July 6, 2010
Bringing Home IncivilityBy Mark J. Fitzgibbons
Don't be fooled by the schoolmarm looks of Elaine Marshall, North Carolina's Secretary of State and the Democratic Party's nominee this year for U.S. Senate. She's a dangerous person. She's also part of a trend from the statist left.
As North Carolina's Secretary of State, Ms. Marshall oversees all sorts of filings for elections, business, charities, and lobbying. Her office controls the issuance of many different types of licenses. Arguably, she's the state's most powerful bureaucrat.
Some of the dangers of information collected and controlled by secretaries of state were at issue in a case decided by the U.S. Supreme Court on June 24, Doe v. Reed, Washington Secretary of State. That case involved a petition for a referendum against gay marriage. To get a referendum on the ballot, four percent of Washington voters must sign a petition and provide their home addresses. The petitions are then submitted to the Secretary of State.
Washington Secretary of State Sam Reed determined the names and addresses to be "public records" under Washington law. Pro-gay marriage activists issued a press release stating they intended to collect the names and addresses and post them online. The referendum sponsor and some signers objected on First Amendment grounds, claiming that such online disclosure would put signers at risk and chill First Amendment rights.
Petition signers for California's Proposition 8, for example, were harassed and threatened. History is filled with incidents of violence and intimidation against people associating for controversial or unpopular causes.
The Roberts court ruled that the First Amendment did not prevent Secretary of State Reed from making those names and addresses open to public inspection. It wrote that compelled disclosure of signatory information on referendum petitions is subject to "exacting scrutiny." Under that standard, there must be a "substantial relation between the disclosure requirement and a sufficiently important governmental interest."
The court acknowledged that "those resisting disclosure can prevail ... if they show 'a reasonable probability that compelled disclosure [of personal information] will subject them to threats, harassment, or reprisals from either Government officials or private parties.'" The court said the petitioners failed to meet that burden.
Justice Clarence Thomas dissented that the court applied the wrong standard and would have ruled for the petitioners. He noted that even what may be non-controversial association is suppressed by such disclosure.
I wish the court had known about Elaine Marshall. Secretary Marshall doesn't wait for activists to publish on the internet names and residential addresses filed with her office. She does it for them.
Like most states, North Carolina has a charitable solicitation registration statute that requires nonprofits and their consultants to register and obtain licenses before the nonprofits may ask for contributions. The Supreme Court has ruled on multiple occasions that nonprofit communications asking for contributions are protected by the First Amendment since they provide information and advocacy.
North Carolina's consultant registration statute requires listing of names and residential addresses. As a filer, I objected. Before 2009, left-wingers labeled conservatives as out of the mainstream and controversial. In 2009, however, Janet Napolitano's Department of Homeland Security issued a warning that people exhibiting certain conservative tendencies are deemed potential terrorists. We are targets.
I later learned that Secretary Marshall publishes on the internet the registration statements with the names and residential addresses of individuals like me. Her aide claimed that a statute directing her office to publish only summary information was insufficient to stop her, since the statute did not say she could not publish residential addresses. That's how bureaucrats think.
Ms. Marshall does not publish the residential addresses of her own political campaign consultants. Also, the union leaders and lobbyists who bundle campaign contributions for her can file their business addresses.
Most individuals must file their names and residential addresses with state offices (remember, Ms. Marshall controls election, business, charitable, lobbying, and all sorts of filings). Is it a legislative oversight not to pass laws prohibiting state officials from posting such private information on the internet? The answer, I believe, is that state officials have no authority to publish filed information unless expressly authorized by law. Try telling that, though, to a bureaucrat.
Elaine Marshall is running for the U.S. Senate claiming to be a trendsetter on government disclosure and the internet. She is an example of the difference between liberal statists and the rest of us. She thinks disclosure laws are meant to expose private individuals who are regulated. We believe their purpose is to keep an eye on government conduct.
Think of how many people are obligated to file their residential addresses with state government. You file that information to get a driver's license, pay taxes, and obtain certain benefits provided by states. What happens when other state officials like Ms. Marshall decide there is a "sufficiently important governmental interest" at play and publish the home addresses of, say, concealed gun or hunting permit holders, simply because no law says they can't?
It's not just conservatives -- you know, suspected terrorists -- who should worry. Victims of domestic violence and other crimes often have stalkers. Registering with states for any license or benefit should not expose victims to danger.
North Carolina has an address confidentiality program purportedly to protect victims of domestic violence. Unfortunately, Ms. Marshall keeps that program a secret. She does not provide notice of it on licensing forms collecting home addresses, or on her office's official website. But even the address confidentiality program itself was written in contemplation of third parties' requesting access to public records, and not so state officials could publish online the home addresses of registrants and license applicants.
After explaining my many concerns to Marshall's office, the response I got was, in effect, "so sue us." It's easy for bureaucrats to be so cavalier. They can cause harm that, if done by private citizens, would subject them to personal liability, except that bureaucrats are protected by sovereign immunity laws.
Costs typically prohibit citizens from obtaining injunctions. Many citizens would opt to avoid the activities that require filing. And that's the point. When First Amendment rights and lawful activities subject citizens to scrutiny equivalent to sex offenders, and the government fosters harassment and reprisals, it's easier for the government to beat down and control citizens.
Dissenting in Doe v. Reed, Justice Thomas wrote, "How many instances of 'threats, harassment or reprisals' must a signer endure before a court may grant relief?"
It seems the trendsetting Ms. Marshall wants to make the case that if you provide your home address or any information to the state, consider it provided for the world to see.
I can't imagine the damage Elaine Marshall and people like her would do in the Senate.