Institute for Justice wins free speech cases elsewhere, while Nevada languishes

Would that Nevada had a few judges as perspicacious as ones found in Arizona and Mississippi.

While a Carson City judge was fining and penalizing a Virginia-based conservative group more than $100,000 for buying television commercials without first registering with the state and disclosing its donors and expenditures, judges in those states were declaring that their similar laws fail First Amendment muster.

Nevada law mandates that any group spending more than $100 to expressly advocate for a candidate or ballot issue must first register with the Nevada secretary of state, as reported in this week’s newspaper column, available online at The Ely Times and Elko Daily Free Press.

Anonymous speech that is banned in Nevada.

Attorneys for Alliance for America’s Future — which spent $189,223.50 airing a 30-second television commercial 320 times praising Brian Sandoval’s conservatism during the gubernatorial campaign of 2010 — argued that threshold is far too low to hold up under constitutional scrutiny.

Judge James Wilson rejected that argument, but attorneys for the Institute for Justice won two such cases within hours of each other in Arizona and Mississippi a month ago.

Mississippi’s threshold for having to register and report as a “political committee” was $200, twice Nevada’s. Five friends from Oxford, Miss., decided to join together and speak out in favor of a ballot initiative that would provide greater protection from eminent domain abuse.

Judge Sharion Aycock noted the courts have ruled there must be a point below which mandatory disclosure of campaign expenditures by incidental committees’ runs afoul of the First Amendment.

In the Arizona case a woman sent an email to a couple dozen friends and neighbors, inviting them to a protest against a $44 million road bond on the 2011 ballot. She promptly received a letter telling her to cease and desist until she registered as a political committee and filed all the paperwork to comply with state campaign finance laws.

Judge James Teilborg wrote: “In this case, it is not clear that even a campaign finance attorney would be able to ascertain how to interpret the definition of ‘political committee.’ As such, people of common intelligence must guess at the law’s meaning and will differ as to its application. Such vagueness is not permitted by the Constitution.”

He basically declared the whole law unconstitutional, not just the state’s $250 threshold.

Perhaps, the Alliance for America’s Future could invite the Institute for Justice to appeal Judge Wilson’s ruling to the state Supreme Court and reinstate the First Amendment in Nevada for everyone.

Read the entire column at the Ely or Elko site.

Campaign reporting requirements fall in other states, but not Nevada

The Institute for Justice won a Mississippi court case which allows such people to express their views without having to register with the state.

Would that Nevada had a few judges as perspicacious as ones found in Arizona and Mississippi.

While a Carson City judge was fining and penalizing a Virginia-based conservative group more than $100,000 for buying television commercials without first registering with the state and disclosing its donors and expenditures, judges in those states were declaring that similar laws fail to pass First Amendment muster.

Nevada law mandates that any group spending more than $100 to expressly advocate for a candidate or ballot issue must first register with the Nevada secretary of state.

Attorneys for Alliance for America’s Future — which spent $189,223.50 airing a 30-second television commercial 320 times praising Brian Sandoval’s conservatism during the gubernatorial campaign of 2010 — argued that threshold is far too low to meet constitutional scrutiny.

Judge James Wilson rejected that argument, but attorneys for the Institute for Justice — a civil liberties law firm that litigates for private property rights , economic liberty, free speech and school choice — won two such cases within hours of each other in Arizona and Mississippi in late September. Those cases were part of IJ’s Citizen Speech campaign, a multi-state effort to protect the right of groups to speak on important issues without getting tangled in state-contrived red tape and threatened with criminal prosecution.

Judge Wilson has argued that irreparable harm will befall voters if they are denied information about who is campaigning for what and with how much money, even though the nation’s Founders frequently published essays and pamphlets anonymously or under pseudonyms.

Mississippi’s threshold for having to register and report as a “political committee” was $200. Five friends from Oxford, Miss., decided to join together and speak out in favor of a ballot initiative that would provide greater protection from eminent domain abuse.

Judge Sharion Aycock noted in her opinion that the rationale for that state’s law was to inform voters as to who backs or opposes a given initiative financially, so that voters could see who stands to benefit. But she noted the courts have ruled there must be a point below which mandatory disclosure of campaign expenditures by incidental committees’ runs afoul of the First Amendment.

