Disclosure and its Discontents
19 Pages Posted: 23 May 2012
Date Written: May 1, 2012
Disclosure of information causes trouble under multiple First Amendment paradigms. Although First Amendment doctrine favors purpose inquiries over effects tests, courts nevertheless have scrutinized disclosure regulations for their effects on free association. And although the First Amendment favors categorization over ad hoc balancing, the tension between disclosure of information and respect for free association has always been a matter of balancing. Under two different First Amendment paradigms, then, disclosure turns up on the “wrong” side.
This essay challenges these conclusions in two ways. First, a small but important part of First Amendment disclosure law should be understood as a categorical rule against a certain type of government purpose. In particular, the foundational cases in this area — the McCarthy-era disclosure cases and NAACP v. Alabama ex rel. Patterson — involve this type of suspect purpose. Second, although the remainder of First Amendment disclosure law does involve effects- and balancing-tests, the bad reputation of these methods is to some extent undeserved. In fact, disclosure presents a particularly compelling challenge to the disfavored status of effects and balancing. Ultimately, disclosure is properly about both categorization and balancing, both purpose and effects.
Keywords: First Amendment, disclosure, freedom of association, categorization, balancing, purposivism
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