The First Amendment protects anonymous speech. This is especially true when that speech is controversial. When a citizen comments on an issue, but fears retribution from those who disagree, it is that citizen’s right to be free from the government publicly “outing” her identity. That’s something the Supreme Court has repeatedly recognized, from the NAACP not having to disclose its donors in 1950s Alabama, to anonymous pamphleteers remaining anonymous in the 1995 case McIntyre v. Ohio Elections Commission. These cases follow from the obvious proposition that disclosure chills speech.
The Minnesota Campaign Finance Board, unfortunately, has chosen the opposite view. The board had a long-standing policy of not requiring organizations who donate to ballot campaign committees (committees that spend money to support or oppose ballot issues) to disclose their donors. The organizations’ donations are already disclosed by the campaign committees they give to, but the donor—the organization—did not have to say where it got its money from.
Until now. The board just announced it will adopt a new approach where nonprofit corporations who donate over $5,000 to ballot campaign committees must disclose donors of over $1,000. It is not a coincidence that this accompanies a very controversial ballot issue that Minnesotans will vote on in the 2012 elections: whether to adopt a constitutional amendment limiting marriage to opposite-sex couples.
The rule will undoubtedly chill speech on both sides of the same-sex marriage debate. Many people may want to give to organizations who may in turn contribute to groups campaigning on the issue, but will chose not to because they don’t want their private political views broadcast on the internet (which is what disclosure means in this day-and-age).
What purpose does this rule serve? Voters can decide where they stand on the issue without knowing where others stand, and they have no more right to know who is financially backing speech about the amendment than they have a right to know which way anyone will vote on it. But that’s the whole point--outing people who disagree with you on the issue. Proponents of the disclosure law want to be able to demonize those on the other side, and they can’t do that without forcing them to disclose their identities.
Criticizing those who disagree with you is perfectly valid in a free society. What’s not is the government forcing people to disclose information, including their identities, that they’d rather keep private.
Today, the Institute for Justice secured a significant first-round victory in its challenge to a Washington law that crippled the ability of political novices to run effective campaigns to recall government officials.
The case involves retired naval officer Robin Farris, who recently launched a recall campaign against controversial Pierce County, Washington Assessor-Treasurer Dale Washam. But Farris ran headlong into the complexities and red tape of Washington's campaign finance laws.
Among those laws was Washington’s $800 limit on contributions to recall campaigns. This limit even extended to in-kind donations of legal services. Thus, even though attorneys Tom Oldfield and Jeff Helsdon of the firm Oldfield & Helsdon PLLC happily donated free legal assistance to Farris to help her navigate the complex law surrounding recall campaigns, Washington called their volunteer service a contribution and tried to fine Robin for accepting too much of their help.
For Farris, these limits could have doomed her efforts. Washington law actually requires all recall campaigns to first go to court—a process that can cost tens of thousands of dollars—before they may proceed. As a political novice with no established base of financial support, there was no way she could afford the cost of legal services or the cost of hiring signature gatherers to get her recall petition on the ballot. That’s why she joined with the Institute for Justice to fight these unconstitutional limits on grassroots political advocacy.
Now she’s one step closer to winning that fight.
This afternoon Judge Robert J. Bryan of the Federal District Court for the Western District of Washington granted a preliminary injunction freezing Washington’s contribution limits to recall campaigns and allowing Farris’ committee to go forward during the pendency of her lawsuit. Attorneys Oldfield and Helsdon will be permitted to donate their legal services, and contributors will be allowed to give her committee contributions of more than $800, allowing her to hire paid signature gatherers.
The ruling is notable for its extensive reliance on the Institute for Justice’s recent U.S. Supreme Court victory in Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, which Judge Bryan cited no less than five times. This is another example of how IJ’s strategic approach to litigation pays dividends in future cases, leading to big gains for individual rights.
Congratulations to Farris, Oldfield, Helsdon, and to all of my colleagues involved with the case.
