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.