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View Diary: SCOTUS To Hear Case On Right To Know Anti-Gay Signers (198 comments)

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  •  asdf (14+ / 0-)


    WHAT First amendment 'right to privacy'? I know of no such right.

    One has the right TO political speech - and to be secure in ones possessions and papers.

    But political speech is definitely not something that one can claim is private when one is using said speech to influence or change PUBLIC POLICY. It then becomes exempt from any claim of privacy.

    The only form of political 'speech' I know that is and must remain private is ones actual VOTE.

    I don't have "issues". I have a full subscription!

    by GayIthacan on Sat Jan 16, 2010 at 06:11:52 PM PST

    •  Read up on your history a bit? (0+ / 0-)

      First of all just fyi unless it is specifically negated in the constitution it is an individial right generally. Its' how the constitution works.

      Secondly you would not be posting here if it were not for the Pamphleteers who relied on anonymity to remain alive while founding the movement for independance. Google Thomas Paine and Ben franklin

      Forgive me but apparently you dont know much about our inate rights, history or the constitution.

      •  asdf (8+ / 0-)

        FYI dear, I have a Masters in American History AND teach.

        Now - do me a favor. Cite precisely which portion of the 1st Amendment guarantees any 'right to privacy' in political speech.

        Unfortunately for you, you cannot, since there is no such right - either in the document nor established by case law. In fact, the state in question mandates release of all signatories to petitions. I daresay nearly every state with petition drives does the same.

        In fact, no right to 'privacy' in granted directly in the Constitution. Anywhere. Only a right against unreasonable searches and seizures - neither of those applying to the case in question.

        But thanks for posting and permitting everyone to see just how completely clueless you are. :D

        I don't have "issues". I have a full subscription!

        by GayIthacan on Sat Jan 16, 2010 at 06:25:07 PM PST

        [ Parent ]

        •  But It Does State That Rights Unenumerated Exist (2+ / 0-)
          Recommended by:
          cdreid, mataliandy

          So I'd think we could establish rights various ways other than spelling them out in an amendment.

          The conservatives seem to read the 9th amendment inversely, that no rights pertain to the people that aren't enumerated.

          We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy.... --ML King "Beyond Vietnam"

          by Gooserock on Sat Jan 16, 2010 at 06:32:10 PM PST

          [ Parent ]

          •  But it doesn't establish a way... (2+ / 0-)
            Recommended by:
            wishingwell, homogenius

            To identify those unenumerated rights, only that those rights are protected. This is why the 9th Amendment is largely irrelevant in Constitutional Law.

            •  But the cert response asks about a right to (0+ / 0-)

              privacy in the FIRST amendment not in the unenumerated rights section. I had always thought that the FIRST amendment referred to government action against the press, the matter of religions and that. And while it contained a provision barring prior restriction of speech in the press, which is what it was a bout, banning authors and publishers from printing, it contained no legal restrictions on possible private reactions to the matter printed. That is, the government could not in advance prevent you from printing something foolish, but if you did it, the consequences were on you. Where did this FIRST amendment right to privacy come from?

        •  Since you want to claim (0+ / 0-)

          right of authority. Let us remove the gloves.

          The first amnedment doenst guarantee a right to privacy. Neither does it guarantee the right to bear arms. Or the right to vote. This will likely pass you at altitudes unreachable but perhaps if you wish to speak of the law you should have read the constitution and understand something of constitutional theory.

          For one to claim a masters in history and not know of the pamphleteers of the american revolution. Of our long history since of protecting anonymity of political speech says harsh things about the intstitutions you attended.

          Your "argument" in fact is the clueless , logicall flawed one the court has slapped down to the point of eyerolling in the far rights' attempts to do the following: Outlaw abortion. Eliminate whistleblower protection. Destroy Union movements. Protect political corruption.

          There is indeed a right to privacy. Whether you and the uneducated far right understand that or not.

        •  McIntyre v Ohio Elections Commission (0+ / 0-)

          US Supreme Court
          No. 93-986.

          Argued October 12, 1994
          Decided April 19, 1995


          Section 3599.09(A)'s prohibition of the distribution of anonymous campaign literature abridges the freedom of speech in violation of the First Amendment. Pp. 7-24.