Today the 8th U.S. Circuit Court of Appeals handed down a major victory for First Amendment rights in Neighborhood Enterprises v. City of St. Louis. The decision strikes down a St. Louis sign ordinance that the City had tried to use to silence an anti-eminent-domain activist.
IJ filed the case on behalf of Jim Roos and his nonprofit housing ministry, which works to provide housing for low-income residents of south St. Louis. Roos was a critic of the City’s use of eminent domain for private development. So with the approval of his tenants he painted a large mural on the side of one of his buildings, facing the interstate.
If Roos’ mural had depicted a “[n]ational, state, religious, fraternal, professional and civic symbol[ ] or crest[ ],” it would have been perfectly legal. But because Roos’ mural contained a message of political protest, the City concluded that it was an illegal sign and ordered him to paint over it.
Roos wasn’t going to give in, so he joined with IJ to fight for his First Amendment rights. And today the 8th Circuit handed him a victory, holding emphatically that government isn’t allowed to restrict speech based on its message.
The 8th Circuit’s ruling is more than just a victory for Roos—it reaffirms how important it is for judges to look beyond government assertions to see what’s really going on. When the 8th Circuit looked at the evidence, it found there was nothing to support the City’s discriminatory treatment of Roos’ political speech. That sort of careful analysis—which judges should undertake in every constitutional case—is the essence of principled judicial engagement.
Equally vital to IJ’s success in this case was Roos’ willingness to stand up for his rights and challenge the government in court. This is not easy to do, as IJ President Chip Mellor recently noted:
The financial and emotional costs of litigation are enormous burdens for ordinary people to bear in the midst of trying to live their lives. The legal process is overwhelming, disruptive and intimidating for people experiencing it for the first time. . . .
Thankfully though, there are heroic people across the nation who refuse to simply lay down. Typically, they have no legal training and have not read the Constitution, but they know at a very profound level that the principles at the heart of the American Dream are real and vital to their future. And so they go to court in the firm belief that those principles are worth vindicating no matter how hard that may be.
Congratulations to Jim Roos on a well-deserved victory. Thanks to his commitment and IJ’s legal advocacy, residents not just of Missouri, but also of Minnesota, Iowa, Arkansas, Kansas and the Dakotas (the seven states comprising the 8th Circuit) can now enjoy greater protection for their First Amendment rights.
Over the holiday weekend, James Taranto of The Wall Street Journal had a great column discussing Justice Kagan’s dissent in last week’s decision striking down Arizona’s so-called “Clean Elections” law. Here’s a snippet:
“The difficulty,” Kagan writes, “is in finding the Goldilocks solution--not too large, not too small, but just right.” Finding such solutions is the job of lawmakers, not judges: “Arizonans deserve the chance to reform their electoral system.” To sloganeer E.J. Dionne, that is an expression of judicial restraint. “Remember how sympathetic conservatives are supposed to be to the states as ‘laboratories of democracy,’ pioneering solutions to hard problems?” he grouses. “Tell that to the people of Arizona.”
But there’s a world of difference between judicial restraint and judicial dereliction of duty. James Madison was not Goldilocks, and the First Amendment says, “Congress shall make no law.” (That applies to the states as well, thanks to the doctrine of incorporation.) The court is obliged to strike down laws violating freedom of speech even if they were enacted with the best of intentions.
Make No Law readers may recall that my colleague Steve Simpson and I recently had an op-ed in The Wall Street Journal, discussing how comic-pundit Stephen Colbert's experience setting up a "Super PAC" had unintentionally demonstrated how many burdens on political speech still remain in the wake of Citizens United. In the video below, John Samples, the director of the Cato Institute's Center for Representative Government, discusses the results of Colbert's recent appearance before the Federal Election Commission and explains why the joke is still on Colbert:
IJ’s victory last Monday before the U.S. Supreme Court in our challenge to Arizona’s so-called “Clean Elections” law was a big win for people who believe that the First Amendment prohibits government from burdening spending on political speech. It was also a strong reaffirmation of the principle that “Individual freedom finds tangible expressionin property rights.” The First Amendment would be largely meaningless if government could impose burdens on the use of property—whether in the form of money, or computers, or newsprint and ink—to broadcast speech beyond the range of our individual voices.
