Publius and the petition: Doe v. Reed and the history of anonymous speech

Yale Law Journal

Volumn 120, Issue 8, 2011, Pages 2140-2181

  Boudin, Chesa ^a  

^a YALE UNIVERSITY   (United States)

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EID: 79957495155     PISSN: 00440094     EISSN: None     Source Type: Journal    
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References (321)

1. See Kathleen Ferraiolo, Preserving the Initiative: State Legislative Response to Direct Democracy, 39 Polity 425, 426 (2007). See generally Philip L. Dubois & Floyd Feeney, Lawmaking by Initiative: Issues, Options and Comparisons (1998) (analyzing initiative lawmaking across the country).
2. See generally Philip L. Dubois & Floyd Feeney, Lawmaking by Initiative: Issues, Options and Comparisons (1998) (analyzing initiative lawmaking across the country).
3. John G. Matsusaka, For the Many or the Few: The Initiative, Public Policy, and American Democracy (2004) (describing the growing prominence of direct democracy).
4. See State I&R, Initiative & Referendum Inst., http://www.iandrinstitute.org/statewide_i&r.htm (last visited Feb. 23, 2011) (listing all of the states and providing information about the type of direct democracy allowed in each state and the dates of adoption).
5. see also Julian N. Eule, Judicial Review of Direct Democracy, 99 Yale L.J. 1503, 1587-88 (1990).
6. States That Allow for the Ballot Initiative Process, Ballot Initiative Strategy Ctr., http://www.ballot.org/page/-/ballot.org/maps/Initiative%20states.pdf (last visited Feb. 23, 2011) (providing a map of states with popular legislative initiative options by category).
7. See Erwin Chemerinsky, Challenging Direct Democracy, 2007 Mich. St. L. Rev. 293, 299.
8. See, e.g., William Yardley, Oregon: Voters Approve Tax Increases, N.Y. Times, Jan. 27, 2010, at A16.
9. See Jesse McKinley & Laurie Goodstein, Bans in 3 States on Gay Marriage, N.Y. Times, Nov. 6, 2008, at A1.
10. See Ethan Bronner, U. of Washington Will End Race-Conscious Admissions, N.Y. Times, Nov. 7, 1998, at A12.
11. See Marc Lacey, California Rejects Marijuana Legalization as Nation Votes on Issues Big and Small, N.Y. Times, Nov. 3, 2010, at P8.
12. See The Federalist No. 10 (James Madison) (discussing the virtues of representative democracy).
13. Kevin R. Johnson, A Handicapped, Not "Sleeping, " Giant: The Devastating Impact of the Initiative Process on Latina/o and Immigrant Communities, 96 Calif. L. Rev. 1259, 1260 (2008).
14. see also Thomas E. Cronin, Direct Democracy: The Politics of Initiative, Referendum, and Recall 44-45 (1989).
15. Paula Abrams, The Majority Will: A Case Study of Misinformation, Manipulation, and the Oregon Initiative Process, 87 Or. L. Rev. 1025, 1025-26 (2008).
16. Wash. Const. art. II, § 1. Ballot initiatives have an obvious populist appeal but have been criticized for undermining protections for minority groups. See, e.g., Richard B. Collins, How Democratic Are Initiatives?, 72 U. Colo. L. Rev. 983, 994 (2001).
17. Kevin R. Johnson, A Handicapped, Not "Sleeping, " Giant: The Devastating Impact of the Initiative Process on Latina/o and Immigrant Communities, 96 Calif. L. Rev. (2008) at 1260-61.
18. John G. Matsusaka, For the Many or the Few: The Initiative, Public Policy, and American Democracy (2004) at 113-14 (arguing that direct democracy does in fact benefit majority interests). Ballot initiatives may also oversimplify complex, nuanced policy questions by providing artificial binary choices. They have thus been attacked on populist grounds for capturing a polity's preferences at a given time without considering the polity's long-term interests.
19. See Sherman J. Clark, A Populist Critique of Direct Democracy, 112 Harv. L. Rev. 434, 448-52 (1998).
20. David B. Magleby, Let the Voters Decide? An Assessment of the Initiative and Referendum Process, 66 U. Colo. L. Rev. 13, 24 (1995) (highlighting the role of money and capital interests in shaping direct democracy outcomes). The constitutionality of referenda and initiatives has been questioned as well.
21. Erwin Chemerinsky, Challenging Direct Democracy, 2007 Mich. St. L. Rev. at 301-06 (arguing that initiatives are unconstitutional). Rather than engaging the existing scholarly criticism of direct democracy in theory, this Note focuses on the tension in practice between protecting direct democracy as speech and regulating it as lawmaking.
22. See, e.g., U.S. Const. art. I, § 4 ("The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of Chusing Senators. ").
23. See, e.g., Wash. Rev. Code Ann. § 29A.72.100 (West 2005) (requiring that petitions be printed in a particular format with space for not more than twenty signatures per page).
24. 130 S. Ct. 2811 (2010) § 29A.72.130 (requiring each signatory to "print his or her name, and the address, city, and county at which he or she is registered to vote").
25. For the purposes of this Note, "lawmaking process" means a formal, official part of the lawmaking procedure that is subject to state or local regulation. For more on why this argument does not apply to voting, 130 S. Ct. 2811 (2010) Section IV.A.
26. 130 S. Ct. 2811 (2010).
27. See Doe v. Reed, 586 F.3d 671, 674-75 (9th Cir. 2009), aff'd 130 S. Ct. 2811.
28. Richard Roesler, Gregoire Endorses Rights for Same-Sex Partnerships, Spokesman-Rev. (Spokane, Wash.), May 19, 2009, at A1.
29. Reed, 130 S. Ct. 1133.
30. See Reed, 586 F.3d at 675.
31. See Linda Greenhouse, Into the Closet, Opinionator (Jan. 14, 2010, 9:34 PM), http://opinionator.blogs.nytimes.com/2010/01/14/into-the-closet.
32. Wash. Rev. Code Ann. § 29A.72.150 (West 2005).
33. Reed, 586 F.3d § 29A.72.130.
34. See Reed, 586 F.3d at 675.
35. see also Wash. Rev. Code Ann. §§ 42.56.001-.904 (West 2005). The Washington Public Records Act is "itself the product of the public initiative process. ".
36. Linda Greenhouse, Into the Closet, Opinionator (Jan. 14, 2010, 9:34 PM), http://opinionator.blogs.nytimes.com/2010/01/14/into-the-closet.
37. See, e.g., Nicole Fuller, Cordish Attacks Anti-Slots Petitions: Elections Board Failed To Check for Fraud, Other Irregularities, Lawsuit Says, Balt. Sun, Feb. 24, 2010, at 2A (describing a fraud investigation into a direct democracy petition drive that was initiated after nongovernmental groups accessed the petitions).
38. Ballot Initiative Strategy Ctr., Abusing Direct Democracy: Bad Actors in the Signature Gathering Process (2007), http://bisc.3cdn.net/fb3cd964499ff383ed_bwm6i2dud.pdf (detailing numerous counts of fraud in direct democracy proceedings).
