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Brow(ser) Beaten

By ALLYSIA FINLEY

THE WALL STREET JOURNAL ONLINE

04 APRIL 14

Mozilla ex-CEO Brendan Eich has been publicly crucified because he donated $1,000 to a 2008 California ballot measure (Proposition 8) that banned same-sex marriage (and has since been struck down). The software entrepreneur was forced to step down on Thursday after same-sex marriage proponents, including the co-founders of Rarebit and OkCupid, urged a boycott of the Mozilla Firefox web browser. Mr. Eich’s ouster seems to vindicate Supreme Court Justice Clarence Thomas, who warned in his 2010 Citizens United partial dissent about the chilling effects on free speech of campaign-finance disclosure laws.

California’s campaign-finance rules, which are among the most stringent in the nation, explicitly prohibit “anonymous contributions” in excess of $100. Prop. 8 donors who received death threats and other reprisals challenged this disclosure rule after their opponents targeted their homes and businesses. The directors of the non-profit California Musical Theater and Los Angeles Film Festival, who gave a combined $2,500 in support of the initiative, were ousted after opponents mobilized boycotts.

However, a federal district court rejected their as-applied challenge to the law based on the Supreme Court’s ruling in Buckley v. Valeo (1976), which held that the government has a compelling interest in providing “the electorate with information” about campaign financing. While disclosure requirements may burden speech, the Court contended they “impose no ceiling on campaign-related activities.” Dozens of state and federal courts, most notably the Supreme Court in Citizens United , have cited Buckley to sustain disclosure requirements.

But Justice Thomas in his partial dissent argued that “the disclosure, disclaimer, and reporting requirements” in the 2002 federal campaign-finance law that Citizens challenged are unconstitutional because Congress may not abridge the “‘right to anonymous speech’ based on the ‘simple interest in providing voters with additional relevant information.'” Highlighting the Prop. 8 reprisals, he explained that “disclaimer and disclosure requirements enable private citizens and elected officials to implement political strategies specifically calculated to curtail campaign-related activity and prevent the lawful, peaceful exercise of First Amendment rights.”

Further, “the Court’s promise that as-applied challenges will adequately protect speech is a hollow assurance. Now more than ever, [disclosure requirements] will chill protected speech because—as California voters can attest—’the advent of the Internet’ enables ‘prompt disclosure of expenditures,’ which ‘provide[s]’ political opponents ‘with the information needed’ to intimidate and retaliate against their foes.”

He concluded that “I cannot endorse a view of the First Amendment that subjects citizens of this Nation to death threats, ruined careers, damaged or defaced property, or pre-emptive and threatening warning letters as the price for engaging in core political speech, the primary object of First Amendment protection.” Mr. Eich, Q.E.D.

While Mr. Eich arguably has new grounds to mount an as-applied challenge to California’s disclosure rule, the courts can’t provide justice ex-post facto. His career at Mozilla is done. The ex-CEO’s crucifixion will also deter other ambitious business people from exercising their First Amendment rights by giving to controversial political causes. Justice Thomas was alone in flagging this “serious risk of chilling protected speech.” Maybe other justices will now heed his warnings.