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Privacy Trumps Transparency in Tenth Circuit

Case and Court:

Sampson v. Buescher, No. 08-1389 (10th Cir. 2010).

In my Cyberlaw course, we discuss both the first amendment rights of anonymous speakers online as well as the menace of spam (typically sent by an anonymous speaker). In some contexts, a right to speak anonymously looks like an important democracy-supporting tool. In other contexts it looks like an unwarranted cover for all manner of mischief.

In the context of political campaign contributions, states have tended towards transparency, particularly when one considers the possibility that anonymous contributions to political candidates could have a corrupting influence and would essentially eviscerate any spending limits.

Today, in Sampson v. Buescher, the Tenth Circuit asked whether transparency regarding contributions to ballot measures was as important as transparency about contributions to candidates and decided that it was not.

This issue has caused angst before when someone created a mashup of donors to California’s Proposition 8 (against gay marriage) with Google Maps and created Prop 8 Maps. Is this government transparency or a witch hunt?

The Sampson case presented perhaps the perfect plaintiffs for those who favor anonymous contributions to ballot measures, as the small band of residents spent a paltry sum to fight the annexation of their neighborhood.

The Court held that,

Colorado law, as applied to Plaintiffs, has violated their constitutional freedom of association. There is virtually no proper governmental interest in imposing disclosure requirements on ballot-initiative committees that raise and expend so little money, and that limited interest cannot justify the burden that those requirements impose on such a committee.

And perhaps that strikes the right balance for this small group. But when I reflect on the deceptive campaign waged by Pacific Gas & Electric in the June 2010 California election regarding Prop 16, which would have required a 2/3 vote of the electorate before a public agency could enter the retail power business (and hence compete with PG&E!), I know that sometimes information about a ballot measure’s supporters is the key piece of information a voter needs to make an informed decision.

The Tenth Circuit may not have missed this point either, as they also wrote,

The case before us is quite unlike ones involving the expenditure of tens of millions of dollars on ballot issues presenting “complex policy proposals.” Cal. Pro-Life Council, Inc. v. Getman, 328 F.3d 1088, 1105 (9th Cir. 2003). We say only that Plaintiffs’ contributions and expenditures are well below the line.

If this decision is limited to small groups of neighbors spending less than $1,000, then it’s a good win for freedom of association, without necessarily being a corresponding loss for proponents of government transparency. Continuing to strike the right balance between these laudable aims, both online and off, remains the challenge.

See also:

Categories: Online Anonymous Speech, Online Privacy.

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