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Posted Nov. 28, 2011

Greater Disclosure Would Boost Political Speech, Gilbert Says

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Professor Michael Gilbert authored a forthcoming paper titled "Disclosure, Credibility and Speech" and gave a talk on the topic recently at the Law School.

While conventional wisdom holds that mandatory disclosure of political activities chills political speech, University of Virginia School of Law professor Michael Gilbert argues that greater disclosure could actually lead to an increase in political speech.

Gilbert, who authored a forthcoming paper on the topic titled "Disclosure, Credibility and Speech," spoke recently at the Law School at a brown-bag lunch sponsored by the American Constitution Society.

In certain situations, Gilbert said, mandatory disclosure of political activities can certainly chill speech.

Target Corp., he noted, faced a backlash in 2010 following reports that it had contributed to a political group that was backing a candidate with a history of opposing gay rights. Additionally, he said, after disclosure rules revealed the identities of supporters of the Proposition 8 ballot initiative that banned same-sex marriage in California, some of the supporters claimed to have lost their jobs or faced harassment and other reprisals.

"The fear of disclosure leading to harassment or demonstrations or boycotts is not always hypothetical," he said.

At the same time, however, Gilbert suggested that greater disclosure could lead to a net increase in speech, as disclosure can better inform voters and illuminate the political process. More disclosure could help voters better understand which politicians are keeping their promises and make judgments about their credibility.

"We ought to be skeptical of the reflexive claim that, 'Hey there's a disclosure requirement and that raises a First Amendment problem,'" he said. "No, it's not enough to say that disclosure imposes any old cost on speech. You have to show that it imposes a net cost on speech."

Opponents of disclosure requirements ought to be asked to demonstrate that whatever costs flow from disclosure rules are not outweighed by the benefits.

"It's very hard for a plaintiff to show this," he said. "Courts probably won't require it. But it's valuable to think about."

The government, he said, has an "information interest" in requiring political speech to be disclosed. Greater disclosure could do more to meet this interest, he said.

The point of disclosure is to help voters identify and monitor relationships between speakers — particularly wealthy speakers — and politicians, Gilbert said.

"The irony, if I'm right, is that disclosure can not only help voters monitor and identify those relationships, but it will actually increase the number of relationships they have to monitor and identify," he said.