A Carson City judge this past week ordered a Virginia-based conservative group to pay a fine of $109,560, plus interest, plus attorney fees for violating a Nevada law that requires any group that engages in “express advocacy” in elections to register with the Secretary of State and report donors and expenditures, as reported in this week’s newspaper column, available online at The Ely Times and the Elko Daily Free Press.
Lawyer’s for the group — Alliance for America’s Future (AAF), which spent $189,223.50 airing a 30-second television commercial 320 times praising Brian Sandoval’s conservatism during the gubernatorial campaign of 2010 — had argued that the law is unconstitutional under the First Amendment.
They told the judge the group had only one Nevada donor.
The commercial clearly carried a disclaimer saying: “Paid for by Alliance for America’s Future.” It concludes with a still photo of Sandoval and the words: “Brian Sandoval. No tax increases. No government waste. Just Conservative.” It never expressly calls for viewers to vote for Sandoval.
The Judge James Wilson wrote of AAF’s protest of the size of the penalty, “No amount of civil penalties can redress the injury to Nevada voters caused by refusal to timely provide them with the information to which they are entitled, thus there is no adequate remedy at law.”
The adequate remedy is that voters can decide for themselves the merits of a communication and whether to discount it if donors remain anonymous. They don’t need the state forcibly outing contributors. The Founders often wrote anonymously or under pseudonyms because they did not want the message to be dismissed as self-serving.
Though various appellate courts and even the U.S. Supreme Court in Citizens United v. FEC have upheld laws such as Nevada’s as constitutional, it is clearly an abridgment of free speech to force people to surrender their right to anonymously express their views about elections, candidates and issues with donations to like-minded groups.
Justice Clarence Thomas’ dissent in Citizens United spoke directly to the topic of forcing people to reveal their identities as a prerequisite to speaking out about issues and candidates, saying such laws have spawned a cottage industry that uses forcibly disclosed donor information to intimidate, retaliate, threaten and boycott individuals and businesses with whom they disagree.
Thomas wrote: “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 …’”
An email to AAF asking whether the group would appeal has not garnered a reply.
Free speech is a right, not a privilege that requires prior government permission.