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Court: Regulation of free speech stops here!

Posted By Drew Zahn On 07/02/2010 @ 11:30 pm In Front Page | Comments Disabled


U.S Court of Appeals for the Tenth District

A federal court has ruled unconstitutional an attempt by New Mexico politicians to regulate the political free speech of activists working to hold their elected officials accountable to the people.

The U.S. Court of Appeals for the Tenth District in Denver, Colo., ruled that New Mexico Youth Organized could not be classified as a political organization subject to government regulation simply because it advocates political issues and educates the public on how lawmakers vote on those issues.

“The Tenth Circuit’s holding is significant,” explains a statement from The James Madison Center for Free
Speech
, which filed an amicus brief in the case, “because it limits government’s ability to regulate organizations as full-fledged political committees, thereby imposing on them all the burdens – including registration, extensive recordkeeping requirements and extensive reporting requirements – that go along with being a political committee.

“As the Supreme Court has explained, these burdens are so onerous that many organizations, rather than complying with them, will just forego their political speech,” the Center explains. “This is at odds with the Supreme Court’s repeated holdings that political speech is at the very core of what the First Amendment protects.”

New Mexico Youth Organized is a project of the Center for Civic Policy, the executive director of which, Eli Yong Lee, explains, the project “educates the public about how their governmental representatives vote and how these representatives are funded. New Mexico Youth Organized encourages its constituents to communicate with their representatives regarding issues important to New Mexico youth.”

Significantly, Lee insists, the project “do[es] not engage in express advocacy for the election or defeat of candidates for public office.”

But when the project mailed advertisements criticizing several incumbent state legislators, denouncing certain proposed initiatives and pointing out where sponsoring legislators received their funding, one of those criticized filed a complaint.

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Democrat State Senator Shannon Robinson, who, it was said in a project advertisement on health-care initiatives, “voted with the insurance industry,” asked New Mexico Secretary of State Mary Herrera to step in and force the project to conform to the state’s regulations for political committees.

A second targeted legislator, