A victory for free speech is a victory, even if it is for the wrong reason.
Carson City Senior District Judge Robert Estes in October tossed out a lawsuit from the Nevada Secretary of State against Americans for Prosperity (AFP), saying the statute in question applies only to those spending money to expressly support or oppose a candidate.
The AFP — funded by conservative billionaires Charles and David Koch — sent out three mailers in 2012 during the election campaign of Kelvin Atkinson for state Senate. Those mailers criticized Atkinson for co-sponsoring a 2011 renewable energy bill, AB416. The mailers claimed passage of the bill would cost electricity customers as much as $1 billion in higher rates. All the mailers urged voters to call Atkinson and “Tell him it is time to represent Nevada working families.”
The mailers never mentioned the election.
Nevada law requires groups who spend money and solicit contributions on behalf of a candidate to register with the Secretary of State and to report contributions and expenditures. AFP did neither.
That law also states: “’Advocates expressly’ or ‘expressly advocates’ 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 … A communication does not have to include the words ‘vote for,’ ‘vote against,’ ‘elect,’ ‘support’ or other similar language …”
Judge Estes found the message in the mailers failed to meet the criteria in the law. “In short, reasonable minds could absolutely decide that the flyers are anti AB416, special interests and lobbyists,” the judge wrote. “There is no unmistakable, unambiguous, suggestive of only one plausible meaning message to affect the outcome of an election, ie. defeat Mr. Atkinson or elect someone else.”
Secretary of State Ross Miller said he won’t appeal and noted he has prevailed in two similar cases, though both are on appeal.
“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.”
Assorted news media pundits immediately harangued against the outcome and called on the Legislature to revise the law to encompass all electioneering designed to sway the voters in any way whatsoever so everyone can see who is trying to “buy” votes by sending out mailers or by buying advertising or commercials.
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.
The law should not be revised but repealed. It is a clear violation of the First Amendment prohibition against abridging free speech or press. Requiring registration with the state and the filing of reports indeed does abridge.
Such mailers are clearly protected free speech, even if they are distributed anonymously. The Supreme Court in 1988 found an Ohio law prohibiting unsigned leaflets 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.” Voters don’t need state protection.