A victory for free speech is a victory, even if it is for the wrong reason.
Carson City Senor District Judge Robert Estes tossed a lawsuit from the Nevada Secretary of State against Americans for Prosperity nearly a month ago, saying the statute in question applies only to those spending money “on behalf” of a candidate, according to the AP.
The AFP — funded by conservative billionaires Charles and David Koch — sent out mailers in 2012 during the election campaign of Kelvin Atkinson for state Senate in 2012. Those mailers criticized Atkinson for co-sponsoring a 2011 renewable energy bill, AB416, It has been estimated the bill would have cost power customers as much as $1 billion in higher bills.
“There can be no argument whatsoever that the fliers were sent on behalf of Assemblyman Atkinson,” Estes wrote in his Oct. 17 ruling, but he the state’s claim that the meaning of “on behalf” is the same as “about” a candidate is a “strained argument.”
“Certainly many people benefited by mailing fliers, even the post office,” the judge wrote. “Simply because an entity may benefit from a political activity, it is not a given that the activity was done on the beneficiaries’ behalf.”
Secretary of State Ross Miller said he won’t appeal and noted he has prevailed in two similar cases.
“This court based its decision on a factual determination of a specific political mailer,” Miller told the AP. “The facts of each case are different and I don’t anticipate that this ruling will prevent us in any way from enforcing the rules moving forward.”
Of course the Las Vegas Review-Journal’s drooling liberal lapdog columnist Steve Sebelius doesn’t believe billionaires should allowed free speech and called on the state’s lawmakers to “revise the law to encompass all electioneering communications designed to influence the public in any way, and attach a requirement to report donations and expenditures. With the U.S. Supreme Court expanding the rights of corporations to influence elections, and the increasing use of nonprofits that can legally shield donors, it’s more important than ever that the people know who’s trying to buy their votes, and why.”
Of course this is palpable nonsense and contrary to the principles and actions of the Founders who often penned anonymous screeds. The voters are perfectly capable of using their own noggins to evaluate any message that reaches their ears. They do not need tax-funded protection against their own gullibility.
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, Supreme Court 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.”
In the Citizens United case — the case that Obama blasted the high court for in a State of the Union address with justices sitting in front of him — the court held that groups, corporations and unions may not be singled out and barred from spending their own money in support of or opposition to a candidate or a cause.
Justice Antonin Scalia explained in a 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.”
But in an inexplicable self-contradiction, the ruling let stand reporting and disclosure requirements similar to those in Nevada law. How can you remain anonymous if you must disclose?
But Justice Clarence Thomas, in a partial dissent, chided his comrades for this duplicity:
“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 …’ “
Free speech is a right, not a privilege that requires a permit or disclosure of identity. The entire Nevada law needs to be either repealed or declared unconstitutional. Abridging is abridging is abridging.
This law is a ass.
I wonder what R-J columnists would write if the Stephens family and Club for Growth started sending out political mailers without first paying homage to Ross Miller.
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.