          (a) The freedom to publish anonymously is protected by the First Amendment, and, as Talley indicates, extends beyond the literary realm to the advocacy of political causes. Pp. 7-9.
          (b) This Court's precedents make abundantly clear that the Ohio Supreme Court's reasonableness standard is significantly more lenient than is appropriate in a case of this kind. Although Talley concerned a different limitation than 3599.09(A) and thus does not necessarily control here, the First Amendment's protection of anonymity nevertheless applies. Section 3599.09(A) is not simply an Page II election code provision subject to the "ordinary litigation" test set forth in Anderson v. Celebrezze, 460 U.S. 780 , and similar cases. Rather, it is a regulation of core political speech. Moreover, the category of documents it covers is defined by their content - only those publications containing speech designed to influence the voters in an election need bear the required information. See, e.g., First Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 776 777. When a law burdens such speech, the Court applies "exacting scrutiny," upholding the restriction only if it is narrowly tailored to serve an overriding state interest. See, e.g., id., at 786. Pp. 914.
          (c) Section 3599.09(A)'s anonymous speech ban is not justified by Ohio's asserted interests in preventing fraudulent and libelous statements and in providing the electorate with relevant information. The claimed informational interest is plainly insufficient to support the statute's disclosure requirement, since the speaker's identity is no different from other components of a document's contents that the author is free to include or exclude, and the author's name and address add little to the reader's ability to evaluate the document in the case of a handbill written by a private citizen unknown to the reader. Moreover, the state interest in preventing fraud and libel (which Ohio vindicates by means of other, more direct prohibitions) does not justify 3599.09(A)'s extremely broad prohibition of anonymous leaflets. The statute encompasses all documents, regardless of whether they are arguably false or misleading. Although a State might somehow demonstrate that its enforcement interests justify a more limited identification requirement, Ohio has not met that burden here. Pp. 14-20.
          (d) This Court's opinions in Bellotti, 435 U.S., at 792 , n. 32 - which commented in dicta on the prophylactic effect of requiring identification of the source of corporate campaign advertising - and Buckley v. Valeo, 424 U.S. 1, 75 76 which approved mandatory disclosure of campaign-related expenditures - do not establish the constitutionality of 3599.09(A), since neither case involved a prohibition of anonymous campaign literature. Pp. 20-23.
          67 Ohio St. 3d 391, 618 N. E. 2d 152, reversed.
          STEVENS, J., delivered the opinion of the Court, in which O'CONNOR, KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined. GINSBURG, J., filed a concurring opinion. THOMAS, J., filed an opinion concurring in the judgment. SCALIA, J., filed a dissenting opinion, in which REHNQUIST, C. J., joined.

          TALLEY v. CALIFORNIA, 362 U.S. 60 (1960)

          Over petitioner's protest that it invaded his freedom of speech and press in violation of the Fourteenth and First Amendments to the Federal Constitution, he was convicted of violating a city ordinance which forbade distribution, in any place under any circumstances, of any handbill which did not have printed thereon the name and address of the person who prepared, distributed or sponsored it. Held: The ordinance is void on its face, and the conviction is reversed.

          Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind. Persecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all. The obnoxious press licensing law of England, which was also enforced on the Colonies was due in part to the knowledge that exposure of the names of printers, writers and distributors would lessen the circulation of literature critical of the government. The old seditious libel cases in England show the lengths to which government had to go to find out who was responsible for books that were obnoxious [362 U.S. 60, 65]   to the rulers. John Lilburne was whipped, pilloried and fined for refusing to answer questions designed to get evidence to convict him or someone else for the secret distribution of books in England. Two Puritan Ministers, John Penry and John Udal, were sentenced to death on charges that they were responsible for writing, printing or publishing books. 6 Before the Revolutionary War colonial patriots frequently had to conceal their authorship or distribution of literature that easily could have brought down on them prosecutions by English-controlled courts. Along about that time the Letters of Junius were written and the identity of their author is unknown to this day. 7 Even the Federalist Papers, written in favor of the adoption of our Constitution, were published under fictitious names. It is plain that anonymity has sometimes been assumed for the most constructive purposes.

          We have recently had occasion to hold in two cases that there are times and circumstances when States may not compel members of groups engaged in the dissemination of ideas to be publicly identified. Bates v. Little Rock, 361 U.S. 516 ; N. A. A. C. P. v. Alabama, 357 U.S. 449, 462 . The reason for those holdings was that identification and fear of reprisal might deter perfectly peaceful discussions of public matters of importance. This broad Los Angeles ordinance is subject to the same infirmity. We hold that it, like the Griffin, Georgia, ordinance, is void on its face. [362 U.S. 60, 66]  

          I am not currently Licensed to Practice in this State.

          by ben masel on Sat Jan 16, 2010 at 09:56:25 PM PST

          [ Parent ]

          •  But (1+ / 0-)
            Recommended by:
            ultraviolet uk

            They may have the right to speak anonymously, but they don't have the right to pass laws anonymously.

            The question is not whether the chickens needed replacing, the question is whether the fox should have been guarding them in the first place.

            by happymisanthropy on Sat Jan 16, 2010 at 11:19:34 PM PST

            [ Parent ]

            •  The Court will soon decide that question. (0+ / 0-)

              I posted in response to "Cite precisely which portion of the 1st Amendment guarantees any 'right to privacy' in political speech."

