For those of you who haven’t been following the story, an Alaskan state legislator, Mike Doogan, revealed in an official newsletter sent to his constituents Friday the identity of an anonymous local blogger who was made famous by her criticisms of Sarah Palin during the 2008 presidential campaign season. This action was done in violation of the blogger’s First Amendment right to free speech and her right to speak anonymously without fear of government punishment or reprisal. For a full run-down, read my earlier post Alaska Lawmaker Violates Privacy of Famed Anonymous Blogger.
I spent a good part of my weekend writing letters to Alaska state legislators to highlight Mike Doogan’s shameful actions.
I just received a response from a member of the Alaska legislature’s Select Committee on Legislative Ethics, Rep. Berta Gardner:
Thank you for your letter. I’m not happy with Doogan right now and think his action was unnecessary and destructive. I don’t believe, however, that it is a violation of legislative ethics as described here:I thank Rep. Gardner for her thoughtful reply. Although I’m not familiar with Alaska ethics law, I wonder how a state legislator violating the First Amendment rights of a state citizen wouldn’t be actionable under the state ethics law. I will do some research and report back.http://www.touchngo.com/lglcntr/akstats/Statutes/Title24/Chapter60.htm
Surely someone has or will file an ethics complaint and the committee will investigate and make a determination.
Berta
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THE GRAPEVINE
> I wonder how a state legislator violating the First Amendment rights of a state citizen wouldn't be actionable under the state ethics law
I wonder how it could be actionable under any state's ethics law. I agree with Berta that Doogan's action was unnecessary and destructive, but I suspect any law against this (even one restricted to state officials) would be quickly struck down as itself unconstitutional.
The right to anonymity, as I understand it, means the state (or a party in civil court) doesn't have a right to force people to reveal others' identity. But someone finds out the identity of a writer who would prefer to remain anonymous, I don't expect there to be any law preventing them from revealing it. It seems just like the sort of first amendment-protected exposure that private investigators and paparazzi do all the time.
But you're the lawyer, not me, so maybe I'm missing something.
presumably, a legislator committing a serious felony would be grounds for a violation of a state ethics law. i would also assume that a state legislator violating the constitutional rights of a constituent (which, in many ways, is as bad or worse than committing a serious felony). these routes to an ethics violation would be considered a two-tier violation (first, Mr. X did a bad thing and then, second, doing that bad thing is deemed generally to be an ethics violation.
as to the constitutionality of it, the right to speak anonymously is looked on as the right to speak anonymously without fear that a government official will "out" you or subject you to other punishment or reprisal. if you think about it, it makes sense. if a person had a right to speak anonymously, but a government official could just use the powers of the state to find out your identity and the "out" you as retribution, the right wouldn't be worth much
> if you think about it, it makes sense. if a person had a right to speak anonymously, but a government official could just use the powers of the state to find out your identity and the "out" you as retribution, the right wouldn't be worth much
But that doesn't appear to be what happened here. If Doogan called up the local police chief and ask him to investigate the blogger's identity that would be one thing — using the powers of the state to violate her rights.
But if, say, a friend or acquaintance or even "some anonymous source" told him or he had dealings with her in the past and just put 2 and 2 together then it really doesn't seem like it could be illegal.
i had an extensive discussion about the difference between an illegal action and an unconstitutional action over at the post on mydd.com ( http://www.mydd.com/story/2009/3/28/151218/852 ).
you're right to an extent on your second point. if a private citizen were to out an anonymous blogger, this would not violate the first amendment. the first amendment only protects against state action. however, rep. mike doogan used his office to out this blogger using his official legislative newsletter to his constituents. this would be state action. in order to establish a violation of the constitution, you need to prove that a right exists, that the right was violated, and that state action was used to violate the right
Hmm, I was more concerned about how the information was obtained than how it was disseminated. If he'd posted the info to a personal blog would be that have been ok? (I figure other forms of dissemination would have been just as inconvenient for Mudflats — once it's out it's out, which is why I didn't focus on this)
I'm not sure information distributed in constituent newsletters counts as a state action, but that's definitely something for a lawyer to weigh on.
it would certainly be murky if he outed the blogger on his own time in a non-legislative source. it is the method of dissemination in this case that is problematic. he sends out a regular newsletter to his constituents, using his alaska legislature democratic caucus' email account, and the newsletter is currently posted on the homepage of the alaska legislature democratic caucus. in the newsletter, it identifies it as coming from him in his official capacity and prominently featured in the header banner is his state legislature address and contact information:
He will of course have some colorable arguments that he did this as a personal frolic. However, if the blogger sues, I think she will have a much stronger argument that he used the resources of his government office to violate her first amendment right to keep her identity secret.
> in the newsletter, it identifies it as coming from him in his official capacity and prominently featured in the header banner is his state legislature address and contact information: [...]
I'm still not sure how that makes it a state action. If he's sitting in his office and calls for pizza delivery, is that a state action? If he writes and sends a letter to a friend or acquaintance with the same exact contact information, is that a state action? If he sends an email to a constituent congratulating them on getting a blue ribbon in the state fair, is that a state action?
I would expect the legal definition of "state action" to be more stringent…like, holding hearings and stuff.
btw, check out this great article on the topic in street prophets: http://www.streetprophets.com/storyonly/2009/3/30…
I wonder if she means that it wouldn't be a serious enough sort of violation to have any meaningful consequences. It seems like once representatives get into office, it is fairly difficult to get rid of them.