39. Reed, 586 F.3d at 675-76. However, the only evidence presented was hostile language directed toward individuals gathering signatures on the petitions, not the signers themselves whose anonymity was in question.
40. See Brief for Respondent Washington Families Standing Together at 36-38, Doe v. Reed, 130 S. Ct. 2811 (2010) (No. 09-559) (directly rebutting the argument about threats of retaliation).
41. For a discussion of case law on protection for vulnerable groups, Reed, 586 F.3d at 681 Section III.A.
42. Reed, 586 F.3d at 681.
43. Petition for Writ of Certiorari, Reed, 130 S. Ct. 2811 (No. 09-559).
44. Reed, 130 S. Ct. at 2816-17.
45. See McIntyre v. Ohio Elections Comm'n, 514 U.S. 334 (1995).
46. See Citizens United v. FEC, 130 S. Ct. 876, 886 (2010) ("The Government may regulate corporate political speech through disclaimer and disclosure requirements.... ").
47. Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam) (upholding portions of the Federal Elections Campaign Act mandating disclosure of campaign contributors).
48. See Richard M. Cardillo, Note, I Am Publius, and I Approve This Message: The Baffling and Conflicted State of Anonymous Pamphleteering Post-McConnell, 80 Notre Dame L. Rev. 1929 (2005) (explaining the tension in doctrine between defending anonymous speech and upholding election transparency laws).
49. Reed, 130 S. Ct. 2811.
50. Only Justice Stevens argued that the impact of disclosure on speech would be minimal. Republican Party of Minn. v. White, 536 U.S. (2002). at 2829-30 (Stevens, J., concurring in part and concurring in the judgment).
51. Republican Party of Minn. v. White, 536 U.S. (2002). at 2817 (majority opinion).
52. Republican Party of Minn. v. White, 536 U.S. 765, 788 (2002). ("The State, having 'cho[sen] to tap the energy and the legitimizing power of the democratic process,... must accord the participants in that process the First Amendment rights that attach to their roles.'" (first alteration in original).
53. Quoting Republican Party of Minn. v. White, 536 U.S. 765, 788 (2002). White involved a First Amendment challenge to a Minnesota Supreme Court canon of judicial conduct that prohibited candidates for judicial election from announcing their views on disputed political or legal issues.
54. White, 536 U.S. at 768.
55. Reed, 130 S. Ct. at 2818.
56. Buckley v. Valeo, 424 U.S.
57. Citing Burdick v. Takushi, 504 U.S. 428, 433-34 (1992).
58. Only Justice Scalia (concurring in the judgment) and Justice Thomas (dissenting) relied on reasoning that was not fact-bound. Justice Scalia "doubt[ed]" that the disclosure statute is subject to First Amendment analysis at all and argued that the states should have wide latitude to determine their own legislative processes. Buckley v. Valeo, 424 U.S. at 2832 (Scalia, J., concurring in the judgment). Justice Thomas, on the other hand, was not persuaded that the state's interest in disclosure was compelling and suggested that he would strike down the disclosure statute as impermissibly burdening speech and as lacking any compelling government interest or narrow tailoring.
59. Buckley v. Valeo, 424 U.S. at 2837 (Thomas, J., dissenting).
60. Buckley v. Valeo, 424 U.S. at 2815 (majority opinion).
61. Buckley v. Valeo, 424 U.S. at 2822 (Alito, J., concurring).
62. Quoting Buckley v. Valeo, 424 U.S. 1, 74 (1976) (per curiam).
63. Rick Pildes, The First Amendment, Direct Democracy, and the Risks of Technology: Today's Court Decision in Doe v. Reed, Balkinization (June 24, 2010, 11:09 AM), http://balkin.blogspot.com/2010/06/first-amendment-direct-democracy-and.html at 2823-24.
64. Rick Pildes, The First Amendment, Direct Democracy, and the Risks of Technology: Today's Court Decision in Doe v. Reed, Balkinization (June 24, 2010, 11:09 AM), http://balkin.blogspot.com/2010/06/first-amendment-direct-democracy-and.html at 2827-29 (Sotomayor, J., concurring).
65. Rick Pildes, The First Amendment, Direct Democracy, and the Risks of Technology: Today's Court Decision in Doe v. Reed, Balkinization (June 24, 2010, 11:09 AM), http://balkin.blogspot.com/2010/06/first-amendment-direct-democracy-and.html at 2829.
66. But cf. Rick Pildes, The First Amendment, Direct Democracy, and the Risks of Technology: Today's Court Decision in Doe v. Reed, Balkinization (June 24, 2010, 11:09 AM), http://balkin.blogspot.com/2010/06/first-amendment-direct-democracy-and.html ("The Court then wisely leaves it to lower courts and future cases to decide whether, in any particular context, there is just a high risk of retaliation, harassment and the like to override the state's legitimate interest in disclosure in particular contexts.").
67. See Jed Rubenfeld, Reading the Constitution as Spoken, 104 Yale L.J. 1119, 1124-25 (1995) (describing freedom of speech as part of political thought and process).
68. Even the Court's stalwart originalist Justices Scalia and Thomas have differed with regard to the breadth of protection afforded to anonymous speech. Compare McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 359 (1995) (Thomas, J., concurring in the judgment) (finding that "'freedom of speech, or of the press,' as originally understood, protected anonymous political leafletting").
69. Ollman v. Evans, 750 F.2d (D.C. Cir. 1984) at 381 (Scalia, J., dissenting) (criticizing "this newly expanded right-to-speak-incognito").
70. See Ollman v. Evans, 750 F.2d 970, 995 (D.C. Cir. 1984) (Bork, J., concurring) ("[M]ost doctrine is merely the judge-made superstructure that implements basic constitutional principles.... Judges given stewardship of a constitutional provision-such as the first amendment-whose core is known but whose outer reach and contours are ill-defined, face the never-ending task of discerning the meaning of the provision from one case to the next. ").
71. David A. Strauss, The Ubiquity of Prophylactic Rules, 55 U. Chi. L. Rev. 190, 198 (1988).
72. Richard Nagareda, Comment, The Appellate Jurisprudence of Justice Antonin Scalia, 54 U. Chi. L. Rev. 705, 731 (1987).
73. See, e.g., Daniel A. Farber, The First Amendment 8-10 (3d ed. 2010) (noting that historical evidence regarding the intended meaning of the First Amendment is "ambiguous" and "unclear").
74. Ronald Dworkin, Comment, in Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law 115, 124 (Amy Gutmann ed., 1997) (suggesting that the First Amendment's meaning was more contested at the time of its enactment than it is in modern America).
75. Geoffrey R. Stone, Sex, Violence, and the First Amendment, 74 U. Chi. L. Rev. 1857, 1863 n.38 (2007) (noting that original intent does not control First Amendment doctrine).
76. cf. Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 Ind. L.J. 1, 20-35 (1971) (arguing that the original meaning of the Constitution would strip all but nondangerous, explicitly political speech of First Amendment protection).
