Political speech enjoys special protection under the First Amendment because democracy cannot survive if government has the power to limit expression of high public interest and social concern.
But that doesn’t stop elected officials from attacking political speech that targets them or their interests. Because they’re always focused on their next election, they consider all political speech to be campaign speech that’s subject to disclosure requirements and fundraising limits. In other words, they want their opponents flushed out and put on a leash.
Last week, the Nevada Supreme Court issued an important defense of the First Amendment and a clear reminder to officeholders that political speech and campaign speech are not one and the same, and that political speech doesn’t require registration with the state.
In a 5-2 ruling that reversed a lower court decision, the Supreme Court held that a 2010 flier produced by conservative nonprofit Citizen Outreach targeting then-Asssemblyman John Oceguera did not urge voters to support him or his opponent, and therefore did not require the organization to register with the secretary of state’s office and disclose its donors.
Then-Secretary of State Ross Miller, who like Mr. Oceguera was a Democrat, had insisted that under state law, all third-party groups engaged in political expression in Nevada must first register and submit reports detailing their expenses and donors’ information. Mr. Miller’s position was at odds with U.S. Supreme Court precedent, which exempts such groups from disclosure requirements if they do not issue “express advocacy,” meaning a clear call to vote for or against someone.
The Citizen Outreach flier attacked Mr. Oceguera’s legislative record and the fact that he simultaneously collected his legislative salary and a North Las Vegas Fire Department salary, but it did not tell voters to support either of his opponents in the 2010 election. It suggested that people should contact Mr. Oceguera and, essentially, tell him to make better decisions.
Elections are not the only way for voters to express support or dissatisfaction with an elected official. Representatives can be convinced to change their positions if they know the temperature of their constituents.
If we are not free to anonymously, ruthlessly criticize our government and the people who oversee it — whether from our couches, through our social media accounts or via the purchase of TV and radio advertisements — we are not free at all.
Democrats are especially fond of attacking political speech that isn’t subject to disclosure rules — to say nothing of the U.S. Supreme Court decisions that have strengthened the First Amendment and ended some spending restrictions. They call it “dark money.” But they aren’t interested in complete transparency out of principle. They want to intimidate conservative groups that lawfully engage in anonymous political speech, with the ultimate goal of suppressing such expression by scaring off donors. The IRS targeting scandal is a reminder that conservative donors have reason to fear having their identities disclosed.
In 2011, the Nevada Legislature enacted tougher “express advocacy” standards than were in effect when Citizen Outreach’s filer was distributed. How the courts apply that law will tell us whether the new standards are too strict.
But the state Supreme Court deserves applause for siding with individual liberties over incumbent protection.