Recently it was reported in the New York Times that a guy named Matzzie (who is an ultra-left activist and supporter of BHO for President) has started a group called "Accountable America" that is going to identify thru public records every conservative donor to a 527 group in this election and send them a letter suggesting their contribution might be illegal and they should contact the group they gave to for assurance of legality or ask for their money back.
I subscribe to an email blog for election lawyers and professors and there has been a lot of discussion of this over the past few days. To their credit, a couple of liberal law professors I know have taken the position that the Matzzie tactics are "McCarthyism" and wrong. But a number of the usual liberal law professors on the blog have taken the position that it is perfectly OK for Matzzie to send our his threatening letters to conservative donors, because it is just a part of preventing perceived corruption in the political process, whether or not the actions of the 527s are legal.
Because I thought readers would find it of interest, below are some excerpts from my recent post, on the election blog debunking the Obama supporters on the blog and articulating the view that the Mazzie letters are illegal and actionable as tortious inteference with donors rights to privacy and public participation. Rest assured, conservative donors, you have nothing to fear but fear itself!
"The logic of Professor Chamber, along with his colleagues Roland and Rose, once again entirely misses the constitutional point from the standpoint of the donor, whose privacy right is being compromised now by virtue of his/her public participation in the election process. In a very real sense, the intrusion of AccAm interferes with and discourages the constitutional right of the donor to participate in the public process, and it constitutes an intrusion upon the right to seclusion of the donor, which is legally constitutionally compromised only for the purpose of public disclosure of a donation.
Liberal jurists who support the First Amendment right to privacy for people who do socially challenging things in phone booths are hypocritical when some suggest that what AccAm is doing is constitutionally permissible. AccAm’s whole announced intention is to reduce and eliminate public participation of conservative donors in this election! There can be no other factual conclusion. AccAm’s activities are focused on interfering with rights guaranteed under the Federal Constitution and the U.S. civil rights act, and I can see a Federal civil rights class action brewing here as being not so extreme.
But getting back to the intrusion upon seclusion, let me give Professor Chambers a few cases to chew on.
The tort of "intrusion" is generally accepted at common law as "the right to be left alone." Donors do not give up this right just because they make a donation to a political party, or a contribution that is reported to the IRS or FEC. They still continue to possess a modicum of expectation of a right to privacy, (just like the guy in the rain coat in the phone booth has a guarantee of a degree of privacy in his "protected zone of seclusion").
The tort of intrusion is quite adequately discussed in Socialist Workers Party v. Atty. General (1986, SD NY) 642 F. Supp 1357, 1422, later op (SD NY) 666 F. Supp 621. The tort anticipates that no one can be left entirely alone by society, however, where the intrusion also involves an action threatening the exercise of additional constitutionally protected rights (such as association with and participation in the political process) and voting….well, you can see where I am going! There is a balancing and the scales tip in favor of the donor when the intrusion affects other constitutionally protect rights. See Restatement (Second) of Torts, section 46, comment e (1965) in its definition of "extreme and outrageous conduct." See, Section 2.3. The more a constitutionally tied right is affected, the less extreme and outrageous the conduct needs to be in order for the tort to occur.
AccAm’s actions are not comparable to the insensitive attempts of a collections agent to collect a debt over the telephone; or an "aggressive and possibly abrasive" single confrontation with a reporter; Machleder v. Diaz (1982, SD NY) 538 F. Supp. 1364, later proceeding 618 F. Supp 1367; or a distasteful advertisement mailed to the home, Perry v. Moskins Stores (1952, Ky) 249 SW2d 812; or a legitimate investigation of an insurance claim.
Rather AccAm’s publicly announced actions are far more akin to situations where tort liability for intrusion have been found actionable, such as the "campaign of intimidation" General Motors ran against Ralph Nader because of their interest in discouraging him from participating in the pubic process. Nader v. General Motors (1970) 25 NY2d 560. Liberal jurists probably agree that Nader had an actional tort against GM for GMs concentrated efforts to discourage his public participation. After all, Nader was found to have not given up his privacy just because, for instance, he was on the cover of Time magazine. As a class, don’t conservative donors have the same rights affected now by AccAm as Nader did by GM? Of course they do, but perhaps because "politics" is affecting the logic of some of the commenters on this thread, they just refuse to acknowledge it or put themselves in the shoes of the mostly mature donors to conservative causes that will surely be frightened and discouraged from further public participation by AccAm’s "campaign of intimidation." It is a shameful situation that liberal and conservative lawyers should be able to agree is intolerable."
James V. Lacy