77. The national tradition of anonymous speech has roots that can be traced back to England. For a history of anonymous speech and pamphlets in England, see Jennifer B. Wieland, Note, Death of Publius: Toward a World Without Anonymous Speech, 17 J.L. & Pol. 589, 591 (2001).
78. See also Note, The Constitutional Right to Anonymity: Free Speech, Disclosure and the Devil, 70 Yale L.J. 1084, 1084-86 (1961) [hereinafter Disclosure and the Devil] (arguing that governmental efforts to repress anonymous speech notwithstanding, England was home to a vibrant culture of anonymous or pseudonymous political discourse).
79. See Jonathan Turley, Registering Publius: The Supreme Court and the Right to Anonymity, 2001-2002 Cato Sup. Ct. Rev. 57, 59-60 (2002).
80. 1-2 John Trenchard & Thomas Gordon, Cato's Letters: Or, Essays on Liberty, Civil and Religious, and Other Important Subjects (Ronald Hamowy ed., Liberty Fund 1995) (6th ed. 1755).
81. See The Encyclopedia of Colonial and Revolutionary America 220 (John Mack Faragher ed., 1996).
82. See Thomas Paine, Common Sense (1776), reprinted in Thomas Paine: Common Sense and Other Writings 5 (Gordon S. Wood ed., 2003).
83. see also 1 George Otto Trevelyan, The American Revolution pt. 2, at 150-54 (1903) (describing the influence of the pamphlet in colonial America).
84. Steve D. Shadowen, Sozi P. Tulante & Shara L. Alpern, No Distinctions Except Those Which Merit Originates: The Unlawfulness of Legacy Preferences in Public and Private Universities, 49 Santa Clara L. Rev. 51, 65 (2009) (characterizing Paine's pamphlet as "enormously influential").
85. Lovell v. City of Griffin, 303 U.S. 444, 452 (1938). Nevertheless, the Court tends to decide disclosure cases based on more general First Amendment grounds rather than on an explicit recognition of a right to anonymous speech.
86. The Complete Madison: His Basic Writings (Saul K. Padover ed., 1953).
87. The Complete Madison: His Basic Writings (Saul K. Padover ed., 1953) Part III.
88. Note that anonymous participation need not preclude the opposite-namely, that individuals may have chosen to communicate only some of their ideas anonymously. Concurrent disclosure of identity for some communications and anonymity for others is entirely plausible. For example, James Madison anonymously authored some of the Federalist papers even as he personally and publicly spoke out in support of ratification. See, e.g., The Complete Madison: His Basic Writings (Saul K. Padover ed., 1953) (including material to which Madison attached his name at the time of publication).
89. See Bradford R. Clark, The Eleventh Amendment and the Nature of the Union, 123 Harv. L. Rev. 1817, 1853-54 (2010). Drawing on the history of the Federalist papers, Justice Black defended anonymous speech and recognized "that anonymity has sometimes been assumed for the most constructive purposes".
90. Talley v. California, 362 U.S. 60, 65 (1960).
91. McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 360 (1995) (Thomas, J., concurring in the judgment). Justice Thomas's concurring opinion provides an exhaustive history of anonymous speech, pseudonymous speech, and publishing in early American history.
92. Akhil Reed Amar, America's Constitution: A Biography (2005) at 361-69.
93. Akhil Reed Amar, America's Constitution: A Biography (2005) at 341 & n.4 (majority opinion) (stating that "[g]reat works of literature have frequently been produced by authors writing under assumed names" and listing examples such as Mark Twain, Voltaire, George Eliot, Charles Lamb, and Charles Dickens).
94. Akhil Reed Amar, America's Constitution: A Biography (2005) at 367 (Thomas, J., concurring in the judgment).
95. Akhil Reed Amar, America's Constitution: A Biography (2005). at 368.
96. Akhil Reed Amar, America's Constitution: A Biography 14-15, 308-12 (2005). ("The practice of publishing one's thoughts anonymously or under pseudonym was so widespread that only two major Federalist or Anti-Federalist pieces appear to have been signed by their true authors, and they may have had special reasons to do so. ").
97. See Akhil Reed Amar, America's Constitution: A Biography 14-15, 308-12 (2005) (discussing the ratification process, state conventions, and Article VII of the Constitution and describing "elected statewide conventions").
98. U.S. Const. art. VII ("The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same. ").
99. Akhil Reed Amar, America's Constitution: A Biography 14-15, 308-12 (2005) at 6-7 (discussing the ratification process and conventions).
100. See, e.g., Douglass Adair, Fame and the Founding Fathers 386 (Trevor Colbourn ed., Liberty Fund 1998) (1974) ("Almost all books, pamphlets, squibs, letters to the editor on controversial issues-which naturally meant most political issues-were either unsigned or signed with a pen name. ").
101. See Alexander Hamilton, Pacificus No. 1, Gazette U.S. (Phila.), June 29, 1793, reprinted in 15 The Papers of Alexander Hamilton 33 (Harold C. Syrett & Jacob E. Cooke eds., 1969).
102. James Madison, Helvidius Number 1, Gazette U.S. (Phila.), Aug. 24, 1793, reprinted in 15 The Papers of James Madison 66 (Thomas A. Mason, Robert A. Rutland & Jeanne K. Sisson eds., 1985).
103. Note, The Constitutional Right to Anonymity: Free Speech, Disclosure and the Devil, 70 Yale L.J. (1961) at 1085.
104. See 4 Albert J. Beveridge, The Life of John Marshall 318 (photo. reprint 1980) (1919).
105. Richard M. Cardillo, Note, I Am Publius, and I Approve This Message: The Baffling and Conflicted State of Anonymous Pamphleteering Post-McConnell, 80 Notre Dame L. Rev. (2005) at 1951-55. There may also have been class-based reasons for the common use of pseudonyms. Adair suggests that "[a] gentleman lost caste if he wrote professionally in competition with mere scribblers.
106. and conversely, a lower-class professional writer concealed behind a nom de plume could gain authority by writing as if he were a gentleman. " Douglass Adair, Fame and the Founding Fathers (Trevor Colbourn ed., Liberty Fund 1998) (1974) at 386 n.1.
107. Douglass Adair, Fame and the Founding Fathers (Trevor Colbourn ed., Liberty Fund 1998) (1974) at 386 n.1.
108. Lest the history presented appear overwhelmingly one-sided, it is worth mentioning briefly the parallel history of legal efforts to compel disclosure in the context of speech. The Post Office Appropriation Act of 1912 required users of second-class mailing privileges periodically to file and publish the names of their officers and proprietors. Post Office Appropriation Act of 1912, ch. 389, § 2, 37 Stat. 553 (codified as amended at 39 U.S.C. § 3685 (2006).
109. see also Lewis Publ'g Co. v. Morgan, 229 U.S. 288 (1913) (construing and validating the statute). And some states have tried to compel organizations to disclose the names of their members.
110. See, e.g., Bates v. City of Little Rock, 361 U.S. 516 (1960) (challenging municipal ordinances requiring disclosure of membership lists).
111. NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958) (overruling an order requiring the NAACP to produce membership records, including names and addresses).
