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GUEST COLUMN: Public’s ‘right to know’ can clash with right to free speech

Ari Armstrong Updated: May 13, 2011 at 12:00 am

According to the principle of free speech embodied in the First Amendment, people have the right to speak their minds on the issues important to them, free from government interference. They have the right to finance the propagation of their beliefs and to coordinate with others to speak.

According to Jenny Flanagan of Colorado Common Cause, the public has a “right to know” the financial details of those who fight funded campaigns for or against ballot measures. However, the laws required to establish this alleged public “right” necessarily violate the free speech rights of individuals.

The state’s campaign laws, approved by voters in 2002 and enshrined in Article XXVIII of Colorado’s Constitution, impose burdensome reporting requirements that especially harm small citizen groups.

If you wish to devote even a small budget to speaking out on a ballot measure, you must register with the government and report your finances as an “issue committee.”

To do this, you must work your way through 100 pages of dense legalese compiled by the Secretary of State. Then, you must obey complex and time-consuming reporting requirements, tracking in exhaustive detail your donors and expenses. If you make a minor paperwork error, you face fines of $50 per day per violation, though you might be able to beg the Secretary of State’s office to waive your fines.

Even if you get through all that, an attack lawyer can still sue you under the laws for any error, however trivial, real or concocted. Just ask Matt Arnold of Clear the Bench, who was sued under the campaign laws even after he followed the advice of the (former) Secretary of State. These burdens especially discourage small citizen groups from getting involved in the political process.

Thankfully, following a court decision last November siding with a small citizen group near Parker, current Secretary of State Scott Gessler proposed a rule raising the “trigger” amount for reporting from $200 to $5,000. At least the change would free smaller groups from the onerous burdens — though not necessarily from the threat of harassing lawsuits.

The campaign laws also outlaw anonymous speech pertaining to funded efforts for or against any ballot measure. Yet the right of free speech entails the right to speak anonymously.

Anonymous speech enjoys a long and noble tradition in the United States. The Federalist Papers, the most important documents defending the Constitution, originally were published anonymously. So was Thomas Paine’s Common Sense.

A person might wish to support a cause anonymously to avoid possible legal, political, or criminal retribution. Issues involving abortion, guns, gay marriage, and immigration often provoke heated passions and sometimes worse. Yet Colorado’s campaign laws can require financial supporters of ballot campaigns to report their personal addresses as well as the addresses of their employers.

An anonymous supporter might also simply wish to encourage debate about the issues rather than his personality. As John Adams wrote, regardless of an anonymous speaker’s motives, “so far as the truth of facts and the weight of argument are in his favor, he ought to be duly regarded.”

A person has the right to choose how to speak, as well as what to speak about. Granting the public a “right to know” the financial details in question grants to some the ability to use government force to stop others from speaking in politically disapproved ways.

The fact that the public’s alleged “right to know” clashes with the fundamental human right of free speech indicates that there simply is no public “right to know” regarding details about private citizens. It is only a legal entitlement masquerading as a right.

People do have every right to ignore messages they distrust. They can vote against a measure whose backers do not disclose their donors. 

Opponents can raise questions about campaigns with secret donors. Last year, the secrecy surrounding measures 60, 61, and 101 made many voters suspicious. Moreover, donors themselves can agree to give only to causes that voluntarily disclose.

People have a right to disclose their own financial contributions to political causes, if they wish. And voters have a right to request such disclosures. But such disclosures cannot be mandated by law without infringing others’ rights of free speech, and that’s why Colorado’s campaign finance laws should be repealed.


Ari Armstrong has written about a wide range of issues, including education, taxes, self-defense, and drug policy. His website is http://www.ariarmstrong.com

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