Upholding the state’s power of prior restraint

In the case of the State of Nevada v. Alliance for America's Future, it was a slam dunk.

A Carson City judge ruled Wednesday that groups of people may not speak out about state elections without first registering with the secretary of state's office and disclosing all sorts of information about who runs the group and who its donors might be. In this case, the Virginia-based alliance was airing television commercials about gubernatorial candidate Brian Sandoval that never mentioned he was running for office nor used any of the so-called magic words to "expressly advocate" his election.

The commercials said, "For weeks the liberals have been attacking Brian Sandoval, recklessly and personally. What are they scared of?"

District Judge James E. Wilson Jr. tossed all of the alliance's arguments thusly: "The first issue is whether the advertisement advocates expressly, the election of Brian Sandoval. It does. The second issue is whether the Secretary has established the necessary elements for a preliminary injunction. It has. The third issue is whether Alliance has shown NRS 294A.0055 is unconstitutional. It has not. The fourth issue is whether Alliance's First Amendment rights are unconstitutionally chilled. They are not."

Four strikes and you're out.

In upholding the dubious prior restraint power of the state to demand irrelevant information of speakers before they may deign to dabble in Nevada's pristine politics, the judge discovered a constitutional "right" to have information about the motives of those exercising their First Amendment speech rights.

"Nevadans have a right to know who is behind election advertising," the judge writes. "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, information they need to determine what weight to give the advertising."

Where is such a "right to know" enumerated in either the state or U.S. constitutions?

Does this mean voters have a right to know all the pertinent proclivities of those paying for the commercial? Are they men or women? Democrats or Republicans? Rich or poor? Fellow travelers? Arrest record? Hetero or homo? Where does such an all-encompassing right stop its prying eyes?

Voters are perfectly capable of weighing messages based on whether the source is credible, as well as judging information from unknown sources without the state protecting us from our gullible selves.

Wilson cites the U.S. Supreme Court ruling in Buckley v. Valeo, which upheld limits on candidate spending and contributions and requiring disclosure. That ruling noted Congress may establish the qualifications for elective office, which may include disclosure of finances. But the court tossed restrictions on spending by independent groups and on the amounts candidates could spend of their own money.

Since then, the court has let stand various disclosure requirements for independent groups, despite arguments that revealing donors will chill free speech, an argument the alliance lawyers made futilely.

In a strong dissent in Citizens United v. FEC, the case that got rid of much of the limits imposed by McCain-Feingold, Justice Clarence Thomas exposed the illogical nature of the court's half-measure when it comes to free speech by noncandidates.

"Irony aside, the Court's promise that as-applied challenges will adequately protect speech is a hollow assurance," Thomas writes. "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. …" He was referring specifically to threats made against signers of an anti-gay marriage petition in California.

"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 …"

Let's see, can we think of anyone who might run afoul of Nevada's law?

James Madison, Alexander Hamilton and John Jay, authors of anonymously penned Federalist Papers, perhaps? Likewise the authors of the pseudonymously penned Anti-Federalist Papers. Benjamin Franklin. John Adams. Thomas Jefferson. Thomas Paine. John Locke. The contributors to John Peter Zenger's newspaper.

Lock 'em up, judge.

Thomas Mitchell is editor of the Review-Journal and writes about the role of free speech and press, as well as the right to access public records. He may be contacted at 383-0261 or via e-mail at tmitchell@reviewjournal.com. Read his blog at lvrj.com/blogs/mitchell.