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Opinion: Nevada Supreme Court Has Chance to Uphold Free Speech

It drives me to distraction when smart lawyers try to peel away tiny layers of the law with a scalpel instead of bashing it with a sledgehammer.

That’s what the attorney for Citizen Outreach did recently before the Nevada Supreme Court. He argued that fliers sent out by the group in 2010 did not trip over the state law requiring “express advocacy” groups to file spending reports and disclose donors.

In 2013 the group was fined $10,000 plus $7,600 in costs by Carson City District Judge James Todd Russell for failing to report the source of the donors for the expense of the fliers.

Attorney Allen Dickerson said fliers critical of then-Assemblyman/firefighter John Oceguera as a double-dipper and big spender did not contain the “magic words” that would trigger a legal requirement for disclosure. The “magic words” concept comes from the U.S. Supreme Court case of Buckley v. Valeo that held disclosure could be required if words such as “vote for” or “elect,” “support,” “cast your ballot for” are used in the message.

Deputy Attorney General Kevin Benson, suing on behalf of Secretary of State Ross Miller, said the state law doesn’t require the use of “magic words” and the entire context should be examined for intent.

Nevada Revised Statute 294A.140 requires anyone who spends a certain amount of money for or against a candidate to file with the secretary of state the names and addresses of contributors.

The First Amendment says Congress shall make no law abridging free speech and free press. The 14th Amendment extends this prohibition to the states.

Thus, Buckely v. Valeo is the Supreme Court’s interpretation of how political speech can be abridged by requiring paperwork and forced disclosure of donors who would otherwise choose to remain anonymous.

But this is Nevada and we have our own Constitution in which Article 1, Section 9 says: “Every citizen may freely speak, write and publish his sentiments on all subjects being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press.”

NRS 294 clearly restrains and abridges. Buckley v. Valeo is irrelevant.

You don’t need to turn Talmudic scholar and pore over the nuances for just how the Buckley court conjured up from the bottom of a top hat a handful of “magic words” that may be abridged under the First Amendment, any more than you would have to turn to U.S. high court rulings on the 16th Amendment to interpret how the Nevada Constitution bans an income tax.

The words are clear and unambiguous — “no law shall be passed to restrain or abridge the liberty of speech or of the press” — and thus any state law that does so violates the state Constitution and is null and void from inception. A $10,000 fine in any dictionary is a restraint — barrier, check, coercion, compulsion, constraint, control, curb, deterrence, duress, force, inhibition, limitation, manacle, prevention, prohibition, repression, restriction, suppression, etc.

This is not the first time free-speech-hating Ross Miller, who just lost an election bid for state attorney general of all things, has had groups prosecuted for speaking up.

Back in 2010 the target of the thought police was a Virginia-based organization called Alliance for America’s Future, which was running ads supportive of the candidacy of Republican gubernatorial candidate Brian Sandoval.

A sympathetic Carson City judge shook out the Bill of Rights and discovered within its folds some brand new rights never dreamt of by the Founders. Judge James E. Wilson Jr. discovered the inalienable right to not be duped.

“Nevadans have a right to know who is behind election advertising,” Judge Wilson explained to us peons who were under the mistaken impression that the Federalist and Anti-Federalist papers, as well as “Common Sense,” were penned anonymously. “Continued violation of the statutes and depriving Nevadans of information about who is behind its election advertising will cause irreparable harm as voting will be influenced by unknown persons and voters will not have, through the proper channel, i.e., the Secretary (of State) information they need to determine what weight to give the advertising. Compensatory relief cannot compensate for this type of harm.”

Apparently there is a right to drag more information out of a speaker than the speaker wishes to convey, because voters are too stupid to evaluate anonymous speech for themselves. Compelled speech is not free speech.

So, the final authority in Nevada should be the state’s own Constitution, but, for sake of argument, and that is what this is, let’s turn to a better U.S. Supreme Court case to cite, if you insist, which would be McIntyre v. Ohio.

In 1988, Margaret McIntyre was fined $100 for distributing leaflets opposing a school tax levy at a public meeting in Westerville, Ohio. She had violated a state law prohibiting unsigned leaflets.

In declaring the Ohio law 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.”

Then there is U.S. Supreme Court Justice Clarence Thomas’ dissent in Citizens United v. FEC.

Justice Thomas exposed the illogical nature of the court’s half measure when it comes to free speech by non-candidates and their right to do so anonymously:

“Irony aside, the Court’s promise that as-applied challenges will adequately protect speech is a hollow assurance. Now more than ever, (the law) will chill protected speech because — as California voters can attest — ‘the advent of the Internet’ enables ‘prompt disclosure of expenditures,’ which ‘provide[s]’ political opponents ‘with the information needed’ to intimidate and retaliate against their foes. … Thus, ‘disclosure permits citizens … to react to the speech of [their political opponents] in a proper’ — or undeniably improper — ‘way’ long before a plaintiff could prevail on an as-applied challenge. …

“I cannot endorse a view of the First Amendment that subjects citizens of this Nation to death threats, ruined careers, damaged or defaced property, or pre-emptive and threatening warning letters as the price for engaging in ‘core political speech, the “primary object of First Amendment protection.”’ … Accordingly, I respectfully dissent …”

The Nevada Supreme Court will rule later on the Citizen Outreach overreach by Miller, but on what grounds? Will they rule for liberty or restraint and abridgement?

(For a thorough discussion of this topic, read Steven Miller’s three-part series, ”R.I.P., Publius,” at Nevada Policy Research Institute — Part IPart IIPart III.)

(A version of this column appeared recently in The Ely Times, Eureka Sentinel, Mineral County Independent-News, Lincoln County Record, the Elko Daily Free Press and the Mesquite Local News. Mitchell also blogs at 4TH ST8.)

Thomas Mitchell

Thomas Mitchell is a former newspaper editor who now writes conservative/libertarian columns for weekly papers in central Nevada and blogs at http://4thst8.wordpress.com/ Twitter: @thomasmnv

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