112. New York ex rel. Bryant v. Zimmerman, 278 U.S. 63 (1928) (upholding a state statute requiring certain associations to file membership lists).
113. Louisiana ex rel. Gremillion v. NAACP, 181 F. Supp. 37 (E.D. La. 1960) (invalidating a statute requiring disclosure of an organization's membership lists), aff'd, 366 U.S. 293 (1961). Other organizations have been required to register prior to obtaining licenses to use public spaces for speech and association. See, e.g., Poulos v. New Hampshire, 345 U.S. 395 (1953) (upholding a statute requiring an application for a license prior to conducting open-air meetings).
114. Cox v. New Hampshire, 312 U.S. 569 (1941) (affirming a conviction for parading on a public street without a required license). In the buildup to World War II Congress enacted statutes compelling disclosure by foreign agents. Foreign Agents Registration Act of 1938, ch. 327, 52 Stat. 631 (codified as amended at 22 U.S.C. §§ 611-21 (2006). Although the Supreme Court limited the application of the disclosure requirements, in dissent Justice Black relied on the House and Senate committee reports to urge that the law be interpreted so as "to turn 'the spotlight of pitiless publicity' upon the propaganda activities" in question.
115. Viereck v. United States, 318 U.S. 236, 250 (1943) (Black, J., dissenting) (citing S. Rep. No. 75-1783 (1938).
116. H.R. Rep. No. 75-1381 (1938).
117. Transcript of Oral Argument at 12, Doe v. Reed, 130 S. Ct. 2811 (2010) (No. 09-559).
118. The parchment copy of the Declaration of Independence now on display at the National Archives contains all of the original signatures. See Carl Lotus Becker, The Declaration of Independence: A Study in the History of Political Ideas 192-93 (photo. reprint 1956) (1942).
119. Akhil Reed Amar, America's Constitution: A Biography 14-15, 308-12 (2005) at 207-08 (describing the prominent, public roles several of the signers of the Constitution played in colonial and early republican life).
120. Edward C. Walterscheid, To Promote the Progress of Science and Useful Arts: The Background and Origin of the Intellectual Property Clause of the United States Constitution, 2 J. Intell. Prop. L. 1, 30 (1994) ("More than half of the fifty-five delegates had training in the law. Eight of them had signed the Declaration of Independence and two the Articles of Confederation. Some forty had served in the Congress under the Confederation and seven in the First Continental Congress. A number had been involved in the formation of their state constitutions, and seven had served as the chief executives of their states. Indeed, at the time of the convention, more than forty delegates were involved with their state government either as chief executive, judge, or legislator. " (citations omitted).
121. Akhil Reed Amar, America's Constitution: A Biography (2005) at 80.
122. Max Farrand, The Framing of the Constitution of the United States 38-39 (1913).
123. Only Rhode Island boycotted the Convention. Akhil Reed Amar, America's Constitution: A Biography 14-15, 308-12 (2005) at 5.
124. Vasan Kesavan & Michael Stokes Paulsen, The Interpretive Force of the Constitution's Secret Drafting History, 91 Geo. L.J. 1113, 1115 (2003).
125. See 1 The Records of the Federal Convention of 1787, at 15 & n.2 (Max Farrand ed., 1966) (rev. ed. 1937).
126. Letter from George Mason to George Mason, Jr. (May 27, 1787), in 3 The Records of the Federal Convention of 1787 at 28 & n.2 (Max Farrand ed., 1966) (rev. ed. 1937).
127. See, e.g., Letter from Alexander Martin to Governor Caswell (July 27, 1787), in 3 The Records of the Federal Convention of 1787, at 64 & n.2 (Max Farrand ed., 1966) (rev. ed. 1937) (explaining why Martin had been "remiss in making... Communications from the Federal Convention").
128. See, e.g., John K. Alexander, The Selling of the Constitutional Convention: A History of News Coverage 137 (1990) (suggesting that the proceedings of the Convention were not fully secret because of leaks).
129. Journal, Acts, and Proceedings of the Convention, Assembled at Philadelphia, Monday, May 14, and Dissolved Monday, September 17, 1787, Which Formed the Constitution of the United States (Boston, Thomas B. Wait 1819), available at http://ia700408.us.archive.org/12/items/journalactsproce1819unit/journalactsproce1819unit.pdf.
130. Act of Mar. 27, 1818, 3 Stat. 475.
131. See, e.g., Bruce A. Ackerman, The Storrs Lectures: Discovering the Constitution, 93 Yale L.J. 1013, 1059 n.80 (1984) ("[C]onstitutional interpreters should place very little weight on the secret notes that Madison compiled during the Constitutional Convention.... ").
132. Akhil Reed Amar, Our Forgotten Constitution: A Bicentennial Comment, 97 Yale L.J. 281, 288 (1987) (arguing that Madison's notes should be seen as "accurate but indirect evidence" of the way that leaders of the day understood the text of the Constitution).
133. Martin S. Flaherty, The Most Dangerous Branch, 105 Yale L.J. 1725, 1802 (1996) ("[T]he great public discussion over the document, which involved hundreds of writers for more than a year, can clarify meanings that the private drafting of the instrument, which involved fifty-five speakers during a single summer, cannot. ").
134. Until the 1890s, secret voting, or the "Australian ballot, " was not available under most state electoral proceedings. See Richard L. Hasen, Vote Buying, 88 Calif. L. Rev. 1323, 1327 (2000).
135. Jac. C. Heckelman, The Effect of the Secret Ballot on Voter Turnout Rates, 82 Pub. Choice 107, 111 (1995).
136. See generally Eldon Cobb Evans, A History of the Australian Ballot System in the United States (1917) (describing the introduction of secret voting to the United States).
137. See 3 Cortlandt F. Bishop, History of Elections in the American Colonies 141 (photo. reprint 2002)(New York, Columbia Coll. 1893).
138. See The Colonial Laws of Massachusetts: Reprinted from the Edition of 1660, with the Supplements to 1672, at 149 (photo. reprint) (Boston, Rockwell & Churchill 1889) (indicating that elections would proceed "by writing the names of the person Elected, in papers open, or once foulded, not twisted nor rouled up, that they may be the sooner perused").
139. Eldon Cobb Evans, A History of the Australian Ballot System in the United States (1917), at 19.
140. See W. Va. Const. art. IV, § 2 ("In all elections by the people, the mode of voting shall be by ballot; but the voter shall be left free to vote by either open, sealed or secret ballot, as he may elect. ").
141. See generally Joanna Klonsky, The Caucus System in the U.S. Presidential Nominating Process, Council on Foreign Relations (Mar. 3, 2008), http://www.cfr.org/publication/15640/caucus_system_in_the_us_presidential_nominating_process.html#p2 (describing the caucus process).
142. See U.S. Const. art. I, § 4 ("The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.... ").
143. Jocelyn Friedrichs Benson, Democracy and the Secretary: The Crucial Role of State Election Administrators in Promoting Accuracy and Access to Democracy, 27 St. Louis U. Pub. L. Rev. 343, 354-57 (2008);
144. Note, Toward a Greater State Role in Election Administration, 118 Harv. L. Rev. 2314, 2316 (2005).
145. See, e.g., Carolyn J. Lukensmeyer & Steve Brigham, Taking Democracy to Scale: Creating a Town Hall Meeting for the Twenty-First Century, 91 Nat'l Civic Rev. 351 (2002) (advocating a new model of town hall meetings as a way to give voice to the public and gather information for elected officials).