Judge Aycock wrote: “Turning to the case at hand, the Court finds that Mississippi’s requirements for groups raising or expending in excess of $200 are too burdensome. Even under the State’s now enunciated view of the regulatory scheme, as soon as informal associations in Mississippi accept or expend funds in excess of $200, they are compelled to form a political committee and file a statement of organization with the Mississippi Secretary of State. Having crossed that threshold,  the committee takes on monthly reporting obligations that are not extinguished until the committee no longer receives funds or makes expenditures.”

In the Arizona case a woman sent an email to a couple dozen friends and neighbors, inviting them to a protest against a $44 million road bond on the 2011 ballot. She promptly received a letter telling her to cease and desist until she registered a political committee and filed all the paperwork to comply with state campaign finance laws.

Judge James Teilborg called the state law “overbroad because it sweeps in a substantial amount of constitutionally protected speech without any sufficiently important governmental interest in regulating such speech.” He basically declared the whole law unconstitutional, not just the state’s $250 threshold.

“The burdens that laws like Mississippi’s and Arizona’s impose on grassroots groups are well documented,” writes Institute for Justice attorney Paul Avelar. “Indeed, the U.S. Supreme Court considers such laws so burdensome that it has equated them with a ‘ban on speech,’ even for well-funded corporations and unions.  Nevertheless, courts across the country routinely uphold these laws, leading to the absurd result that grassroots groups are subject to regulations considered unconstitutionally burdensome for General Motors or the AFL-CIO.”

Perhaps, the Alliance for America’s Future could invite the Institute for Justice to appeal Judge Wilson’s ruling to the state Supreme Court and reinstate the First Amendment in Nevada for everyone.

Newspaper column: Forcing group to reveal donors flies in the face of American tradition and philosophy

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.

AAF ad calling Sandoval a conservative (screen grab)

AAF ad calling Sandoval a conservative (screen grab)

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.

Read the entire column at Ely or Elko sites.

Judge orders Sandoval-backing group to pay fine, register with state

A Carson City judge on Monday 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.

Lawyer’s for the group — Alliance for America’s Future (AAF), which spent $189,223.50 airing television commercials in support of Brian Sandoval’s gubernatorial campaign in 2010 — had argued that the law is unconstitutional under the First Amendment, but primarily on the grounds that its $100 spending threshold was too low. They told the judge that the group had $7.8 million in donations in 2010 but only one Nevada donor.

Judge Wilson did not order the group to disclose all of its finances, only those related to Nevada, and his was dismissive of the group’s reported willingness to now reveal that one donor:

“In short, it is one thing to disclose promptly, when voters can use that information, it is another to disclose years after the election. If a group could hide its donors during the heat of the election, which undoubtedly is the time when the interest in disclosure is at its peak — and some groups’ interest in preventing disclosure for various political reasons is also at its peak — only to disclose long after the fact, this would encourage groups to resist and evade the law, rather than promptly disclose.”

He also 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 it is anonymous. They don’t need the state holding their hands. That is what the First Amendment is for.

Though various appellate courts and even the U.S. Supreme Court in Citizens United v. FEC have upheld such laws as constitutional, it is clearly an abridgment of free speech to force someone to surrender their right to anonymously speak out about elections, candidates and issues.

In May of 2010, the same judge, James Wilson, issued an injunction against AAF to halt the ads, but the group appealed to the Supreme Court, which determined the issue was moot, because the election was over. The case was remanded to Wilson.

At the time Wilson wrote:

“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.”

I responded in my newspaper column by quoting Justice Antonin Scalia in his Citizens United v. FEC concurrence:

“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.”

I also quoted Justice John Paul Stevens from McIntyre v. Ohio, in which a woman was fined $100 for distributing leaflets opposing a school tax levy — violating a state law prohibiting unsigned leaflets — in which he 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.”

I also quoted Justice Clarence Thomas’ dissent in Citizens on the topic of disclosure:

“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 earned a reply.

Free speech is a right, not a privilege that requires a permit.