Free speech is a right not a privilege

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.

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, 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 he 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,” Judge Wilson wrote. “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.”

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 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 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.

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.

In 2010, 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.”

But Justice John Paul Stevens in the case of 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 — wrote: “The State may, and does, punish fraud directly. But it cannot seek to punish fraud indirectly by indiscriminately outlawing a category of speech, based on its content, with no necessary relationship to the danger sought to be prevented. One would be hard pressed to think of a better example of the pitfalls of Ohio’s blunderbuss approach than the facts of the case before us.”

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.

Thomas Mitchell is a longtime Nevada newspaper columnist. You may email him at thomasmnv@yahoo.com. Read additional musings on his blog at http://4thst8.wordpress.com/