Stifling Debate: Transparency vs. Privacy

By Kelly McCutchen 

KELLY McCUTCHEN President, Georgia Public Policy Foundation

President, Georgia Public Policy Foundation

Would you respond honestly at a public meeting in your community if the speaker asks you to raise your hand if you support gay marriage, a ban on abortion, restrictions on gun purchases or legalization of marijuana?

What if the meeting was being videotaped? 

For some individuals, expressing their honest views in a public forum could threaten their friendships, their business … even their jobs. 

Thankfully, citizens who feel strongly about an issue but concerned about the repercussions of speaking out personally have an option: pooling their money with others who share their views to fund organizations that can make their voices heard in the public debate. 

Our long history in America of protecting the privacy of these donors ensures all sides of an issue are heard, even if those views are controversial. Recently, however, there has been an effort to squelch this debate: a campaign to force nonprofits to place the names and addresses of their donors in a government database that would be publicly disclosed. 

Constitution Day is celebrated September 17, the day in 1787 that delegates to the Constitutional Convention met for the last time to sign the document they had created. There’s no better time to point out the dire unintended consequences of proposed changes to force disclosure: disaster for freedom of speech protections guaranteed all Americans by the First Amendment of the Constitution. 

It is important to make the distinction between government actions and private actions. Private actions, like the private ballot in elections, deserve privacy. Government actions, including government spending, should be transparent. 

The Georgia Public Policy Foundation has a stellar record of promoting government transparency. Georgia’s transparency Web site, Open.Georgia.Gov, was a result of years of efforts by the Foundation and others to encourage more public disclosure by government. Such disclosure is appropriate: Taxpayer dollars are being spent and Georgians have a right to know. 

Private actions are a different matter. Even the Founding Fathers used pen names to make their honest arguments for independence in broadsheets and in the Federalist Papers. During the civil rights era, the U.S. Supreme Court ruled that private organizations could not be forced to release their donor lists to the government. In that case, it was to protect donors to pro-civil rights groups like the NAACP. 

Freedom of speech is a nonpartisan issue. All Americans have the right to support causes they believe in, but to protect that right we must protect the right of individual privacy. We also must protect the right of individuals who choose to contribute to nonprofit organizations that can make their voices heard but do not want to be exposed to intimidation, retribution, harassment or solicitation by others. 

Make no mistake: Efforts to curtail free speech are not restricted to Washington, D.C. A measure introduced this year in the waning moments of Georgia’s General Assembly would have prohibited nonprofit organizations from mentioning a proposed constitutional amendment in the six months before an election. The only way to avoid this limit on free speech would have been for the nonprofit to publicly disclose its donors and their home addresses – thereby giving opponents an opportunity to intimidate and harass their contributors. 

Happily, citizens were able to use their free-speech rights to shine a light on this proposal and explain its unintended consequences. The language was removed from the bill. 

Here’s an example how such proposals could limit debate. In 2006, Georgia passed a constitutional amendment protecting citizens against eminent domain abuse. Leading up to the vote, the Georgia Public Policy Foundation played a crucial role in educating the public about this complicated legal issue and the need for such protections after the U.S. Supreme Court failed to protect private property rights in the now-famous Kelo v. City of New London decision. 

If we had been prohibited from mentioning this issue in the six months before the election, Georgians would have been deprived of the Foundation’s factual knowledge on the issue, along with information from those with other opinions. The same is true of the controversial constitutional amendment regarding charter schools in 2012. 

Private giving should remain private. The more controversial the issue, the more important it is to protect privacy. No one should face harassment or intimidation for supporting causes about which they feel passionate. 

The phrase, “the price of liberty is eternal vigilance” has been attributed to many famous figures, including Thomas Jefferson and Frederick Douglass. It is as true today as it was then. We must constantly guard against the erosion of our cherished freedoms or we are doomed to slide down the slippery slope and lose them.

Kelly McCutchen is president of the Georgia Public Policy Foundation, an independent think tank that proposes market-oriented approaches to public policy to improve the lives of Georgians. Nothing written here is to be construed as necessarily reflecting the views of the Georgia Public Policy Foundation or as an attempt to aid or hinder the passage of any bill before the U.S. Congress or the Georgia Legislature.

© Georgia Public Policy Foundation (September 18, 2015). Permission to reprint in whole or in part is hereby granted, provided the author and his affiliations are cited.

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