the expression of offensive or unpopular ideas and would discourage individuals from associating in the first place.

Finally, our brief argues that even exemptions are not a substitute for strict scrutiny and provide inadequate protection where disclosure is not justified by compelling state interests. Exemption rules still chill speech, by their nature as an ad hoc process without fixed standards; the government is ill-suited to identify which groups should be exempt from disclosure, as is evidenced by their poor track record of erroneously suppressing controversial or unpopular speech.

The case, Doe v. Reed, will be argued in April.

Adding Free Speech Insult to Property Rights Injury

My friend and former law firm colleague Mark Sigmon – who co-authored Cato’s brief in the New Haven firefighters case – is representing a man facing daily fines for displaying a large political message on his house.

David Bowden was upset about the way he had been treated by the town of Cary, NC, regarding damage to his property during a road-widening project.  This past July, Bowden hired someone to paint “Screwed By The Town of Cary” on the front of his house.  A few weeks ago, the town gave Bowden seven days to remove the sign or face daily fines – $100 for the first day, $250 for the second, $500 for each subsequent day – for violating a local sign ordinance. That’s when Mark, who’s affiliated with the ACLU of North Carolina, filed a lawsuit on Bowden’s behalf.   The complaint alleges that the town violated Bowden’s rights to free speech and to petition his government under the First Amendment and similar provisions of North Carolina’s constitution.

While the facts of this case are a bit colorful – and I’m sure Mark is enjoying the notoriety (here’s his appearance on Fox & Friends) – this is no laughing matter.  The town appears to be compounding the damage it did to a resident’s property rights by now violating his rights to speech and political expression. At least now the town has agreed to refrain from enforcing its ordinance and levying fines until the case is resolved – which is essentially a capitulation to Bowden’s request for a preliminary injunction.

For more news on this story go here, here, and here. And you can read the ACLU’s press release and access all the legal pleadings in the case here.