Friday, June 05, 2015

NAACP v. Alabama Comes to Brazil

Citing a freedom of information request by local pro-Palestinian groups, a Brazilian dean is seeking to compile a list of all Israelis on his campus. His distributed flyer seeks "urgent dispatch of information on the possible presence of Israeli students or teachers". Jewish groups on campus have condemned the request as "a clearly discriminatory measure, done by a high-ranking official in the federal education system, and it should be dealt with the severity it merits." They contend it was incitement to illegal racial, ethnic, and/or national origin discrimination. My immediate thought was that, if the Dean gets in his list, will he wave it dramatically while declaring how "he has in his hand ...."?

That said, I have, obviously, no knowledge regarding the scope of Brazil's freedom of information rules or its relevant understanding of anti-discrimination law. I am struck nonetheless by its similarity to the landmark American case of NAACP v. Alabama, 357 U.S. 449 (1958). That case involved the state of Alabama, in the course of a legal dispute with the NAACP, seeking to compel the latter to produce its membership lists inside the state. The NAACP refused, claiming that the request would hamper its freedom of association rights.

NAACP was a scenario where abstract principles foundered on the reef of a concrete case. In the abstract, disclosure of information doesn't seem to be particularly scary (for example, much of campaign finance reform centers around requiring various groups and candidates to disclose their donors). But everyone knows why Alabama in 1958 wanted a list of local NAACP members, and those reasons were not salutary. The disclosure demand was part and parcel of a larger campaign of intimidation and suppression, and often violence, directed against civil rights activists in the state. And so the Court wrote:
It is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy may constitute as effective a restraint on freedom of association as the forms of governmental action in the cases above were thought likely to produce upon the particular constitutional rights there involved. This Court has recognized the vital relationship between freedom to associate and privacy in one's associations. When referring to the varied forms of governmental action which might interfere with freedom of assembly, it said in American Communications Assn. v. Douds: "A requirement that adherents of particular religious faiths or political parties wear identifying arm-bands, for example, is obviously of this nature." Compelled disclosure of membership in an organization engaged in advocacy of particular beliefs is of the same order. Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs.
The Court also addressed the counterargument that any violence or intimidation that ensued from its order would not be on their heads, but rather on the "private" citizens whose behavior obviously could not be attributed to the state:
It is not sufficient to answer, as the State does here, that whatever repressive effect compulsory disclosure of names of petitioner's members may have upon participation by Alabama citizens in petitioner's activities follows not from state action but from private community pressures. The crucial factor is the interplay of governmental and private action, for it is only after the initial exertion of state power represented by the production order that private action takes hold.
This is essentially the same case wherein public and private action intersect in pursuit of intimidation. "Freedom of information" is a laudable goal, but in this context it is incompatible with associational rights of marginalized minorities at significant risk of public and private harassment -- which, like in NAACP, everybody knows is the real goal of the request.

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