01 May 2010

Scalia?

free speech is not a secret

I like my anonymity. But if I were going to agitate for a political cause, say by volunteering, signing a petition, and so on, I would expect that these would be facts that could be used against me in arguments by people who might oppose these more visible forms of free speech exercise. Since I tend to like having a bit of argument once in a while, my advice would be if you want to be a private person, don't become a matter of public record. If you are willing to argue over something, you should be willing to put up with the most aggressive and strong forms of arguments against your own. Now you don't have to put up with aggressive harassment with no purpose, we have some laws protecting against that. But if people want to ask you why you took a particular stance on a particular position, you could either respond and hope that silences them or stay mum and let them continue bothering you for a response. You don't or at least shouldn't get to make yourself invisible right after making yourself part of a public movement like the introduction of state laws through referendum mechanisms. Your vote should remain silent and secret, as a matter of modern efforts to do so. But your voice, in trying to make public statements, cannot exactly be erased from the record.

My own position on that is very much like the brief the lawyer filed. There may be people who were not supportive of the actual law itself, but might be willing to leave that up to the public to decide through the ballot later on, perhaps confident that the measure would be defeated to send a signal that it was a dumb idea. I would not feel this way, largely because I have a pretty strong 14th amendment view that if the state is going to grant rights and privileges, then they should be the same for anyone who may apply for them without malicious prejudice. A law overturning the granting of basic rights of contract for civil union purposes (setting the default public contracts rather than requiring people to go fulfill these privately) doesn't seem to me to be something respectable enough to let people vote on. But as I'm out in a fairly thin legal branch on this point, I imagine there are indeed some people who would sign a petition but ultimately vote against the law it proposes.

Occasionally there's good reason to be annoyed with the Supremes, but on this point, it was rather funny. "Wouldn't it be legitimate public interest to say, I would like to know who signed the petition....". Technically you don't even have to finish that statement. It should be a legitimate public interest to know who signed a petition for a ballot initiative. Then there's this: "...because I would like to try to persuade them that their views should be modified? Is there public interest in encouraging debate on the underlying issue?" - How would it be strange that we should have to discuss a vote before it happens with people of different opinions? It is indeed true that on this and a great many other topics, people's opinions are rigid and fixed. Such debates may not persuade the extremes of people, ie the people agitated enough to sign a petition calling for the overturn of a law in this case. But they might persuade people who are undecided, who have mixed feelings or emotions, or who are apathetic about an issue, to make up their minds or to become more passionately involved in the political decisions of their state/local governments. These seem like sensible advantages.

The second page of scathing legal arguments is also quite amusing. The state prosecutor advanced an argument calling for more or less complete disclosure rather than a simple name or at best name and address/phone numbers for verification purposes.

I can imagine that there are scenarios where this is a troubling dynamic. Unpopular and/or offensive arguments can often drive up sentiments of rage or aggression among some. In an atmosphere of relative polarization, it is easier to find arguments that will be offensive to someone, perhaps enough to mobilize angry and hostile action against the people who advance these offensive notions. In these instances, it is the responsibility of the state, and the society or its factions involved, to secure peaceful debate and to avoid aggressive stances and threats. But simply having one's position, however deeply held and felt, threatened by the counter-arguments or resistance of others, does not strike me as a crucial protection of free speech. Indeed, it ought to be one of the hallmarks of it that arguments which may be perceived as bad arguments in their turn must be advanced publicly and thus find themselves struck down as flawed or emerge tempered and strengthened. If these voters were so afraid for their lives, that is one thing. That strikes me as a legal problem distinct from the publicity that their positions take. But if they are shamed and feel "threatened" (without the actual physical threat and/or act of violence) perhaps we might see some more constructive arguments for or against their positions being made in the future.

(incidentally, I agree with a podcast I heard on this point over the weekend. That it might have been better, or at least more interesting, to see a left-ish/liberal/progressive position being argued here. Say, abortion rights ballot initiatives if there are any. I'm sure there are violent acts and threats made by left-wing advocates. But I'm not sure that any such movements have had their own loons who killed anyone lately for doing or thinking something different as in the case of the George Tiller murder last year. I don't see pro-choice or pro-gay advocates seeking the same levels of privacy).
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