Privacy and Free Speech In The Political Landscape

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Private and anonymous communication has long played an important role in the American political tradition. It began with encrypted letters exchanged by American Revolutionaries such as Ben Franklin, John and Abigail Adams, and Thomas Jefferson. It continued with the Australian secret ballot, first used in New York in 1889 and adopted in 38 more states by 1896. Perhaps the best example of the key role privacy has played in the American electoral politics comes from the case of NAACP v. Alabama, in which the Supreme Court upheld the constitutional right of the NAACP to operate in Alabama without complying with a state requirement that it turn over its membership lists. The Court said that privacy was essential to “the freedom of individuals to associate for the collective advocacy of ideas,” as guaranteed by the First Amendment. But privacy has also been upheld in less volatile situations, as in 1995, when the Supreme Court upheld the right of an Ohio woman to pass out anonymous leaflets concerning a local election.

At the same time, the opposite principle — the importance of the free movement of information — has played an equally pivotal role in politics. This principle is also protected by the First Amendment, in this case the free speech clause, and in general it may be strongly opposed to what we think of as privacy. We recognize that speakers should be free to investigate and comment upon the lives of public figures, and the law raises the bar to defamation suits in such cases; a report must be not only erroneous but motivated by actual malice before it becomes actionable. We allow solicitors of funds or political support to tramp from door to door, intruding on the homeowner’s peace for the sake of furthering healthy public discourse. We allow handbills to be distributed despite the risk of littering, and private property to be treated as public for the sake of political speech.

To generalize about these conflicting examples of privacy and the free movement of information, one may conclude that constitutional principles of privacy apply when the intruding information-seeker is the government, but free speech principles protect information-seeking on the part of the private sector, often, but not always, journalists.

This analysis addresses the issue of how new technology—particularly the Internet—will change the balance between confidentiality and open information in American politics. Two related issues are particularly important: (1) Is online profiling – the collection by a political website of information about its visitors – harmful or beneficial for the political process? (2) To what extent is it legitimate for political websites to engage in aggressive outreach, contacting people who have not asked to be placed on email lists?

The questions may have no long-term or permanent answer, because the nature of online profiling and online outreach used in online politicking are changing rapidly, with each new permutation potentially having a different cost-benefit analysis. But in the short run, the answer is clear: At present, the use of information gathered online in electioneering has the effect of helping political and grassroots groups to grow and find new supporters. Because using the Internet is much cheaper than using paper and television, profiling and outreach are probably most useful to “underdog” groups or new candidates operating on shoestring budgets. Thus these techniques have substantial potential for breaking the hammerlock on electoral processes now held by incumbent office holders and parties, and any effort to restrict them would be significantly antidemocratic.

This democratizing potential is augmented by the growth of citizen-operated websites. As early as May 2000, an estimated 6,700 home-grown websites were in operation, in anticipation of the November election.