146. See Frank M. Bryan, Real Democracy: The New England Town Hall Meeting and How It Works 26-27 (2004).
147. Alexis de Tocqueville: Democracy in America 53 (Isaac Kramnick ed., W.W. Norton & Co. 2007) (Henry Reeve trans. 1841) at 26 n.3.
148. Alexis de Tocqueville: Democracy in America 53 (Isaac Kramnick ed., W.W. Norton & Co. 2007) (Henry Reeve trans. 1841).
149. See 1 Timothy Dwight, Travels in New England and New York 179-82 (Barbara Miller Solomon ed., Belknap Press of Harvard Univ. Press 1969) (1821).
150. Wheelock v. City of Lowell, 81 N.E. at 179.
151. Wheelock v. City of Lowell, 81 N.E. 977, 979 (Mass. 1907). The quote continues: No small part of the capacity for honest and efficient local government manifested by the people of this commonwealth has been due to the training of citizens in the forum of the town meeting. The jealous care to preserve the means for exercising the right of assembling for discussion of public topics manifested in city charters by the representatives of the people, whenever providing for the transition from the town meeting to the city form of local government, demonstrates that a vital appreciation of the importance of the opportunity to exercise the right still survives. The practical instruction of the citizen in affairs of government through the instrumentality of public meetings and face to face discussions may be regarded quite as important as their amusement, edification or assumed temporal advancement in ways heretofore expressly authorized by statute and held constitutional.
152. U.S. Const. art. I, § 5, cl. 3. (citations omitted).
153. U.S. Const. art. I, § 5, cl. 3. Of course publication of the voting record might have been made mandatory in all circumstances; however, an earlier part of the Clause hints at an explanation for why disclosure was originally made optional: "excepting such Parts as may in their Judgment require Secrecy. "
154. Akhil Reed Amar, America's Constitution: A Biography (2005) at 82. Note that any form of disclosure marked a change from historical practice in England and the colonies that had shielded Parliament from public scrutiny.
155. Akhil Reed Amar, America's Constitution: A Biography 14-15, 308-12 (2005) at 82.
156. Cf. U.S. Const. art. I, § 3, cl. 6 (using two-thirds for an impeachment conviction);
157. Daniel N. Hoffman, Governmental Secrecy and the Founding Fathers: A Study in Constitutional Controls (1981) art. I, § 5, cl. 2 (using two-thirds in order to expel a member of Congress);
158. Daniel N. Hoffman, Governmental Secrecy and the Founding Fathers: A Study in Constitutional Controls (1981) art. I, § 7, cl. 2 (using two-thirds to bypass a presidential veto);
159. Daniel N. Hoffman, Governmental Secrecy and the Founding Fathers: A Study in Constitutional Controls (1981) art. II, § 2, cl. 2 (using two-thirds for purposes of Senate advice and consent to the President);
160. Daniel N. Hoffman, Governmental Secrecy and the Founding Fathers: A Study in Constitutional Controls (1981) art. V (using two-thirds and three-fourths for purposes of amending the Constitution).
161. Daniel N. Hoffman, Governmental Secrecy and the Founding Fathers: A Study in Constitutional Controls 13 (1981).
162. Pa. Const. of 1776, art. II, at 24-29, 48-49, 55-61.
163. Pa. Const. of 1776, art. II, § 13;
164. see also N.Y. Const. art. III, § 10 ("Each house of the legislature shall keep a journal of its proceedings, and publish the same, except such parts as may require secrecy. The doors of each house shall be kept open, except when the public welfare shall require secrecy. "). More recently, states have begun passing "sunshine" laws to increase open access to government documents and proceedings.
165. See generally Michael K. McLendon & James C. Hearn, Mandated Openness in Public Higher Education: A Field Study of State Sunshine Laws and Institutional Governance, 77 J. Higher Educ. 645, 645-46 (2006) (describing the proliferation of sunshine laws).
166. C-SPAN, http://www.c-span.org (follow "Schedules" tab to subsequent options) (last visited Feb. 23, 2011).
167. About C-SPAN, C-SPAN, http://www.c-span.org/About/About-C-SPAN (last visited Feb. 23, 2011).
168. See generally About C-SPAN, C-SPAN, http://www.c-span.org/About/About-C-SPAN (last visited Feb. 23, 2011) ("C-SPAN receives no government funding; operations are funded by fees paid by cable and satellite affiliates who carry C-SPAN programming.").
169. Memorandum on Transparency and Open Government, 2009 Daily Comp. Pres. Doc. (Jan. 21, 2009). In practice the Obama Administration's efforts toward increased transparency have received mixed reviews.
170. See, e.g., The Nat'l Sec. Archive, George Washington Univ., Sunshine and Shadows: The Clear Obama Message for Freedom of Information Meets Mixed Results (2010), http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB308/2010FOIAAudit.pdf.
171. See, e.g., Press Release, U.S. Courts for the Ninth Circuit, Ninth Circuit Court of Appeals To Offer Remote Viewing of En Banc Proceedings (Dec. 13, 2010), available at http://www.ce9.uscourts.gov/absolutenm/articlefiles/279-COA_December_EnBancs.pdf.
172. But see Hollingsworth v. Perry, 130 S. Ct. 705 (2010) (staying an order to broadcast courtroom proceedings in California's controversial Proposition 8 case).
173. See Mildred Amer, Secret Sessions of Congress: A Brief Historical Overview (2004).
174. Journal Entry by Jared Sparks (Apr. 19, 1830), in 3 The Records of the Federal Convention of 1787, at 478, 478-79 & n.2 (Max Farrand ed., 1966) (rev. ed. 1937).
175. Mildred Amer, Secret Sessions of Congress: A Brief Historical Overview (2004) at 2.
176. David M. Rabban, The Emergence of Modern First Amendment Doctrine, 50 U. Chi. L. Rev. (1983). at 1.
177. David M. Rabban, The Emergence of Modern First Amendment Doctrine, 50 U. Chi. L. Rev. (1983) at 3.
178. David M. Rabban, The Emergence of Modern First Amendment Doctrine, 50 U. Chi. L. Rev. (1983) at 6. Moreover, even in the early years when secret sessions were the norm, congressional proceedings were necessarily deliberations limited to a small group of elected representatives. Direct democracy initiatives, on the other hand, are inherently public, allinclusive affairs. It might be possible to conduct secretive legislative activity in Congress in the interests of national security or cooperation with the executive branch, but it might not be with a ballot initiative in which all voters should be fully informed and have access to the same information and in which the state's interest in preventing fraud or manipulation is compelling.
179. For a broader overview of historical First Amendment doctrine than is useful here, see David M. Rabban, The Emergence of Modern First Amendment Doctrine, 50 U. Chi. L. Rev. 1205 (1983);
180. and David M. Rabban, The First Amendment in Its Forgotten Years, 90 Yale L.J. 514 (1981).
