The Nevada Supreme Court made the right decision but for the wrong reason.
In the case of Citizen Outreach vs. State, the court ruled 5-2 a couple of weeks ago that the organization did not violate a 1997 law requiring those who engage in express advocacy to file paperwork with the secretary of state’s office revealing donors and expenditures.
The majority said the fliers mailed out by Citizen Outreach during the 2010 election season criticizing Assembly member John Oceguera for being a double-dipper — drawing pay as a North Las Vegas firefighter while serving in Carson City — did not contain the “magic words of express advocacy,” such as “vote for” or “vote against,” which would trigger the need to comply with the law.
The 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.
Nevada Supreme Court (R-J photo)
The ruling states, “Because it is undisputed that Citizen Outreach’s flyers do not contain magic words of express advocacy, the flyers were not subject to regulation under Nevada’s campaign practices statutes that were effective in 2010.”
The problem now is that in 2011 the Legislature rewrote the law so that it now states that express advocacy “means that a communication, taken as a whole, is susceptible to no other reasonable interpretation other than as an appeal to vote for or against a clearly identified candidate.”
The court majority noted that the secretary of state testified that the change would “make it clear that Nevada does not require” magic words for a communication to be express advocacy.
That makes the revised law highly subjective and subject to as many interpretations as there are people. It erases any bright line test.
The problem is that both the 1997 and the 2011 law blatantly violate both the First Amendment and the Nevada Constitution because they are not “content neutral” and address no “compelling government interest.”
In a similar case involving a Virginia-based organization that failed to file the proper paperwork with the state, Judge James E. Wilson Jr. stopped televised ads from being broadcast and said, “Nevadans have a right to know who is behind election advertising.”
There is no such right to know. The voters get to decide what communication is persuasive, whether the source of funding is revealed or not. The voters tell the government what to do, not the other way around.
Article 1, Section 9 of the Nevada Constitution states: “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.”
This law clearly restrains and abridges.
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 in any dictionary is a restraint.
In this day and age, donating to certain causes, such as the anti-gay marriage campaign in California, have resulted in threats, intimidation, boycotts and ruined careers.
Justice Clarence Thomas said in a dissent in Citizens United v. FEC, “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.”’
Just this past week a federal judge in California temporarily enjoined the state attorney general from enforcing a law similar to Nevada’s.
“Donors who have witnessed harassment of those perceived to be connected with plaintiff’s co-founders have experienced their unwillingness to continue to participate if such limited disclosure is made,” Judge Manuel Real wrote, adding that there is “sufficient evidence establishing that public disclosure would have a chilling effect on free speech.”
There is no constitutional authority for government to drag more information out of a speaker than the speaker wishes to convey, under the excuse that voters are just too darned stupid to evaluate anonymous speech for themselves. Compelled speech is not free speech.
The Legislature should repeal this law or someone should challenge the 2011 version of the law in the courts and make the right argument.
Free speech must be free of government restrictions, especially political speech.
A version of this column appears this week in the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.