Federal Judges Overturn Speech-Chilling Regulation of Grassroots Activists

Yesterday the Institute for Justice won two First Amendment victories in cases that illustrate how campaign finance regulations, ostensibly aimed at preventing wealthy special interests from buying access to the levers of government power, end up squelching the voices of grassroots groups and amateur activists.

One decision involved Mississippi regulations that apply to anyone who spends $200 or more on speech related to inititiatives aimed at amending the state constitution. The case was brought by Vance Justice and four other Oxford residents who wanted to make the case for Initiative 31, an eminent domain reform inititative, but discovered that merely buying a quarter-page ad in the local newspaper would require them to register as a "political committee." The rules for political committees are so complicated, U.S. District Judge Sharion Aycock observes, that "a prudent person might have extraordinary difficulty merely determining what is required." Aycock adds that "potential speakers might well require legal counsel to determine which regulations even apply, above and beyond how to comport with those requirements." She concludes that the public interest in keeping tabs on groups like Justice and his friends cannot justify this regulatory burden.

"We just wanted to inform our neighbors about Initiative 31 and government abuse of eminent domain—an important issue that affects everybody," Justice says in an I.J. press release. "Instead, we wound up learning a lesson in how campaign finance laws chill free speech—also an important issue that affects everybody. We are all thankful that Judge Aycock looked at the real-world effects of these laws and protected our constitutional rights."

The other decision involved Arizona regulations that ensnared Dina Galassini, a Fountain Hills resident who tried to organize a small protest against a local bond issue by sending letters to a couple dozen friends and neighbors, inviting them to show up with homemade signs. As U.S. District Judge James Teilborg puts it, "She was about to feel the heavy hand of government regulation in a way she never imagined." Galassini soon received a letter from the town clerk, who warned her she had better stop exercising her First Amendment rights until she had registered with the government as a political committee. "I was stunned to learn that I needed to register with the government just to talk to people in my community about a political issue," says Galassini. " All I could think was, 'How can this be allowed under the First Amendment?'" 

Teilborg wondered the same thing, ultimately concluding that it could not. "It is not clear that even a campaign finance attorney would be able to ascertain how to interpret the definition of 'political committee,'" he observed, deeming it unconstitutionally vague because "people of common intelligence must guess at the law's meaning and will differ as to its application." Even if the state's interpretation were accepted, Teilborg added, it would be overbroad "because it sweeps in a substantial amount of constitutionally protected speech without any sufficiently important governmental interest in regulating such speech." He explained the impact that such regulations have on groups of modest means:

Under this statutory scheme, any time two or more people want to engage in core political speech to influence the results of an election, they will be chilled from doing so because Arizona's definition of political committee is vague and because the regulations imposed on small groups that seek to combine to influence the results of an election are not substantially related to the State's disclosure interest….

The practical effect of such regulations for small groups makes engaging in protected speech a "severely demanding task."

Both of these cases raise issues similar to those posed by Worley v. Florida Secretary of State, which the Institute for Justice has asked the U.S. Supreme Court to consider. Florida's law transforms people into political committees once they spend $500 to advocate passage or defeat of a ballot initiative. "If the Supreme Court takes the case," I.J. says, "it could set nationwide precedent protecting the rights of ordinary Americans to speak without having to comply with burdensome campaign finance laws."