181. See Elena Kagan, Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine, 63 U. Chi. L. Rev. 413, 414 (1996) ("[T]he application of First Amendment law is best understood and most readily explained as a kind of motivehunting. ");
182. Jed Rubenfeld, The First Amendment's Purpose, 53 Stan. L. Rev. 767 (2001) (arguing for "purposivism" in First Amendment analysis of challenged laws and regulations).
183. Before wading into the analysis of First Amendment doctrine, a disclaimer is in order. The bulk of First Amendment cases that have reached the Supreme Court over the last 150 years are actually Fourteenth Amendment cases insofar as incorporation is what enables enforcement of the First Amendment against the states. Moreover, just as the struggles on behalf of racial equality and democratic inclusion are what led to the ratification of the Fourteenth Amendment, many of the cases interpreting the First Amendment's application to the states came out of the civil rights movement in the South, another generation's struggle for inclusion. See Harry Kalven, Jr., The Negro and the First Amendment 66-70 (1966). Thus, the First Amendment doctrine and analysis that follows makes sense only because of the historic processes of expanding democratic inclusion in general and the Fourteenth Amendment in particular; it is a deeply American story inextricably connected to historic struggles for expansion of democratic rights, popular sovereignty, and broader inclusion in civil society.
184. 323 U.S. 516 (1945).
185. 303 U.S. 444 (1938).
186. See also Barenblatt v. United States, 360 U.S. 109 (1959) (limiting First Amendment protections against compulsory disclosure of associational relationships in the context of a governmental interest of inquiry into the Communist Party);
187. Sweezy v. New Hampshire, 354 U.S. 234 (1957) (overturning a conviction for refusal to identify members of a fringe political party);
188. Watkins v. United States, 354 U.S. 178 (1957) (protecting a witness from a congressional committee's efforts to compel disclosure);
189. United States v. Rumely, 345 U.S. 41 (1953) (restricting the reach of a House resolution seeking to require disclosure of the names of people who made bulk purchases of certain political books).
190. 357 U.S. 449 (1958);
191. Harry Kalven, Jr., The Negro and the First Amendment (1966) at 91;
192. Meredith Hattendorf, Comment, Theoretical Splits and Consistent Results on Anonymous Political Speech: Majors v. Abell and ACLU of Nevada v. Heller, 50 St. Louis U. L.J. 925, 930 (2006);
193. Jennifer B. Wieland, Note, Death of Publius: Toward a World Without Anonymous Speech, 17 J.L. & Pol. (2001) at 594.
194. The Court framed anonymity as a question related to "[e]ffective advocacy" and association rather than its own independent right. Patterson, 357 U.S. at 460.
195. Doe v. Reed, 130 S. Ct. (2010) at 462.
196. The same is not true of most political groups today that have support sufficient to garner the number of signatures required to initiate a ballot initiative. Though the petitioners in Reed claimed that they feared reprisals, Petitioners' Brief at 10-12, Doe v. Reed, 130 S. Ct. 2811 (2010) (No. 09-559), they are not a vulnerable minority group in any meaningful sense.
197. Harry Kalven, Jr., The Negro and the First Amendment (1966) at 92-94.
198. See Patterson, 357 U.S. at 464.
199. Bates v. City of Little Rock, 361 U.S. 516 (1960).
200. see also Bates v. City of Little Rock, 361 U.S. 516 (1960) (extending protection from compelled disclosure to NAACP contributors).
201. 362 U.S. 60 (1960).
202. 362 U.S. at 64.
203. 362 U.S. at 63-65.
204. In dissent, Justice Clark attempted to distinguish Talley's situation from that of the NAACP by indicating that "[t]he record is barren of any claim, much less proof, that he will suffer any injury whatever by identifying the handbill with his name. " 362 U.S. at 69 (Clark, J., dissenting). Justice Clark continued his strongly worded dissent: "I stand second to none in supporting Talley's right of free speech-but not his freedom of anonymity. "
205. 362 U.S. at 70. Justice Clark reported that, at the time, thirty-six states had laws prohibiting anonymous campaign literature.
206. 362 U.S. at 70 n.2.
207. For more on associational speech rights in the context of the NAACP's work in the South, see Harry Kalven, Jr., The Negro and the First Amendment (1966) at 65-121.
208. 514 U.S. 334 (1995). The case attracted considerable attention.
209. See, e.g., Rachel J. Grabow, Note, McIntyre v. Ohio Elections Commission: Protecting the Freedom of Speech or Damaging the Electoral Process?, 46 Cath. U. L. Rev. 565 (1997) (examining the right to distribute anonymous campaign literature);
210. Julia L. Luongo, Case Note, McIntyre v. Ohio Elections Comm'n, 115 S. Ct. 1511 (1995), 26 Seton Hall L. Rev. 1277 (1996) (reviewing the facts and outcome of the case);
211. Mark A. Whitt, Note, McIntyre v. Ohio Elections Comm'n: "A Whole New Boutique of Wonderful First Amendment Litigation Opens Its Doors, " 29 Akron L. Rev. 423 (1996) (criticizing the holding for misapplying early American history, wrongly applying strict scrutiny, and failing to recognize that the policy was narrowly tailored).
212. The challenge was actually based on the First Amendment as incorporated through the Fourteenth Amendment. See McIntyre, 514 U.S. at 336 n.1.
213. First Amendment and Restrictions on Political Speech: Hearing Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 106th Cong. (1999) at 338 n.3.
214. First Amendment and Restrictions on Political Speech: Hearing Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 106th Cong. (1999) at 339-40.
215. First Amendment and Restrictions on Political Speech: Hearing Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 106th Cong. (1999) at 348-51, 357.
216. First Amendment and Restrictions on Political Speech: Hearing Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 106th Cong. (1999) at 341-56.
217. First Amendment and Restrictions on Political Speech: Hearing Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 106th Cong. (1999) at 342.
218. In dissent, Justice Scalia wrote that, thanks to the majority opinion, "a whole new boutique of wonderful First Amendment litigation opens its doors. " First Amendment and Restrictions on Political Speech: Hearing Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 106th Cong. (1999) at 381 (Scalia, J., dissenting).
219. First Amendment and Restrictions on Political Speech: Hearing Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 106th Cong. 13-16 (1999).
220. See, e.g., First Amendment and Restrictions on Political Speech: Hearing Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 106th Cong. 13-16 (1999) (statement of David M. Mason, Comm'r, FEC) (discussing the risks and uncertainty of having disclosure statutes overturned).
221. For a discussion of the state legislative responses to McIntyre, see Amy Constantine, Note, What's in a Name? McIntyre v. Ohio Elections Commission: An Examination of the Protection Afforded to Anonymous Political Speech, 29 Conn. L. Rev. 459, 477-82 (1996).
