Readers of Make No Law are used to hearing stories about how the courts can be used to protect First Amendment rights. Less well known is that courts can be abused to attack First Amendment rights. That’s what happened in 2008 when a Texas developer named H. Walker Royall brought a defamation lawsuit against journalist Carla Main.
Main had written a book, Bulldozed: “Kelo,” Eminent Domain, and the American Lust for Land, that told the story of how Royall teamed up with the city of Freeport, Texas, in a project that would displace a long-running family business by using eminent domain for private gain. Royall didn’t like the way the book portrayed his role in this abuse of government power, so he sued Carla Main and her publisher, Encounter Books, for defamation. He even sued renowned law professor Richard Epstein for contributing a blurb to the book’s back cover.
The lawsuit was a blatant attempt by Royall to bully his critics into silence. And yesterday afternoon, a Texas appellate court held that there was no merit to Royall’s charges.
The ruling is great example of judicial engagement. Royall claimed that 79 separate statements in Main’s book were defamatory. He also claimed that the overall “gist” of the book was defamatory. But the court examined the evidence for each of these 79 claims and found that none of them—not one—was supported by the evidence.
The ruling is also a big win for First Amendment rights. Eminent domain abuse is a matter of public concern—that’s why journalists like Carla Main write books about it. If Royall had succeeded in silencing Main and her publisher, the chilling effect on speech would have been profound.
Finally, the ruling will serve as a helpful adjunct to Texas’s newly enacted Citizens Participation Act, which was enacted in part because of Main’s case. That new law creates a procedure that allows journalists like Main to quickly dismiss abusive defamation cases like Royall’s, which are commonly referred to as “SLAPP suits” (SLAPP is an acronym for “strategic lawsuit against public participation”). Texas is the 28th state to adopt some form of anti-SLAPP legislation.
Congratulations to Carla Main, Encounter Books, Richard Epstein, and all of my colleagues who had a hand in the victory.
Motivated by the recent scandals involving Rupert Murdoch’s News Corp., The New Republic has a fascinating short article titled “How Campaign Finance Laws Made the British Press So Powerful.” In a nutshell, the article explains how Britain’s stringent campaign finance laws have pushed political influence to the one outlet that is largely unregulated: newspapers.
The story illustrates the inevitable problem with campaign finance laws: Any scheme that tries to limit political influence by one group is always going to shift political influence to some other group. Somebody has to be the most influential—this isn’t Lake Wobegon and we can’t all have above-average political influence. And, as the story also reveals, this shift almost always leads to calls for even more regulation:
To some, this situation may reveal the problem of campaign finance laws: By trying to prevent parties from spending large sums of money and stopping wealthy independent organizations from dominating the campaign, the relative voice of the newspapers is enhanced. But rather than admit that campaign finance laws are futile, one might also conclude that controls on campaign spending should be complemented by attempts to address media power.
Luckily, as the article’s author notes, “Such measures would be unthinkable under the First Amendment.” That’s a bit of an overstatement—American law professors have thought it, but thankfully there is little chance of such proposals being adopted and even less chance of them surviving judicial scrutiny. That’s good news because, if history is any guide, media censorship wouldn’t be the end of it. Ultimately, there is only one way to achieve the “reformers’” vision of equal political influence: mandating equal silence.
Update, Dec. 19, 2011: This blog post is now available in Slovenian.
My colleague Paul Sherman has a post on The Hill’s “Congress Blog” discussing the recently reintroduced “Shareholder Protection Act,” which would require corporations to get advance shareholder approval before spending money on political speech. As Paul explains, the Act “has little to do with protecting shareholders and everything to do with silencing corporate speech”:
The goal of the Shareholder Protection Act is obvious. By singling out electoral speech—and only electoral speech—for more burdensome treatment, the Act attempts to do indirectly what the U.S. Supreme Court said in Citizens United v. FEC that Congress may not do directly: prevent corporations from speaking to voters about political candidates. And just like direct attempts to limit corporate speech, this indirect attempt violates the First Amendment. . . .
