Government assault on free speech

By STEVEN MILLER

SPECIAL TO THE LAS VEGAS REVIEW-JOURNAL

Would America’s Founding Fathers have run afoul of Nevada’s current laws against free speech?

If Secretary of State Ross Miller had been around at the time, making the rules, they no doubt would have.

During the past two legislative sessions, Miller has successfully pushed bad, anti-speech policy into law. Then he went out and hammered conservative dissidents.

An example: In a lawsuit brought by Miller against the nonpartisan, conservative group Citizen Outreach, a judge recently upheld a Miller-imposed fine against the organization of $10,000 and imposed attorneys fees and $7,600 in costs. The judge also ordered the group to file a campaign expense report.

What was Citizen Outreach’s offense? Engaging in speech without following the secretary of state’s prescribed government protocols.

In 2010, Citizen Outreach sent two mailers to constituents of then-Assembly Speaker John Oceguera, informing them of Oceguera’s tax-raising record and double-dipping as a government employee. Citizen Outreach then did not report either its speech or its financial backers to Miller.

Had Citizen Outreach sent the fliers at any time during the first 200 years of the American republic, it would have been a non-issue. Then, the First Amendment was generally believed to mean precisely what it says: “Congress shall make no law … abridging the Freedom of Speech …”

Indeed, the definition of abridge leaves no doubt: Merriam-Webster’s online dictionary defines it as “to make less in extent or duration.” It further includes as synonyms: abbreviate, curtail, cut back, dock, elide and truncate.

In its 1971 Buckley v. Valeo decision, however, the U.S. Supreme Court endorsed congressional legislation to curtail speech through campaign restrictions and disclosure requirements. The Buckley majority chose to pretend that, while the Constitution technically bars Congress from passing any law “abridging the freedom of speech,” it nevertheless allows Congress to do so in practice — by levying upon core political speech all kinds of burdensome rules and additional costs.

Why? To guard against even “the appearance” of possible corruption, said the court.

That’s a direct assault upon the clear meaning of the First Amendment, which protects speech regardless of its appearances.

Buckley attempted to preserve some room for free speech by drawing a line between issue advocacy, which was not to be regulated, and express advocacy — urging people to “vote for,” “vote against,” “elect,” or “defeat” a clearly identified candidate — which was to be regulated and treated as a campaign contribution.

Later, in its 2006 Federal Election Commission v. Wisconsin Right to Life decision, the court further reduced the domain of free, unregulated political speech by expanding its definition of express advocacy to include ads that were held to be “functionally equivalent” to the “magic words” identified in Buckley.

However, to avoid complete destruction of the First Amendment, the court emphasized in that 2006 decision that for an advertisement to be classed as “functionally equivalent” to express advocacy, no other reasonable interpretation of the ad could exist than to vote for or against the politician[s] named. And so it vacated, as unconstitutional, a portion of the McCain-Feingold Act.

Miller has pushed legislation that ignores the Supreme Court’s carefully drawn distinctions between issue and express advocacy. Now both are burdened by complex reporting requirements.

“[T]he policy changes we are looking to make,” Miller told lawmakers, “cover the areas of increased transparency and … [a] big part of the transparency is letting voters know who is funding the campaigns.”

Actually, the real modern “transparency” movement has been to ensure that government is transparent to citizens. It has never been to make the intentions and political views of citizens — the ultimate authority over government — transparent to government agencies and subject to government regulations.

Revealingly, Miller gets this important issue exactly backward, showing profound indifference to America’s long history of anonymous free-speech rights.

That history began in England, in the resistance to authoritarian kings. It marked the authorship of The Federalist Papers by James Madison, Alexander Hamilton and John Jay, under the “Publius” pseudonym — and the writings of the Anti-Federalists, too.

It occasioned the 1958 U.S. Supreme Court decision protecting the right of NAACP donors to remain anonymous.

And, as recently as 1995, the court celebrated that tradition, finding unconstitutional an Ohio law prohibiting the distribution of anonymous campaign literature. That law, said the court in McIntyre v. Ohio Elections Commission, “abridges the freedom of speech in violation of the First Amendment.”

For government to compel inclusion of the author’s identity within a published article or expression of opinion, said the McIntire justices, is direct state interference in the content of the message the author seeks to convey.

“On occasion, quite apart from any threat of persecution,” wrote the court, “an advocate may believe her ideas will be more persuasive if her readers are unaware of her identity. Anonymity thereby provides a way for a writer who may be personally unpopular to ensure that readers will not prejudge her message simply because they do not like its proponent.”

Clearly, that was the view of Madison, Hamilton and Jay: They wanted their arguments considered on those arguments’ merits.

On the authoritarian road Miller is traveling, many of our Founding Fathers would be prosecuted for their political speech. Along with Citizen Outreach, Miller has sued the group Americans for Prosperity for violating his personal definition of “express advocacy.”

The right to speech entails the right to fund speech or its distribution, and to do so anonymously if so desired. It also entails the right to speak and write under a pseudonym, if that — as with Madison, Hamilton and Jay — may be your choice.

Speaking of that trio, today they must be spinning in their graves.

Rest in peace, Publius.

Steven Miller (no relation to the current secretary of state) is vice president for policy at the Nevada Policy Research Institute. For more visit http://npri.org.

Review-Journal columnist Glenn Cook will return next week.