Keeping the lines straight on free expression is a constant battle. Government always strains to regulate it. Civil libertarians get nervous when it does. But there are no clear-cut lines. These groups sometimes take stances that can appear inconsistent.
In the post-Watergate period, the U.S. Supreme Court in Buckley vs. Valeo overturned new limitations on campaign expenditures, on independent expenditures by both individuals and groups, and on spending by a candidate from his or her personal funds. In effect, the court said that money is speech, a ruling that was extended three years ago in Citizens United v. Federal Election Commission to unleash corporations and their virtually unlimited money in the political arena. Civil libertarians were dismayed.
Here in Nevada a decade ago, the state had a law that curbed anonymous expression, a notion that would have interfered with many famous actions in U.S. history, from protests to printed broadsides, beginning with the Boston Tea Party. After an incident in Nevada of anonymous leafleting, Secretary of State Dean Heller and Attorney General Frankie Sue Del Papa tried to enforce the state law on grounds that disclosure opens elections and helps insure truthfulness. A local court agreed with them but the U.S. Court of Appeals for the Ninth Circuit overturned that ruling, upholding the sanctity of anonymous speech. By coincidence, a month later, the U.S. Supreme Court ruled in an Ohio case that the same thing applies to door-to-door solicitors. The immediate issue was religious solicitors, but presumably it also applies to commerce.
Last month another such issue came up. A group called Citizen Outreach, a front for the doings of a conservative activist named Chuck Muth, was fined by a local state judge for failing to file the required campaign disclosure reports after Muth sent out mailers attacking political candidate John Oceguera for receiving two public pensions.
Muth argues that the normal terms used in campaign materials, such as “Elect” or “Vote for” did not appear in his materials. He was, he says, trying to educate the public about what he calls “double dipping” and informing people that Oceguera supposed engaged in “sponsoring trivial bills, voting for tax hikes and enriching himself as a public employee.”
I’d rather be hung by my thumbs than support Muth. Because he confused the terms “evangelical” and “social conservative,” he once posted a blog item calling me a religious bigot.
But more is at issue here than Muth’s confused vitriol. The state is essentially arguing that there can be no such thing as issue advertising or educational material that touch political sensibilities. As just one example, I think of how hundreds of thousands of college students, after the terrible and lethal spring of 1970, went home from campuses to work against the war in Vietnam. Some of them signed up with candidates. But some of them worked on educating the public about the war and its rotten origins and distributing material on how public figures voted on the war. Should they have been thought of as fronts for political campaigns?
In the Muth case, the state is arguing that “there is no reasonable interpretation of these communications other than an appeal to vote for or against a clearly identified candidate on the ballot.” Well, I think of myself as a reasonable person, and I could easily place a different interpretation on the Muth materials.
Perhaps there is a better way of sorting out what is and is not candidate advocacy than the language test Muth uses. But if there is, the Nevada Legislature failed to prescribe it in the statute being used against Muth, and his language test IS the one used at the federal level. The state’s legislators need to take a closer look at this law and make it less vague and more workable. Using what officialdom considers a “reasonable interpretation” is not the way the force of law should be brought down on the heads of involved citizens.
Dennis Myers is an award winning journalist who has reported on Nevada’s capital, government and politics for several decades. He has also served as Nevada’s chief deputy secretary of state.