It is no coincidence that the bills’ 49 co-sponsors are all Democrats, or that the proposed restrictions do not apply to labor unions. Campaign finance laws have long been used as partisan tools to protect incumbent politicians from speech that threatens their reelection. The Shareholder Protection Act is just the latest example of this sort of political self-dealing.
The First Amendment protects anonymous speech. This is especially true when that speech is controversial. When a citizen comments on an issue, but fears retribution from those who disagree, it is that citizen’s right to be free from the government publicly “outing” her identity. That’s something the Supreme Court has repeatedly recognized, from the NAACP not having to disclose its donors in 1950s Alabama, to anonymous pamphleteers remaining anonymous in the 1995 case McIntyre v. Ohio Elections Commission. These cases follow from the obvious proposition that disclosure chills speech.
The Minnesota Campaign Finance Board, unfortunately, has chosen the opposite view. The board had a long-standing policy of not requiring organizations who donate to ballot campaign committees (committees that spend money to support or oppose ballot issues) to disclose their donors. The organizations’ donations are already disclosed by the campaign committees they give to, but the donor—the organization—did not have to say where it got its money from.
Until now. The board just announced it will adopt a new approach where nonprofit corporations who donate over $5,000 to ballot campaign committees must disclose donors of over $1,000. It is not a coincidence that this accompanies a very controversial ballot issue that Minnesotans will vote on in the 2012 elections: whether to adopt a constitutional amendment limiting marriage to opposite-sex couples.
The rule will undoubtedly chill speech on both sides of the same-sex marriage debate. Many people may want to give to organizations who may in turn contribute to groups campaigning on the issue, but will chose not to because they don’t want their private political views broadcast on the internet (which is what disclosure means in this day-and-age).
What purpose does this rule serve? Voters can decide where they stand on the issue without knowing where others stand, and they have no more right to know who is financially backing speech about the amendment than they have a right to know which way anyone will vote on it. But that’s the whole point--outing people who disagree with you on the issue. Proponents of the disclosure law want to be able to demonize those on the other side, and they can’t do that without forcing them to disclose their identities.
Criticizing those who disagree with you is perfectly valid in a free society. What’s not is the government forcing people to disclose information, including their identities, that they’d rather keep private.
Today, the Institute for Justice secured a significant first-round victory in its challenge to a Washington law that crippled the ability of political novices to run effective campaigns to recall government officials.
The case involves retired naval officer Robin Farris, who recently launched a recall campaign against controversial Pierce County, Washington Assessor-Treasurer Dale Washam. But Farris ran headlong into the complexities and red tape of Washington's campaign finance laws.
Among those laws was Washington’s $800 limit on contributions to recall campaigns. This limit even extended to in-kind donations of legal services. Thus, even though attorneys Tom Oldfield and Jeff Helsdon of the firm Oldfield & Helsdon PLLC happily donated free legal assistance to Farris to help her navigate the complex law surrounding recall campaigns, Washington called their volunteer service a contribution and tried to fine Robin for accepting too much of their help.
For Farris, these limits could have doomed her efforts. Washington law actually requires all recall campaigns to first go to court—a process that can cost tens of thousands of dollars—before they may proceed. As a political novice with no established base of financial support, there was no way she could afford the cost of legal services or the cost of hiring signature gatherers to get her recall petition on the ballot. That’s why she joined with the Institute for Justice to fight these unconstitutional limits on grassroots political advocacy.
Now she’s one step closer to winning that fight.
This afternoon Judge Robert J. Bryan of the Federal District Court for the Western District of Washington granted a preliminary injunction freezing Washington’s contribution limits to recall campaigns and allowing Farris’ committee to go forward during the pendency of her lawsuit. Attorneys Oldfield and Helsdon will be permitted to donate their legal services, and contributors will be allowed to give her committee contributions of more than $800, allowing her to hire paid signature gatherers.
