Secrets, Lies, and Disclosure

This symposium essay suggests that we can sometimes understand those who resist campaign disclosure or disclaimer requirements as interested in keeping a secret and occasionally even in telling a sort of lie about the source or intensity of support for a particular candidate or cause. Such secrets and lies threaten listeners’ autonomy interests when the speaker seeks to keep such secrets (and sometimes seeks to tell such lies) to enhance her ability to influence her listeners’ decisions. For these reasons, I suggest greater attention to the reasons speakers seek to keep secrets (or occasionally tell such lies) in assessing the First Amendment implications of disclosure and disclaimer requirements in a range of campaign, commercial, professional, and other contexts. As a doctrinal matter, such a focus might helpfully inform our choice of the appropriate level of scrutiny to be applied to such disclosures – for example, we might be less suspicious of disclosure requirements designed to protect listener autonomy than those motivated by other governmental purposes. Such a focus might also (or instead) help determine whether a contested disclosure requirement survives a specific level of review, depending on the justifications offered by both challenger and government. In short, this essay contends that disclosure and disclaimer requirements should be understood as least troubling for First Amendment purposes when applied to speakers who seek to keep secrets (or occasionally tell lies) to manipulate their listeners’ decision-making and thus threaten their autonomy