Will: The Judiciary And Free Speech

“The First Amendment does not permit laws that force speakers to retain a campaign finance attorney, conduct demographic marketing research, or seek declaratory rulings before discussing the most salient political issues of our day.” — U.S. Supreme Court, Citizens United (2010)

Brick by brick, judges are dismantling the wall of separation that legislators have built between political activity and the First Amendment’s protections of free speech and association. The latest examples, from Mississippi and Arizona, reflect the judiciary’s proper engagement in defending citizens from the regulation of political speech, a.k.a. “campaign finance reform.”

In 2011, a few like-minded friends and neighbors in Oxford, Miss., who had been meeting for a few years to discuss politics, decided to work together to support passage of an initiative amending Mississippi’s Constitution. The amendment, restricting the power of the state and local governments to take private property by eminent domain, was provoked by the U.S. Supreme Court’s 2005 Kelo ruling that governments could, without violating the Fifth Amendment (“nor shall private property be taken for public use, without just compensation”), take property for the “public use” of transferring it to persons who would pay more taxes to the government.

The Mississippi friends and neighbors wanted to pool their funds to purchase posters, fliers and local newspaper advertising. They discovered that if, as a group, they spent more than $200 to do these simple things, they would be required by the state’s campaign finance law to register as a “political committee.” And if, as individuals, any of them spent more than $200 supporting the initiative, they must report this political activity to the state.

Mississippi defines a political committee as any group of persons spending more than $200 to influence voters for or against candidates “or balloted measures.” Supposedly, regulation of political activity is to prevent corruption of a candidate or the appearance thereof. How does one corrupt a “balloted measure”?

Granted, there is some slight informational value in knowing where money supporting a voter initiative comes from. But surely not enough to burden ordinary citizens expending $200 with monthly reporting requirements, concerning which legal advice might be necessary because any violation of the campaign regulations “is punishable by imprisonment in the county jail” for up to a year. As the Supreme Court said in its excellent Citizens United ruling, “Prolix laws chill speech for the same reason that vague laws chill speech: People ‘of common intelligence must necessarily guess at [the law’s] meaning and differ as to its application.’ ”

So, the U.S. District Court for the Northern District of Mississippi held: “Where, as here, potential speakers might well require legal counsel to determine which regulations even apply, above and beyond how to comport with those requirements, the burdens imposed by the state’s regulations are simply too great to be borne by the state’s interest in groups raising or expending as little as $200.” And the same is true regarding “the state’s informational interest in individual speakers” expending $200.

When, in 2011, Dina Galassini of Fountain Hills, Ariz., wanted to oppose her city’s plan to augment its spending with a $29.6 million bond issue, she sent e-mails encouraging 23 friends and acquaintances to write letters of opposition to newspapers and to join her in a demonstration. Six days later, the town clerk sternly admonished her: “I would strongly encourage you to cease any campaign-related activities until the requirements of the law have been met.”

Arizona’s law says that whenever two or more people collaborate, using at least $250, to influence voters about anything, they instantly become a “political committee,” a magical transformation that triggers various requirements — registering with the government, filling out forms, and establishing a bank account for the “committee” even if it has no intention of raising money. All this must be done before members of the “committee” are permitted to speak. Galassini got no response when she wrote to the clerk to find out if she could have permission to e-mail the 23 persons to tell them the demonstrations were canceled.

The U.S. District Court for the District of Arizona supported Galassini. It had to, given that Citizens United said laws requiring official permission to speak “function as the equivalent of prior restraint by giving the [government] power analogous to licensing laws implemented in 16th- and 17th-century England, laws and governmental practices of the sort that the First Amendment was drawn to prohibit.”

Liberals who love the regulatory state loathe Citizens United. You can understand why.

George Will’s email address is georgewill@washpost.com.

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