The ruling is notable for its extensive reliance on the Institute for Justice’s recent U.S. Supreme Court victory in Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, which Judge Bryan cited no less than five times. This is another example of how IJ’s strategic approach to litigation pays dividends in future cases, leading to big gains for individual rights.
Congratulations to Farris, Oldfield, Helsdon, and to all of my colleagues involved with the case.
Today the 8th U.S. Circuit Court of Appeals handed down a major victory for First Amendment rights in Neighborhood Enterprises v. City of St. Louis. The decision strikes down a St. Louis sign ordinance that the City had tried to use to silence an anti-eminent-domain activist.
IJ filed the case on behalf of Jim Roos and his nonprofit housing ministry, which works to provide housing for low-income residents of south St. Louis. Roos was a critic of the City’s use of eminent domain for private development. So with the approval of his tenants he painted a large mural on the side of one of his buildings, facing the interstate.
If Roos’ mural had depicted a “[n]ational, state, religious, fraternal, professional and civic symbol[ ] or crest[ ],” it would have been perfectly legal. But because Roos’ mural contained a message of political protest, the City concluded that it was an illegal sign and ordered him to paint over it.
Roos wasn’t going to give in, so he joined with IJ to fight for his First Amendment rights. And today the 8th Circuit handed him a victory, holding emphatically that government isn’t allowed to restrict speech based on its message.
The 8th Circuit’s ruling is more than just a victory for Roos—it reaffirms how important it is for judges to look beyond government assertions to see what’s really going on. When the 8th Circuit looked at the evidence, it found there was nothing to support the City’s discriminatory treatment of Roos’ political speech. That sort of careful analysis—which judges should undertake in every constitutional case—is the essence of principled judicial engagement.
Equally vital to IJ’s success in this case was Roos’ willingness to stand up for his rights and challenge the government in court. This is not easy to do, as IJ President Chip Mellor recently noted:
The financial and emotional costs of litigation are enormous burdens for ordinary people to bear in the midst of trying to live their lives. The legal process is overwhelming, disruptive and intimidating for people experiencing it for the first time. . . .
Thankfully though, there are heroic people across the nation who refuse to simply lay down. Typically, they have no legal training and have not read the Constitution, but they know at a very profound level that the principles at the heart of the American Dream are real and vital to their future. And so they go to court in the firm belief that those principles are worth vindicating no matter how hard that may be.
Congratulations to Jim Roos on a well-deserved victory. Thanks to his commitment and IJ’s legal advocacy, residents not just of Missouri, but also of Minnesota, Iowa, Arkansas, Kansas and the Dakotas (the seven states comprising the 8th Circuit) can now enjoy greater protection for their First Amendment rights.
Over the holiday weekend, James Taranto of The Wall Street Journal had a great column discussing Justice Kagan’s dissent in last week’s decision striking down Arizona’s so-called “Clean Elections” law. Here’s a snippet:
“The difficulty,” Kagan writes, “is in finding the Goldilocks solution--not too large, not too small, but just right.” Finding such solutions is the job of lawmakers, not judges: “Arizonans deserve the chance to reform their electoral system.” To sloganeer E.J. Dionne, that is an expression of judicial restraint. “Remember how sympathetic conservatives are supposed to be to the states as ‘laboratories of democracy,’ pioneering solutions to hard problems?” he grouses. “Tell that to the people of Arizona.”
But there’s a world of difference between judicial restraint and judicial dereliction of duty. James Madison was not Goldilocks, and the First Amendment says, “Congress shall make no law.” (That applies to the states as well, thanks to the doctrine of incorporation.) The court is obliged to strike down laws violating freedom of speech even if they were enacted with the best of intentions.
Make No Law readers may recall that my colleague Steve Simpson and I recently had an op-ed in The Wall Street Journal, discussing how comic-pundit Stephen Colbert's experience setting up a "Super PAC" had unintentionally demonstrated how many burdens on political speech still remain in the wake of Citizens United. In the video below, John Samples, the director of the Cato Institute's Center for Representative Government, discusses the results of Colbert's recent appearance before the Federal Election Commission and explains why the joke is still on Colbert: