Federal Judge Removes Florida's Gag on Political Speech

Jacob Sullum | October 30, 2008

Yesterday a federal judge suspended enforcement of a Florida law that the Institute for Justice calls "the broadest regulation of political speech in the nation." Under the law, any group that so much as mentions a candidate or ballot measure in a newsletter or online has to register with the state as an "electioneering communications organization," file regular spending reports, and disclose its donors. According to I.J., "There are almost 100 possible violations of the law, and failure to comply could lead to fines and jail time. The time and money required to navigate this bureaucratic red tape is too much for many citizen groups and non-profits, leaving them no choice but to stay silent." On its face, the law exposes national organizations with websites that discuss Florida issues to legal liability. It also applies to individuals who spend $100 or more to communicate their political views.

"No court has ever upheld such a sweeping regulation of political speech," U.S. District Judge Stephan Mickle noted in issuing the preliminary injunction that I.J. sought on behalf of the National Taxpayers Union, the University of Florida College Libertarians, and the the Broward Coalition of Condominiums, Homeowners Associations, and Community Organizations. These groups now will be able to discuss election-related issues without fear of getting into legal trouble.

In concluding that I.J.'s First Amendment challenge to the law was likely to prevail, Mickle rejected the idea that calling speech restrictions "campaign finance reform" makes them less suspect:

The rights to speak and associate freely regarding issues of public concern are zealously guarded by the First Amendment. Unfettered and unregulated speech is the rule, not the exception. Just because a restriction is labeled as a restriction on campaign finance does not mean that it faces an easier path to constitutionality than a restriction outside that context.

Addendum: A PDF of Mickle's decision is available here.

Comments

Abdul|10.30.08 @ 1:15PM|#

Homeowners Associations were against this restriction?

Every HOA I've ever had the misfortune to encounter loved speech restrictions. Virginia had to pass a law making it illegal for HOA's to ban the display of American flags.

|10.30.08 @ 1:27PM|#

"No court has ever upheld such a sweeping regulation of political speech," U.S. District Judge Stephan Mickle
Uh, didn't the Supreme court do so in upholding McCain Feingold? Fortunately, Obama has made mincemeat of the ridiculous public finance law. Now the republicans will have to compete in the marketplace of ideas to compete. 1st step - have some principals (like not restricting speech by calling it campaing finance reform). 2nd step - follow your principals (like not yammering forever about small government but enacting "drug entitlement reform" that expands government expenditures the most since LBJ). 3rd - just collapse and lets have a new opposition party.

|10.30.08 @ 1:28PM|#

So if I were to postin the comments:

Vote "No" on the Constitutional Amendment 6 Assessment of Working Waterfront Property Based Upon Current Use ballot issue

The Reason Foundation would have to register with the state of Florida as a electioneering communications organization or faces fines, if this law were in effect?

nyu law libertarian|10.30.08 @ 1:29PM|#

Is there any way to get a link to the opinion? It would be interesting to know what precedent, scrutiny, etc. the judge used in his decision.

Kaiser|10.30.08 @ 1:36PM|#

My question is, how would a law like this ever get enacted in the first place? I mean it seems to be a pretty blatant violation of the 1st amendment.

Elemenope|10.30.08 @ 1:41PM|#

My question is, how would a law like this ever get enacted in the first place?

More legislators voted "yes" than "no".

I mean it seems to be a pretty blatant violation of the 1st amendment.

That generally matters little to legislators.

|10.30.08 @ 1:41PM|#

"No court has ever upheld such a sweeping regulation of political speech," U.S. District Judge Stephan Mickle noted in issuing the preliminary injunction that I.J. sought on behalf of the National Taxpayers Union

There he goes legislating from the bench his deregulationist agenda!!

|10.30.08 @ 1:45PM|#

nyu law libertarian,
It may be in PACER, but I don't have an account, nor the inclination to set one up.

Guy Montag|10.30.08 @ 1:45PM|#

UGH! I don't know what annoys me more. Stupid laws like this being enacted or the stupid people I run into who truly think that restrictions like this promote "fairness".

I guess the former more than the latter, since the latter rarely have police power.

anon.|10.30.08 @ 1:48PM|#

The opinion is available here: http://blogs.orlandosentinel.com/news_politics/files/ECO.order.pdf

Elemenope|10.30.08 @ 2:06PM|#

There he goes legislating from the bench his deregulationist agenda!!

LOL.

The right sure has put itself into a rhetorical pickle with its harping upon judges for doing judgy things.

Geotpf|10.30.08 @ 2:07PM|#

fresno dan | October 30, 2008, 1:27pm | #

"No court has ever upheld such a sweeping regulation of political speech," U.S. District Judge Stephan Mickle
Uh, didn't the Supreme court do so in upholding McCain Feingold?

McCain/Feingold's restrictions aren't anywhere nearly as strict as this nonsense.

Look-is there really a shortage of political speech this election season? All sorts of things are exempt from McCain/Feingold, such as this website.

Now, that being said, McCain/Feingold is a bad law, although some parts of it I like. I like requiring the "I approve this message" bit on TV ads, for example. Disclosure (which is what that is) is a good thing.

|10.30.08 @ 2:09PM|#

The headline I'd write.

Freedom lovers win one battle, continue a fighting retreat on a broad front.

Paul|10.30.08 @ 2:12PM|#

This is good news. What more can be said?

Guy Montag|10.30.08 @ 2:17PM|#

This is good news. What more can be said?

It is not good enough news to prevent me from leaving the country!

robc|10.30.08 @ 2:19PM|#

I like requiring the "I approve this message" bit on TV ads, for example

I find that amazingly annoying. If I ever run for office, Ive considered doing an ad in which I do all the talking - then at the end I say that I dont approve the message. Just to be obnoxious.

I dont have (much of) a problem with text at the bottom saying who paid for it - but if the robc campaign pays for it, of course I frickin approve of it.

|10.30.08 @ 2:29PM|#

Elemenope | October 30, 2008, 1:41pm | #
My question is, how would a law like this ever get enacted in the first place?

More legislators voted "yes" than "no".

I mean it seems to be a pretty blatant violation of the 1st amendment.

That generally matters little to legislators.

Threadwinner!

Elemenope|10.30.08 @ 2:30PM|#

Freedom lovers win one battle, continue a fighting retreat on a broad front.

See, what they've been doing is fighting the robots in a controlled retreat, when they should have just attacked Skynet and smashed it to bits...and, uh, where am I, again?

---------

In entirely unrelated news, in my job today I booked a wedding for a nice same-sex couple. First gay marriage booking we've had. Having first-hand experience does, indeed, make it more real.

Damn you, Connecticut, for being faster!

|10.30.08 @ 7:26PM|#

""""No court has ever upheld such a sweeping regulation of political speech," U.S. District Judge Stephan Mickle

Uh, didn't the Supreme court do so in upholding McCain Feingold?"""

It's not even close. This law could be applied to all of us who pay more than $100 a year on Internet service since we use it to communicate our political views.