222. In ACLU of Nevada v. Heller, the Ninth Circuit was presented with a First Amendment challenge to a Nevada statute that required "persons either paying for or 'responsible for paying for' the publication of 'any material or information relating to an election, candidate or any question on a ballot' to identify their names and addresses on 'any [published] printed or written matter or any photograph.'" 378 F.3d 979, 981 (9th Cir. 2004) (alteration in original) (quoting the Nevada statute). The Ninth Circuit found the statute to be inconsistent with the First Amendment protections identified in McIntyre.
223. Majors v. Abell, 361 F.3d at 989-91. The same year, the Seventh Circuit considered the constitutionality of similar legislation out of Indiana but came to a different conclusion than the Ninth Circuit did in Heller. The challenged statute required that an identifying disclaimer be placed on any political advertising that expressly supported or opposed a particular candidate.
224. Majors v. Abell, 361 F.3d 349, 350 (7th Cir. 2004). The Seventh Circuit dismissed the suit on the merits.
225. Majors v. Abell, 361 F.3d (7th Cir. 2004) at 355. Judge Posner, writing for the majority, distinguished the case from McIntyre and instead placed it in a line of Supreme Court cases based on disclosure in political campaigns.
226. Majors v. Abell, 361 F.3d (7th Cir. 2004) at 351-52. As Judge Easterbrook's dubitante opinion in Majors highlights, however, the anonymous speech doctrine epitomized by McIntyre is in tension with the disclosure doctrine Judge Posner relied on to resolve the case.
227. Majors v. Abell, 361 F.3d (7th Cir. 2004) at 355-56 (Easterbrook, J., dubitante);
228. Meredith Hattendorf, Comment, Theoretical Splits and Consistent Results on Anonymous Political Speech: Majors v. Abell and ACLU of Nevada v. Heller, 50 St. Louis U. L.J. 925, 930 (2006) (discussing circuit court rulings on anonymous political speech in the wake of McIntyre).
229. Elena Kagan, Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine, 63 U. Chi. L. Rev. (1996) at 414.
230. 424 U.S. 1 (1976) (per curiam).
231. There are earlier cases. See, e.g., United States v. Harriss, 347 U.S. 612 (1954) (upholding disclosure requirements and regulation of lobbying activity);
232. Poulos v. New Hampshire, 345 U.S. 395, 407 n.11 (1953) ("'[A] state may protect its citizens from fraudulent solicitation by requiring a stranger in the community... to establish his identity....'"
233. (quoting Cantwell v. Connecticut, 310 U.S. 296, 306 (1940);
234. Cox v. New Hampshire, 312 U.S. 569 (1941) (affirming a conviction for parading on a public street without a required license);
235. New York ex rel. Bryant v. Zimmerman, 278 U.S. 63, 72 (1928) ("[The disclosure requirement proceeds] on the two-fold theory that the state within whose territory and under whose protection the association exists is entitled to be informed of its nature and purpose, of whom it is composed and by whom its activities are conducted, and that requiring this information to be supplied for the public files will operate as an effective or substantial deterrent from the violations of public and private right to which the association might be tempted if such a disclosure were not required. ");
236. Lewis Publ'g Co. v. Morgan, 229 U.S. 288, 296 (1913) (upholding a federal provision requiring "'every newspaper, magazine, periodical, or other publication'" to submit a list of its editorial and business officers (quoting Post Office Appropriation Act of 1912, ch. 389, § 2, 37 Stat. 553, 554).
237. 130 S. Ct. 876 (2010).
238. For an excellent summary of the Court's analysis of the expenditure and contribution limits, see Daniel A. Farber, The First Amendment (3d ed. 2010) at 234-37.
239. See also Trevor Potter, Buckley v. Valeo, Political Disclosure and the First Amendment, 33 Akron L. Rev. 71 (1999) (reviewing the disclosure doctrine).
240. 2 U.S.C. §§ 431-456 (Supp. II 1973). FECA, the Court noted, was "'by far the most comprehensive reform legislation [ever] passed by Congress concerning'" elections.
241. Buckley, 424 U.S. at 7 (alteration in original).
242. (quoting Buckley v. Valeo, 519 F.2d 821, 831 (D.C. Cir. 1975).
243. See Buckley, 424 U.S. at 13, 63-64.
244. Louis D. Brandeis, Other People's Money and How the Bankers Use It (1933) at 14-34.
245. Louis D. Brandeis, Other People's Money and How the Bankers Use It (1933) at 11.
246. Louis D. Brandeis, Other People's Money and How the Bankers Use It (1933) at 60.
247. Louis D. Brandeis, Other People's Money and How the Bankers Use It (1933) at 60-61.
248. Louis D. Brandeis, Other People's Money and How the Bankers Use It (1933) at 66-68.
249. Louis D. Brandeis, Other People's Money and How the Bankers Use It (1933) at 67
250. Quoting Louis D. Brandeis, Other People's Money and How the Bankers Use It 62 (1933).
251. First Nat'l Bank of Bos. v. Bellotti, 435 U.S. (1978) at 72.
252. See First Nat'l Bank of Bos. v. Bellotti, 435 U.S. 765, 791-92 (1978) (stating that "the people in our democracy are entrusted with the responsibility for judging and evaluating the relative merits of conflicting arguments" and thus there is a significant public interest in ensuring free access to information).
253. See, e.g., Davis v. FEC, 554 U.S. 724 (2008) (finding unconstitutional a disclosure requirement imposed on a self-financed candidate);
254. Watchtower Bible & Tract Soc'y of N.Y., Inc. v. Vill. of Stratton, 536 U.S. 150, 166-67 (2002) (striking down a local ordinance requiring door-to-door canvassers to obtain permits revealing their identities);
255. Citizens Against Rent Control v. City of Berkeley, 454 U.S. 290, 299-300 (1981) ("The integrity of the political system will be adequately protected if contributors are identified in a public filing revealing the amounts contributed; if it is thought wise, legislation can outlaw anonymous contributions. ").
256. Buckley, 424 U.S. at 74. The Court had the opportunity to apply this exemption to a minor party.
257. Brown v. Socialist Workers '74 Campaign Comm., 459 U.S. 87, 92 (1982) ("The government's interests in compelling disclosures are 'diminished' in the case of minor parties. ").
258. Elena Kagan, Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine, 63 U. Chi. L. Rev. (1996) at 467.
259. Elena Kagan, Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine, 63 U. Chi. L. Rev. (1996) at 467. Part I for a detailed analysis of the decision in Reed.
260. 2 U.S.C. § 431 (2006).
261. McConnell v. FEC, 540 U.S. 93, 115 (2003).
262. (quoting United States v. Auto. Workers, 352 U.S. 567, 572 (1957).
263. 2 U.S.C. § 441i.
264. See McConnell, 540 U.S. at 142, 156, 161, 171.
265. As Judge Easterbrook critically pointed out in Majors, the Court's "failure to discuss McIntyre, or even to cite Talley, American Constitutional Law Foundation, or Watchtower, makes it impossible for courts at [the circuit] level to make an informed decision" about which principle to apply in disclosure cases. Majors v. Abell, 361 F.3d 349, 356 (7th Cir. 2004) (Easterbrook, J., dubitante).
266. 130 S. Ct. 876 (2010).