The idea that money is often a critical component to the meaningful exercise of rights is hardly a modern insight. Our Founding Fathers were well aware of the connection between property and political advocacy. Indeed, this recognition is reflected in the closing words of the Declaration of Independence:
And for the support of this Declaration, with a firm Reliance on the Protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor.
Here’s wishing everyone a safe and happy Independence Day.
Monday’s Supreme Court decision on Arizona’s “Clean Elections” law reaffirms that the government may not burden a person’s speech by forcing them to choose between remaining silent or creating an advantage for their political opponent. Minnesota’s current public financing law appears to run afoul of the new ruling.
Minnesota caps candidate’s spending when she chooses to receive public money. But if she runs against an opponent who does not receive public money and who spends more than a government-approved amount on his political speech, then Minnesota lifts the publicly financed candidate’s spending limits, and allows her to still receive the public money.
For example, in last year’s gubernatorial contest, Tom Emmer received public financing and agreed to spending limits. But because his opponent, Mark Dayton, refused public dollars to fund his campaign, Emmer’s limits were lifted and he got to keep all the public money lavished on his campaign. Minnesota punishes traditionally funded candidates like Dayton for daring to exercise their right to freely engage in political speech. It does so when it triggers great financial benefits to government-funded candidates when they face candidates who opt only to receive voluntary, private contributions. Minnesota punished Dayton for speaking by allowing his political opponent to double dip on contributions—getting state money AND private contributions—as a direct consequence of his decision to speak.
Originally, Minnesota’s system, just like Arizona’s, included matching funds and burdens on independent groups, but those were declared unconstitutional in 1994. Minnesota’s system of allowing government-funded candidates to double dip into the political contribution well when their traditionally financed opponents choose to speak more than a government-prescribed amount is a practice that is bound to chill speech and remains constitutionally questionable..
The U.S. Supreme Court this morning handed down a 5-4 ruling in the consolidated cases Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett and McComish v. Bennett,striking down Arizona’s speech-squelching “Clean Elections” law. The majority opinion, written by Chief Justice Roberts, concluded:
Arizona’s program gives money to a candidate in direct response to the campaign speech of an opposing candidate or an independent group. It does this when the opposing candidate has chosen not to accept public financing, and has engaged in political speech above a level set by the State. The professed purpose of the state law is to cause a sufficient number of candidates to sign up for public financing, which subjects them to the various restrictions on speech that go along with that program. This goes too far; Arizona’s matching funds provision substantially burdens the speech of privately financed candidates and independent expenditure groups without serving a compelling state interest.
The Court also strongly rejected the idea that laws like Arizona’s could permissibly be used to “level the electoral playing field”:
“Leveling the playing field” can sound like a good thing. But in a democracy, campaigning for office is not a game. It is a critically important form of speech. The First Amendment embodies our choice as a Nation that, when it comes to such speech, the guiding principle is freedom—the “unfettered interchange of ideas”—not whatever the State may view as fair.
Here's a brief, three-minute video explaining how Arizona’s so-called “Clean Elections” law burdened free speech:
This is IJ’s fifth case before the Supreme Court and our fourth victory. IJ’s only loss before the Court came in Kelo v. City of New London, the infamous 2005 ruling that sparked a nationwide backlash resulting in 43 states enacting legislation to curtail eminent domain abuse.
The Institute for Justice is joined in this victory by the Goldwater Institute, which represented plaintiffs in the consolidated case McComish v. Bennett. Goldwater’s statements on today’s victory is available here.
We will continue updating this post throughout the day with links to early coverage of the Court’s ruling.