Using the State to Bully Dissidents

By now, most people know that Mozilla forced its CEO, Brendan Eich, to resign, because he donated $1,000 to a committee that supported Proposition 8, a California initiative that banned gay marriages in that state. Over 52% of the people of California voted in favor of Proposition 8. Many commentators have claimed that there is no free speech problem because Mozilla is a private company and the First Amendment prohibits only the state and federal governments from restricting speech. That argument is wrong.

It ignores a crucial factor—this forced resignation could not have occurred without the help of the State of California. For those who give more than $100 to a committee, California requires disclosure of the donors’ names, addresses, occupations, and employers, even for donations given after the campaign is over. Then, California conveniently publishes this information on the Secretary of State’s website. These disclosures often lead to private parties harassing donors.

ProtectMarriage.com, a group that supported Proposition 8, was one of the plaintiffs who sued to prevent California from facilitating harassment by publishing such details of its donors. (Full disclosure: The Fair Political Practices Commission [FPPC] was a defendant in that case, so I was a nominal defendant because I was then a Commissioner. The FPPC is the state version of the Federal Election Commission.)

Plaintiffs swore under oath that donors saw their pro-Proposition 8 signs stolen, windows broken, cars keyed, and property vandalized with spray paint. Some received “death threats, physical assaults,” and threats of arson. These death threats are more intimidating because the compelled disclosure included the donors’ street addresses. Even employers who did not contribute to Proposition 8 were subject to boycotts because one or more of their employees did contribute. In some cases, harassment forced employees to resign from their jobs.

One threat to a minister said that he “will be meeting his maker sooner than expected.” As for his congregation, “If you thought 9/11 was bad, you haven’t seen anything yet.” Two Mormon temples and a Knights of Columbus facility received envelopes containing a white powdery substance. A Mormon church found adhesive poured on its doormat and keypad. Mr. Eich is simply the latest victim; he will not be the last. As one commentator recently bragged in Slate, “Brendan Eich is just the beginning. Let’s oust everyone [more than 35,000 people] who donated to the campaign against gay marriage.”

The basic justification for requiring disclosure of those who give campaign contributions is that contributions lead to the appearance of corruption, some sort of quid pro quo. Maybe the donor will gain special access to the politician. That is what the Court affirmed earlier this month in McCutcheon v. FEC. That justification makes no sense when applied to laws: no one has special access or undue influence over a law, and that is what Proposition 8 is.

Moreover, for over 40 years, the Court has held that the state cannot compel disclosures if there is a “reasonable probability” that such disclosures will subject those identified to “threats, harassment, or reprisals” by private parties. That is what the Court said in Buckley v. Valeo (1976), and what it reaffirmed in Brown v. Socialist Workers ’74 Campaign Committee(1982), when the Socialist Workers claimed there was a “reasonable probability of threats, harassment, or reprisals.”

The federal district judge hearing the challenge to the donor disclosure law denied any relief because, he said, the protection of Buckley and Brown applies only to minority committees, like the Socialist Workers Campaign Committee. Because a majority of the voters (over 52%) approved Proposition 8, its donors cannot be part of a minority!

That is what passes for logic in California. If the state publishes donors’ names, home addresses, and so forth, and a few people use that information to harass these donors because they are exercising their constitutional rights, the state must stop disclosing, unless a majority of voters embraces the view of the donors. This logic would allow the state to aid Klan members to display a burning cross to harass someone who donates to the NAACP, because the great majority of people now oppose racism.

For far too long, some people have discriminated against others because of what they do in the privacy of their bedrooms. Yet that is no justification for a few gay rights activists to harass those who are not discriminating but only exercising their constitutional right to take positions on legal issues. By the way, when I expressed my concern about the California disclosure rules, one gay activist group tried to get me impeached. Gay activists, of all groups, should support free speech protections. Their use of free speech has enabled them to persuade many others to change their view on gay rights issues. Turnabout is not fair play.

The government should not aid and abet bullies.