A new right discovered in the folds of the constitution
There is no constitutional right to not be duped. In fact, there is a constitutional right to dupe others. It is in the First Amendment.
The courts have gotten it right sometimes and erred sometimes.
On Wednesday Carson City District Judge James E. Wilson Jr. prohibited a Virginia group calling itself Alliance for America’s future from running advertising in Nevada until it registers with the Secretary of State. He erred.
“Nevadans have a right to know who is behind election advertising,” the judge writes. “Continued violation of the statutes and depriving Nevadans of information about who is behind its election advertising will cause irreparable harm as voting will be influenced by unknown persons and voters will not have, through the proper channel, i.e., the Secretary (of State) information they need to determine what weight to give the advertising. Compensatory relief cannot compensate for this type of harm.”
Where is such a “right to know” enumerated in either the state or U.S. constitutions? Voters are perfectly capable of weighing messages based on whether the source is credible and deeming unknown sources accordingly.
At the first of his ruling, Wilson cites the U.S. Supreme Court ruling Buckley v. Valeo, which upheld limits on candidate spending and contributions and requiring disclosure. That ruling noted that Congress may establish the qualifications for elective office, which may include disclosure of finances. But the court tossed restrictions on independent groups and on the amounts candidates could spend of their own money.
Since then the court has let stand various disclosure requirements for independent groups, despite arguments that revealing donors will chill free speech, an argument the Alliance lawyers made.
In a strong dissent in Citizens United v. FEC, the case that got rid of much of the limits imposed by McCain-Feingold, Justice Clarence Thomas exposed the illogical nature of the court’s half measure when it comes to free speech by non-candidates and their right to do so anonymously.
“Irony aside, the Court’s promise that as-applied challenges will adequately protect speech is a hollow assurance,” Thomas writes. “Now more than ever, (the law) will chill protected speech because — as California voters can attest — ‘the advent of the Internet’ enables ‘prompt disclosure of expenditures,’ which ‘provide[s]’ political opponents ‘with the information needed’ to intimidate and retaliate against their foes. … Thus, ‘disclosure permits citizens … to react to the speech of [their political opponents] in a proper’ — or undeniably improper — ‘way’ long before a plaintiff could prevail on an as-applied challenge. …
“I cannot endorse a view of the First Amendment that subjects citizens of this Nation to death threats, ruined careers, damaged or defaced property, or pre-emptive and threatening warning letters as the price for engaging in ‘core political speech, the “primary object of First Amendment protection.”’ … Accordingly, I respectfully dissent …”
