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Free Speech Victory Leaves More Work to be Done

My non-profit grassroots advocacy organization recently won a huge free speech victory in a Nevada Supreme Court case, but the work of defending our First Amendment rights against government infringement marches on.

Back in 2010, Citizen Outreach sent out a pair of issue-based mailers detailing the fact that former Assemblyman John Oceguera was “double-dipping” as a government employee and wasting a lot of the taxpayers’ time pursuing frivolous legislation.  The mailers encouraged citizens to “tell John Oceguera” to, essentially, change his evil ways.

Former Secretary of State Ross Miller sued us, claiming we were obligated to report to the government the names of every donor to our organization even though the IRS clearly says we are allowed to protect our contributors from such government fishing expeditions.

District Court Judge James Russell summarily ruled against us despite the fact that we never expressly called for Mr. Oceguera’s defeat.  Judge Russell ruled that the only way to “tell” the assemblyman to knock it off was to vote against him.

Clearly not true.  Citizens could have talked to Mr. Oceguera about any or all of the issues we raised by calling him, emailing him, faxing him, sending him a letter or even talking to him at the grocery store or at a town hall meeting.

So we appealed Judge Russell’s decision.  And the Supreme Court overturned it.

However, the decision in our favor was a narrow victory.  You see, in 2010 when we sent out our mailers, Nevada law was unclear as to exactly what constituted “express advocacy” for the defeat of a candidate which would trigger donor disclosure.  In fact, it was so unclear that Secretary Miller went to the Nevada Legislature in 2011 and had state law changed to clear up the confusion.

As such, the Supreme Court ruled that Miller couldn’t hold us to a definition of “express advocacy” that wasn’t in state law when our mailers were mailed.

So ever though we won, there’s still a huge problem in that Nevada law now has a new, very liberal definition of “express advocacy” that poses a serious infringement on free speech.  That law needs to be changed or repealed outright.

While some ardently advocate the virtues of public disclosure of donor identities in the interest of “transparency,” they overlook the very real dangers that donors risk, especially conservative donors, by being disclosed publicly in the form of blacklists, threats, harassment, humiliation and retaliation.

As U.S. Supreme Court Justice Clarence Thomas wrote in 2010, “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.”

Justice Thomas is absolutely correct.