Newspaper column: State Constitution does not allow laws regulating political speech

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.

Nevada Supreme Court rules too narrowly in free speech case

Nevada Supreme Court

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 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. (In a bizarre twist, the court first reported that case was affirmed 5-2, but the ruling and dissents contained identical language. The court blamed a clerical error. This turn of events practically gave Citizen Outreach head honcho Chuck Muth whiplash.)

The corrected ruling stated:

“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.

“Accordingly, we ORDER the judgment of the district court REVERSED.”

The problem now is that in 2011 the Legislature rewrote the law to remove the question of whether “magic words” — a silly creation of the U.S. Supreme Court — and state 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.

The problem is not with magic words. 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 curtailing free speech by requiring revealing donors and expenditures under penalty of $10,000 fines.

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. … 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.”

There is no such right to know. A compelling government interest might be public safety, but not whether voters must be told who is donating to a given cause. 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.”

NRS 294 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 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 — similar to unrevealed donors, don’t you think?

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.”

The Federalist and Anti-Federalist papers, as well as “Common Sense,” were all penned anonymously. The former to avoid clouding the message about the new Constitution with personalities, but the latter to avoid being hanged for treason.

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.”’

As I said, the Nevada high court made the right decision but for the wrong reason. The law itself should have been declared unconstitutional.

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.

 

There is the scent of schadenfreude in the air as Ralston TV show goes dark — bridge burning to follow

I’m sure there are more than a few people out there today who are feeling a bit of schadenfreude.

That is one of Jon Ralston’s favorite words. He uses it all the time. It is the pleasure one derives from the misfortunes of others. It is German for “harm-joy.”

Jon Ralston

Ralston’s TV gabfest goes off the air on Dec. 12. Channel 3’s new owners apparently have other plans for the little watched time slot. Ralston now adds former TV pundit to his resume, which already includes former Review-Journal reporter and columnist, as well as former Las Vegas Sun columnist.

The Las Vegas newspaper account of this appropriately referred to the show as his bully pulpit. The sources Ralston could not develop by trading favors, he got by bullying, threatening and browbeating. I’ve heard him.

“His website, ralstonreports.com, offers a daily mix of tidbits about Nevada’s political scene, often delivered with acerbic personal attacks and name-calling, but sometimes injected with levity,” the R-J account of his departure says. “He recently called the activist group Citizen Outreach ‘Citizen Outhouse clowns’ and called conservative Republican legislators a ‘gang of loons.'”

Some might call that sophomoric.

The clowns at Citizen Outhouse return the favor:

Ralston Reports, the little-watched left-wing public affairs show originating out of KSNV Channel 3 in Las Vegas, was cancelled today.  The last show for the man who never met a bridge he didn’t burn will be on December 12^th.

Watch parties for the defrocked TV pundit’s last hurrah are being organized as we speak.

The over-under for when Ralston will start trashing KSNV and its new owners after his swan song has been set at 48 hours.

Defrocked was the word Ralston frequently used when deriding his former, also now former, supervisors at the R-J. He also cast aspersions on the publisher of the Sun after his exit, as well as everyone else.

The tune “Always Burning Bridges” will be in my head all day.

 

Newspaper column: Court need only read the Nevada Constitution to find grounds for free speech

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.

That’s what the attorney for Citizen Outreach did recently 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 spending reports and disclose donors, as recounted in this week’s newspaper column available online at The Ely Times, the Elko Daily Free Press and the Mesquite Local News.

In 2013 the group was fined $10,000 plus $7,600 in costs by Carson City District Judge James Todd Russell for failing to report the source of the donors for the expense of the fliers.

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” 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” and the entire context should be examined for intent.

Nevada Revised Statute 294A.140 requires anyone who spends a certain amount of money for or against a candidate to file with the secretary of state the names and addresses of contributors.

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.

But this is Nevada and we have our own Constitution in which 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. Buckley v. Valeo is irrelevant.

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.

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 — barrier, check, coercion, compulsion, constraint, control, curb, deterrence, duress, force, inhibition, limitation, manacle, prevention, prohibition, repression, restriction, suppression, etc.

This is not the first time free-speech-hating Ross Miller, who just lost an election bid for state 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. Judge James E. Wilson Jr. discovered the inalienable right 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.”

Apparently there is a right to drag more information out of a speaker than the speaker wishes to convey, because voters are too stupid to evaluate anonymous speech for themselves. Compelled speech is not free speech.

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?

We don’t need no U.S. Supreme Court quibbling, we’ve got the Nevada Constitution, Mr. Miller

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.

In 2013 the group was fined $10,000 plus $7,600 in costs by Carson City District Judge James Todd Russell for failing to report the source of the donors for the expense of the fliers.

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?

(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.)

 

 

 

 

 

 

If you plant ‘magic words,’ you’ll have to fight a giant — government bureaucracy

A Carson City judge on July 8 fined Citizen Outreach, conservative nonprofit group, $10,000, plus $7,600 in costs, for not filing campaign expense reports showing its source of funds and ordered the group to file such reports in 30 days.

In 2010 the group sent out mailers criticizing Assemblyman John Oceguera during his 2010 re-election campaign.

The complaint came from Secretary of State Ross Miller.

Anonymous speech that would be banned by Nevada law.

Chuck Muth, president of Citizen Outreach, told the Las Vegas Review-Journal the ruling was expected. “This ruling was by the same judge who had already ruled against us. We asked for reconsideration. He chose to stand by his original ruling. We will now weigh our legal options,” Muth said.

Miller argued the mailers constituted express advocacy “because there is no reasonable interpretation of these communications other than as an appeal to vote for or against a clearly identified candidate on the ballot.”

This is the old “magic words” test from Buckely v. Valeo in which the Supremes said laws could trump the Bill of Rights and restrict communications containing words of express advocacy of election or defeat, such as ‘‘vote for,’’ ‘‘elect,’’ ‘‘support,’’ ‘‘cast your ballot for,’’ ‘‘Smith for Congress,’’ ‘‘vote against,’’ ‘‘defeat,’’ ‘‘reject.’’

I did not realize the First Amendment said Congress shall make no laws abridging free speech unless the speech contains “magic words.”

This suit is similar to one brought by Miller in 2010 against Alliance for America’s Future for airing television commercials in support of gubernatorial candidate Brian Sandoval.

At the time, I wrote, “If you must obtain a government permit to do something, it is not a right, it is a privilege.”

In his restraining order against the Virginia-based Alliance, Judge James E. Wilson Jr. noted early voting was already under way and said, “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.”

They are entitled to know who paid for the ads? Pay no mind to the fact the Federalist and Anti-Federalist Papers were written under pseudonyms.

Justice Antonin Scalia explained in a concurrence in the Citizens United case:

“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.”

In a partial dissent Justice Clarence Thomas added:

“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 …'”

In a separate case out of Ohio, 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.”

The voters are the only ones to judge whether to be swayed by any given message and determine whether the message is any less believable because its source is anonymous.

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.