              I am not currently Licensed to Practice in this State.

              by ben masel on Sat Jan 16, 2010 at 11:22:45 PM PST

              [ Parent ]

              •  OK. (1+ / 0-)
                Recommended by:
                ultraviolet uk

                But these are official government documents.  Comparing them to anonymous pamphlets is a big stretch in my opinion.  The entire point of an initiative petition is that you are publicly signing your name to it -- if you change that, you've fundamentally changed the nature of the enterprise.

                In a functioning democracy, votes may be cast in private but are always counted in public, and members of the public are free to examine them.  Petitions should also be available to public scrutiny, otherwise we're taking the government at its word.

                The question is not whether the chickens needed replacing, the question is whether the fox should have been guarding them in the first place.

                by happymisanthropy on Sat Jan 16, 2010 at 11:50:27 PM PST

                [ Parent ]

                •  I understand the case correctly (0+ / 0-)

                  the proposal is to make the original petitions open to scrutiny, but not wholesale copying.

                  I am not currently Licensed to Practice in this State.

                  by ben masel on Sun Jan 17, 2010 at 12:06:27 AM PST

                  [ Parent ]

                  •  Well then. (0+ / 0-)

                    If the plaintiffs have admitted that they have no right to privacy, then this shouldn't be a supreme court case at all.  No rights are at issue.

                    The question is not whether the chickens needed replacing, the question is whether the fox should have been guarding them in the first place.

                    by happymisanthropy on Sun Jan 17, 2010 at 10:54:28 AM PST

                    [ Parent ]

                  •  but that would make no sense (0+ / 0-)

                    What exactly is the line to be drawn? Petitions can be read, but no notes can be taken?  Notes but only initials?  Names but not addresses?  Post on the internet but only allow queries?

                    Essentially, this case is about the tension between documents that have always been public, and new ways of publicizing documents that actually make them accessible to the public.

                    The solution is to address the harm that secrecy is supposed to address, i.e., prosecute harassment.

                    Furthermore, I would note (in response to other posts on this thread) that there is no right to a secret ballot.  Some New England towns still conduct their town meetings without them.

                    "Well, I'm sure I'd feel much worse if I weren't under such heavy sedation..."--David St. Hubbins

                    by Old Left Good Left on Sun Jan 17, 2010 at 04:35:07 PM PST

                    [ Parent ]

                    •  Harassment isn't always visible. (0+ / 0-)

                      in the case of a marijuana, or pro-Union initiative, i can see data aggregators selling the names to potential employers as part of a comprehensive dossier.

                      I am not currently Licensed to Practice in this State.

                      by ben masel on Sun Jan 17, 2010 at 06:34:12 PM PST

                      [ Parent ]

        •  Ahhhh conservative asshattery (0+ / 0-)

          The entire "privacy isn't in the Constitution" or any other strict constructionalist asshatery is the height of banality and in that it says Marbury v. Madison was wrongly decided and with it our entire foundation of law.  No wonder Republicans can flaunt the Rule of Law -- they do not believe such a constriction exists as it isn't specifically spelled out in the Constitution.

          Invoking that argument is the legal equivalent of Godwin's law, and the maker automatically loses the argument.

          A call for government to "simply" do something, simply means you don't get it.

          by DCJackass on Sun Jan 17, 2010 at 07:51:41 AM PST

          [ Parent ]

    •  I think I disagree with you. (7+ / 0-)

      People are allowed to blog anonymously, for example. Having said that I don't see how it's fair for the people who signed that petition with no expectations that it'd be kept sealed - I don't think it's fair for those same people to be outraged that this is public information. They knew it when they signed.

      "Everybody lies... except POLITICIANS? House, I do believe you are a romantic."

      by indiemcemopants on Sat Jan 16, 2010 at 06:24:26 PM PST

      [ Parent ]

      •  asdf (10+ / 0-)


        Blogging is not a state action. A petition to amend state law is a legal document

        Apples and oranges.

        I don't have "issues". I have a full subscription!

        by GayIthacan on Sat Jan 16, 2010 at 06:26:14 PM PST

        [ Parent ]

        •  Well you asked (3+ / 0-)
          Recommended by:
          musing85, Clarknt67, ultraviolet uk

          what first amendment right to privacy - I'm just saying that people are allowed to say things anonymously in private - even policy-related things.

          Like I said though, the petition shouldn't fall under that definition  because there was no expectation that it WOULD be private. It was publicly passed around and discussed.

