If you plant ‘magic words,’ you’ll have to fight a giant — government bureaucracy

A Carson City judge on July 8 fined Citizen Outreach, conservative nonprofit group, $10,000, plus $7,600 in costs, for not filing campaign expense reports showing its source of funds and ordered the group to file such reports in 30 days.

In 2010 the group sent out mailers criticizing Assemblyman John Oceguera during his 2010 re-election campaign.

The complaint came from Secretary of State Ross Miller.

Anonymous speech that would be banned by Nevada law.

Chuck Muth, president of Citizen Outreach, told the Las Vegas Review-Journal the ruling was expected. “This ruling was by the same judge who had already ruled against us. We asked for reconsideration. He chose to stand by his original ruling. We will now weigh our legal options,” Muth said.

Miller argued the mailers constituted express advocacy “because there is no reasonable interpretation of these communications other than as an appeal to vote for or against a clearly identified candidate on the ballot.”

This is the old “magic words” test from Buckely v. Valeo in which the Supremes said laws could trump the Bill of Rights and restrict communications containing words of express advocacy of election or defeat, such as ‘‘vote for,’’ ‘‘elect,’’ ‘‘support,’’ ‘‘cast your ballot for,’’ ‘‘Smith for Congress,’’ ‘‘vote against,’’ ‘‘defeat,’’ ‘‘reject.’’

I did not realize the First Amendment said Congress shall make no laws abridging free speech unless the speech contains “magic words.”

This suit is similar to one brought by Miller in 2010 against Alliance for America’s Future for airing television commercials in support of gubernatorial candidate Brian Sandoval.

At the time, I wrote, “If you must obtain a government permit to do something, it is not a right, it is a privilege.”

In his restraining order against the Virginia-based Alliance, Judge James E. Wilson Jr. noted early voting was already under way and said, “Irreparable harm will occur to the voters and to the electoral process if broadcasting of the Ad is not enjoined, because voters are being deprived of the information to which they are entitled under Nevada law prior to casting their ballots.”

They are entitled to know who paid for the ads? Pay no mind to the fact the Federalist and Anti-Federalist Papers were written under pseudonyms.

Justice Antonin Scalia explained in a concurrence in the Citizens United case:

“The (First) Amendment is written in terms of ‘speech,’ not speakers. Its text offers no foothold for excluding any category of speaker, from single individuals to partnerships of individuals, to unincorporated associations of individuals, to incorporated associations of individuals — and the dissent offers no evidence about the original meaning of the text to support any such exclusion. We are therefore simply left with the question whether the speech at issue in this case is ‘speech’ covered by the First Amendment. No one says otherwise.”

In a partial dissent Justice Clarence Thomas added:

The disclosure, disclaimer, and reporting requirements in (the law) are also unconstitutional. …

“Congress may not abridge the ‘right to anonymous speech’ based on the ‘simple interest in providing voters with additional relevant information …'”

In a separate case out of Ohio, Justice John Paul Stevens wrote:

“Under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent. Anonymity is a shield from the tyranny of the majority. … It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation — and their ideas from suppression — at the hand of an intolerant society.”

The voters are the only ones to judge whether to be swayed by any given message and determine whether the message is any less believable because its source is anonymous.

For a thorough discussion of this topic, read Steven Miller’s three-part series, “R.I.P., Publius,” at Nevada Policy Research Institute — Part I, Part II, Part III.

37 comments on “If you plant ‘magic words,’ you’ll have to fight a giant — government bureaucracy

  1. Wendy Ellis says:

    Just to make sure (haha), I have reviewed the First Amendment to the US Constitution. Since it is not very long, I read through the entire US Constitution, and the Declaration of Independence (even though I had just attended a reading on 4-July). No mention of “magic words.” Perhaps they are “magic words,” because they are invisible! Like the Emperor’s New Clothes. Maybe these “magic words” were like rabbits pulled out of …a hat?

  2. Like the emperor’s new clothes. Another fable thrown in for good measure.


  3. nyp says:

    So you agree that they clearly broke the law. You just don’t like the particular law that they broke.

  4. The law is clearly unconstitutional.


  5. nyp says:

    So all laws that require disclosure of the source of campaign contributions are unconstitutional? Wow.

  6. Candidates should reveal sources. Citizens no.

  7. nyp says:

    I disagree with that, but you are already at odds with your original argument. If being forced to reveal the identity of those seeking to influence an election by making large campaign donations is “intimidating,” why is the intimidation any less if the disclosure is made by the candidate rather than by the donor.
    And which words in the First Amendment permit the legislature to force candidates to disclose the source of their contributions?

  8. “Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members …”

  9. nyp says:

    ah, cute.

  10. Ah, Constitution.

  11. nyp says:

    Not exactly. Your theory falls apart on several levels. Even if the “qualification of members” provision trumps the First Amendment, it only applies to the Senate and House. Does that mean that the First Amendment bars the legislature from requiring Presidential candidates from disclosing whether they have received campaign contribution from Solyndra or Reverend Wright or Acorn? And does it also mean that no candidate in any state election may be forced to disclose his campaign contributions?

    On the other side, if the rest of the Constitution is trumped by the “qualification of members” clause, does that mean that Harry Reid and the Democrats can bar from the Senate anyone elected whose campaign spending has exceeded some pre-set limit, or who has refused to accept public financing?

  12. nyp says:

    Cool. I’ll call his office and will suggest it. Do you have his number?

  13. Steve says:

    I asked for Senator Reid’s phone number recently, this is the number they told me to call;


    It didn’t work for some reason.

  14. Yes.


  15. Anonymous says:

    We have a right to free speech, but I don’t believe that includes a right to anonymity.

  16. Rincon says:

    Oops, sorry. I’m anonymous.

  17. Vernon Clayson says:

    Probably not odd that nyp mentioned Solyndra, “Reverend Wright, and ACORN, great examples of progressive actions and individuals.

  18. Milty says:

    Since Rincon doesn’t believe in “a right to anonymity,” can Mr. Mitchell give the rest of us his/her real name, address, etc?

  19. That is up to Rincon.


  20. Milty says:

    How about it, Rincon, are you ready to give up your anonymity?

  21. Thomas Mitchell says:

    D’oh. I just noticed this was posted anonymously: “We have a right to free speech, but I don’t believe that includes a right to anonymity.”

  22. nyp says:

    Giving up anonymity in order to post comments on some guy’s blog? I don’t think so.

    Giving up anonymity in order to spend millions of dollars influencing the course of democratic elections? OK with me.

  23. Not OK by the First Amendment.

  24. nyp says:

    You must also believe that it violates the First Amendment to force lobbyists to file public registration statements.

  25. Something to ponder. What’s a lobbyist?


  26. nyp says:

    At the federal level, “any individual who is employed or retained by a client for financial or other compensation for services that include more than one lobbying contact, other than an individual whose lobbying activities constitute less than 20 percent of the time engaged in the services provided by such individual to that client over a six month period.”
    2 U.S.C. § 1601

  27. Rincon says:

    I like my anonymity. If you knew what a dope I really am, you might not talk to me anymore 🙂

    My point wasn’t that there should not be any anonymity, but that the Constitution does not guarantee it. Limits on free speech usually occur when the exercise of it may harm others. A con man is not allowed to lie in order to swindle people, for example. In the case of elections, voting in ignorance can harm people in many ways. My example of the drug cartel buying votes in a local election is a good example. Media ads aren’t just speech. They’re giant megaphones allowing the broadcaster to outshout other viewpoints. Although we don’t insist on a level playing field, any playing field should at least be level enough to stand up.

  28. Congress shall make no law abridging free speech. Period.

    Fraud is a crime punishable after the fact. No law should “prevent” fraud or political corruption by limiting free speech. I know a lot of liberals who vote in ignorance.


  29. nyp says:

    Very well, then. You believe the laws requiring Congressional lobbyists to register and file disclosure forms is unconstitutional.

    Similarly, you believe that laws designed to bar show where George Soros might be spending hundreds of millions of dollars to influence American elections are also unconstitutional.

    I happen to disagree.

  30. Rincon says:

    If you’re right about Congress not being allowed to limit free speech, then Edward Snowden has nothing to be worried about and Aldrich Ames never should have been jailed.

    There are plenty of laws that “prevent” problems and prescribe penalties even when no harm is done. Do you believe drunk drivers should be arrested only after they kill someone? All Penalties are designed to prevent some kind of behavior. If they don’t, what would be the point?

  31. […] 2013 the group was fined $10,000 plus $7,600 in costs by Carson City District Judge James Todd Russell for failing to report the […]

  32. […] 2013 the group was fined $10,000 plus $7,600 in costs by Carson City District Judge James Todd Russell for failing to report the source of the […]

  33. […] 2013 the group was fined $10,000 plus $7,600 in costs by Carson City District Judge James Todd Russell for failing to report the source of the […]

  34. […] 2013 the group was fined $10,000 plus $7,600 in costs by Carson City District Judge James Todd Russell for failing to report the source of the […]

  35. […] ruling overturned a summary judgment by Carson City District Judge James Todd Russell, who fined the group $10,000 plus $7,600 in costs in 2013. (In a bizarre twist, the court first reported that case was […]

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