It drives me to distraction when smart lawyers try to peel away tiny layers of the law with a scalpel instead of bashing it with a sledgehammer.
It’s like quibbling over the infield fly rule instead arguing that the game you’re playing is football.
That’s what the attorney for Citizen Outreach did Monday before the Nevada Supreme Court. He argued that fliers sent out by the group in 2010 did not trip over the state law requiring “express advocacy” groups to file sending reports and disclose donors.
Attorney Allen Dickerson said fliers critical of then-Assemblyman/firefighter John Oceguera as a double-dipper and big spender did not contain the “magic words” that would trigger a legal requirement for disclosure. The “magic words” concept comes from the U.S. Supreme Court case of Buckley v. Valeo that held disclosure could be required if words such as “vote for” or “elect,” “support,” “cast your ballot for,” “Smith for Congress,” “vote against,” “defeat,” “reject” are used in the message.
Deputy Attorney General Kevin Benson, suing on behalf of Secretary of State Ross Miller, said the state law doesn’t require the use of “magic words” to trigger disclosure. He said the entire context of the communications should be examined to uncover intent.
NRS 294A.140 states that: “Every committee for political action, political party and committee sponsored by a political party which receives contributions in excess of $1,000 or makes an expenditure for or against a candidate for office or a group of such candidates. …” must file “The name and address of the contributor and the date on which the contribution was received must be included on the report for each contribution in excess of $1,000 and contributions which a contributor has made cumulatively in excess of $1,000 since the beginning of the current reporting period.”
The First Amendment says Congress shall make no law abridging free speech and free press. The 14th Amendment extends this prohibition to the states.
Thus, Buckely v. Valeo is the Supreme Court’s interpretation of how political speech can be abridged by requiring paperwork and forced disclosure of donors who would otherwise choose to remain anonymous.
The problem is: This is Nevada.
The Nevada Constitution in Article 1, Section 9 says: “Every citizen may freely speak, write and publish his sentiments on all subjects being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press.”
NRS 294 clearly restrains and abridges. End of argument. Buckley v. Valeo be damned.
You don’t need to turn Talmudic scholar and pore over the nuances for just how the Buckley court conjured up from the bottom of a top hat a handful of “magic words” that may be abridged under the First Amendment, any more than you would have to turn to U.S. high court rulings on the 16th Amendment to interpret how the Nevada Constitution bans an income tax.
But for the sake of argument, and that is what this is, the better U.S. Supreme Court case to cite, if you must, would have been McIntyre v. Ohio.
In 1988, Margaret McIntyre was fined $100 for distributing leaflets opposing a school tax levy at a public meeting in Westerville, Ohio. She had violated a state law prohibiting unsigned leaflets.
In declaring the Ohio law unconstitutional, 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.”
But that would be gilding the lily.
The words are clear and unambiguous — “no law shall be passed to restrain or abridge the liberty of speech or of the press” — and thus any state law that does so violates the state Constitution and is null and void from inception. A $10,000 fine is surely a restraint in any dictionary — arrest, barrier, bit, bondage, check, coercion, confinement, compulsion, constraint, control, curb, deterrence, discipline, duress, force, incarceration, inhibition, leash, limitation, manacle, order, prevention, prohibition, repression, restriction, shackle, suppression, tabu, trammel, etc.
This is not the first time free speech hating Ross Miller, who is running for attorney general of all things, has had groups prosecuted for speaking up.
Back in 2010 the target of the thought police was a Virginia-based organization called Alliance for America’s Future, which was running ads supportive of the candidacy of Republican gubernatorial candidate Brian Sandoval.
A sympathetic Carson City judge shook out the Bill of Rights and discovered within its folds some brand new rights never dreamt of by the Founders. As I wrote at the time, Judge James E. Wilson Jr. discovered the inalienable to not be duped.
“Nevadans have a right to know who is behind election advertising,” Judge Wilson explained to us peons who were under the mistaken impression that the Federalist and Anti-Federalist papers, as well as “Common Sense,” were penned anonymously. “Continued violation of the statutes and depriving Nevadans of information about who is behind its election advertising will cause irreparable harm as voting will be influenced by unknown persons and voters will not have, through the proper channel, i.e., the Secretary (of State) information they need to determine what weight to give the advertising. Compensatory relief cannot compensate for this type of harm.”
The judge flippantly dismissed all of the alliance’s arguments thusly:
“The first issue is whether the advertisement advocates expressly, the election of Brian Sandoval. It does. The second issue is whether the Secretary has established the necessary elements for a preliminary injunction. It has. The third issue is whether Alliance has shown NRS 294A.0055 is unconstitutional. It has not. The fourth issue is whether Alliance’s First Amendment rights are unconstitutionally chilled. They are not.”
Voters are simply incapable of judging for themselves whether countenance speech whose source is unspecified. If you need a permit to do something, it is not a right.
“The ad constitutes express advocacy or the functional equivalent of express advocacy, because it cannot be reasonably interpreted as anything other than an appeal to support Brian Sandoval,” Wilson wrote, paying no heed to U.S. Supreme Court Justice Clarence Thomas’ dissent in Citizens United v. FEC.
Justice Thomas exposed the illogical nature of the court’s half measure when it comes to free speech by non-candidates and their right to do so anonymously:
“Irony aside, the Court’s promise that as-applied challenges will adequately protect speech is a hollow assurance. Now more than ever, (the law) will chill protected speech because — as California voters can attest — ‘the advent of the Internet’ enables ‘prompt disclosure of expenditures,’ which ‘provide[s]’ political opponents ‘with the information needed’ to intimidate and retaliate against their foes. … Thus, ‘disclosure permits citizens … to react to the speech of [their political opponents] in a proper’ — or undeniably improper — ‘way’ long before a plaintiff could prevail on an as-applied challenge. …
“I cannot endorse a view of the First Amendment that subjects citizens of this Nation to death threats, ruined careers, damaged or defaced property, or pre-emptive and threatening warning letters as the price for engaging in ‘core political speech, the “primary object of First Amendment protection.”’ … Accordingly, I respectfully dissent …”
The Nevada Supreme Court will rule later on the Citizen Outreach overreach by Miller, but on what grounds? Will they rule for liberty or restraint and abridgement?