          "Everybody lies... except POLITICIANS? House, I do believe you are a romantic."

          by indiemcemopants on Sat Jan 16, 2010 at 06:30:15 PM PST

          [ Parent ]

          •  asdf (4+ / 0-)


            Of course one can say things in private. But that isn;t the claim. :D

            There is no ;right to privacy' in ANYTHING contained in the Constitution except the right to protection from unreasonable searches and seizures of ones person or papers. And even there - reasonable searches and seizures offset any claimed 'right'.

            IN fact, the entire 'right to privacy' argument is what fueled the sodomy lows for decades - and permittted states to regulate sexual conduct in private bedrooms. The SCOTUS (until the recent decision) held that there WAS NO "right to privacy' - even in ones own home - that state interest passed through even the bedroom door.

            I don't have "issues". I have a full subscription!

            by GayIthacan on Sat Jan 16, 2010 at 06:34:31 PM PST

            [ Parent ]

            •  That's not technically true... (1+ / 0-)
              Recommended by:

              It's not just the implications of the fourth amendment. It's also the third amendment about not quartering troops in citizens' private homes, the fourth, the fifth protects you against incriminating yourself in a crime... those, along with the ninth and the fourteenth were used to overturn bans on birth control in married relationships, and later sodomy even between UNMARRIED people.

              "Everybody lies... except POLITICIANS? House, I do believe you are a romantic."

              by indiemcemopants on Sat Jan 16, 2010 at 08:02:38 PM PST

              [ Parent ]

          •  When you sign a petition (8+ / 0-)

            You can usually see the signatures, names and addresses of the people who signed it before you. That does speak to the existing expectation of privacy. There does seem to be no effort made to safeguard privacy during the collection process.  

            •  And in fact people (5+ / 0-)

              pass around petitions to friends with common interests, or people in their community with common interests. It's likely that people in a community would all be aware of the others who signed on. Back in 2004 my mom and her annoying friends were practically sharing their support of Bush for president like it was a membership in some club.

              There's a good chance that people in certain communities are well aware and probably intensely proud of that petition and the fact that they and their friends signed it.

              So I'm not buying that it shouldn't be public.

              "Everybody lies... except POLITICIANS? House, I do believe you are a romantic."

              by indiemcemopants on Sat Jan 16, 2010 at 08:21:13 PM PST

              [ Parent ]

              •  not to mention... (3+ / 0-)
                Recommended by:
                homogenius, indiemcemopants, sfbob

                ...passing petitions around at non-political meetings (pta, home owners association meetings, etc.)...the influence of public circulation can't be underestimated:

                "well, marge signed the petition, aren't you gonna sign it, too???"

                peer pressure: it's not just for kids.

                "A time comes when silence is betrayal." ~ MLK, Jr...Where has CANDIDATE Obama gone?

                by liberaldemdave on Sat Jan 16, 2010 at 09:11:01 PM PST

                [ Parent ]

    •  Gay Ithican, "privacy" evolved as a right... (0+ / 0-)

      and mostly after 1940's.  This Norman Rockwell painting, on the 4 Freedoms, speaks to that.

      •  asdf (4+ / 0-)

        That has nothing to do with the issue. Paintings are not state legislative actions/documents - which must be 'public'.

        Every state requires that petitions be available for public inspection.

        And - again - still waiting for a First Amendment citation regarding 'private political speech'. There is none.

        I don't have "issues". I have a full subscription!

        by GayIthacan on Sat Jan 16, 2010 at 06:31:34 PM PST

        [ Parent ]

        •  First amendment right to anonymity (3+ / 0-)
          Recommended by:
          alizard, sfbob, ultraviolet uk

          This is probably what you're thinking of:McIntyre v. Ohio Elections Commission.

          I agree that there is a right to speak anonymously.  But I do not think there is a right to legislate anonymously.  When you sign a petition, you are a sponsor of legislation, and it's the same thing as a congressperson, state representative, or other official sponsoring a bill.  You are acting as a citizen lawmaker attempting to get your question on the ballot.  

          In my view, there is no federal constraint on a state choosing to make that information public.

          -6.38 -5.33 "It is better to die on your feet than to live on your knees." - Emiliano Zapata

          by electionlawyer on Sat Jan 16, 2010 at 09:19:50 PM PST

          [ Parent ]

          •  electionlawyer, (0+ / 0-)


            I follow it for cases regarding the sexualization of children and the constitutional rights of the sexual predator.

            The New York Times will soon begin charing for its online content.  Here's a link that's currently available free of charge.   I voted for Obama.  I was for Hillary.   I could not bring myself to vote for McCain because of personal reasons.

            "Obama's vote in IL Senate often was just "present".

    •  It isn't in the First (0+ / 0-)

      It's in the Fourth and Fifth, or at least it "emanates" from those amendments. And a bit from the First, which guarantees us the right to free association for peaceful purposes.

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