267. Years after publishing her article Elena Kagan, Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine, 63 U. Chi. L. Rev. 413, 414 (1996), then-Solicitor General Elena Kagan argued the government's case in Citizens United.
268. Kagan lost the case, but the outcome may be consistent with her academic scholarship insofar as both her article and the Citizens United majority sought to distinguish Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990)
269. from Buckley v. Valeo, 424 U.S. 1 (1976).
270. See Citizens United, 130 S. Ct. 876 (citing Austin throughout).
271. Elena Kagan, Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine, 63 U. Chi. L. Rev. (1996) at 465 n.143.
272. This aspect of Citizens United has been the focus of reporting and commentary on the case. See, e.g., Adam Liptak, Justices, 5-4, Reject Corporate Campaign Spending Limit, N.Y. Times, Jan. 22, 2010, at A1;
273. see also Daniel Winik, Note, Citizens Informed: Broader Disclosure and Disclaimer for Corporate Electoral Advocacy in the Wake of Citizens United, 120 Yale L.J. 622 (2010) (arguing that broad disclosure and disclaimer regulations for corporate electoral speech are both constitutionally sound and normatively superior to outright prohibitions).
274. Citizens United, 130 S. Ct. at 916.
275. 525 U.S. 182 (1999).
276. Colo. Const. art. V, § 1, paras. 1-3;
277. Colo. Rev. Stat. §§ 1-40-101 to-135 (2010);
278. State I&R, Initiative & Referendum Inst., http://www.iandrinstitute.org/statewide_i&r.htm (last visited Feb. 23, 2011).
279. See, e.g., Colo. Rev. Stat. § 1-40-111.
280. ACLF, 525 U.S. at 186 (citations omitted).
281. Akhil Reed Amar, The Five-Legged Dog, Am. Law., Sept. 1999, at 47, 47
282. (quoting ACLF, 525 U.S. at 199) at 187.
283. Akhil Reed Amar, The Five-Legged Dog, Am. Law., Sept. 1999, at 47, 47 (quoting ACLF, 525 U.S. at 199).
284. ACLF, 525 U.S. at 186-87 (describing petition circulating as "core political speech" that merits the full protection of the First Amendment).
285. Petition for Writ of Certiorari, ACLF, 525 U.S. 182 (No. 97-930), 1997 WL 33485681.
286. Petitioner's Brief, ACLF, 525 U.S. 182 (No. 97-930), 1998 WL 221384;
287. Petitioner's Reply to Brief in Opposition, ACLF, 525 U.S. 182 (No. 97-930), 1998 WL 34081105.
288. Brief of the Council of State Governments et al. as Amici Curiae in Support of Petitioner, ACLF, 525 U.S. 182 (No. 97-930), 1998 WL 212593;
289. Brief of the States of Washington et al. as Amici Curiae in Support of Petitioner, ACLF, 525 U.S. 182 (No. 97-930), 1998 WL 221378.
290. Akhil Reed Amar, The Five-Legged Dog, Am. Law., Sept. 1999, at 47.
291. Elena Kagan, Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine, 63 U. Chi. L. Rev. (1996) at 443 ("The distinction between content-based and contentneutral regulations of speech serves as the keystone of First Amendment law. ").
292. See National Organization for Marriage To Fight Potential State-Imposed Restrictions, EWTN News (Sept. 28, 2010, 11:35 AM), http://ewtnnews.com/new.php?id=1782.
293. Jed Rubenfeld, Reading the Constitution as Spoken, 104 Yale L.J. at 768.
294. Elena Kagan, Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine, 63 U. Chi. L. Rev. (1996) at 415.
295. See generally Philip Bobbitt, Constitutional Fate: Theory of the Constitution 59-73 (1982) (describing prudential argumentation in constitutional law).
296. Nicole Fuller, Cordish Attacks Anti-Slots Petitions: Elections Board Failed To Check for Fraud, Other Irregularities, Lawsuit Says, Balt. Sun, Feb. 24, 2010, at 2A.
297. See Buckley v. Valeo, 424 U.S. 1, 67 (1976) (per curiam).
298. For a fifty-state survey of the voter registration requirements, see State by State Voter Laws and Registration Deadlines, Declare Yourself, http://www.declareyourself.com/voting_faq/state_by_state_info_2.html (last visited Feb. 23, 2011).
299. See also, e.g., Md. Code Ann., Elec. Law § 3-102 (West 2010) (providing voter registration requirements).
300. See, e.g., Alaska Stat. § 15.15.030 (2010) (describing the ballot design criteria);
301. N.J. Stat. Ann. § 19:8-7 (West 1999) (describing polling booth requirements);
302. W. Va. Code Ann. § 3-4A-9a (LexisNexis 2006) (describing requirements for "ballot-marking accessible voting device[s]").
303. See, e.g., Wash. Rev. Code Ann. § 29A.08.720 (West 2005) (providing for disclosure of voting registration records);
304. see also Jeffrey T. Even, Washington's Address Confidentiality Program: Relocation Assistance for Victims of Domestic Violence, 31 Gonz. L. Rev. 523, 537 (1996) (stating that "voter registration lists are public records").
305. Lornet Turnbull, Domestic Partner Measure Kicks In, Seattle Times, Dec. 3, 2009, at A1.
306. State I&R, Initiative & Referendum Inst., http://www.iandrinstitute.org/statewide_i&r.htm (last visited Feb. 23, 2011).
307. See W. Va. Const. art. IV, § 2.
308. Trevor Potter, Buckley v. Valeo, Political Disclosure and the First Amendment, 33 Akron L. Rev. 71 (1999) (describing arguments against disclosure);
309. Note, The Constitutional Right to Anonymity: Free Speech, Disclosure and the Devil, 70 Yale L.J. (1961) at 1105-13 (explaining how disclosure can lead to deterrence).
310. Doe v. Reed, 130 S. Ct. 2811, 2824 (2010) (Alito, J., concurring).
311. 357 U.S. 449 (1958).
312. Petitioners' Brief at 26, 27, 32, Reed, 130 S. Ct. 2811 (No. 09-559).
313. 459 U.S. 87 (1982).
314. Buckley v. Valeo, 424 U.S. 1, 72-74 (1976) (per curiam).
315. This point is consistent with the Court's decision in Reed. See 130 S. Ct. at 2815.
316. See generally Sally Avery Bermanzohn, Violence, Nonviolence, and the Civil Rights Movement, 22 New Pol. Sci. 31 (2000) (describing local government complicity with lynch mob violence).
317. See, e.g., Manny Fernandez, Verdict Is Manslaughter in L.I. Hate Crime Trial, N.Y. Times, Apr. 20, 2010, at A1.
318. Note, The Constitutional Right to Anonymity: Free Speech, Disclosure and the Devil, 70 Yale L.J. (1961) at 1109-10 (laying out arguments in favor of disclosure).
319. See Buckley, 424 U.S. at 66-68.
320. See New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting) ("It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country. ").
321. Nicole Fuller, Cordish Attacks Anti-Slots Petitions: Elections Board Failed To Check for Fraud, Other Irregularities, Lawsuit Says, Balt. Sun, Feb. 24, 2010, at 2A.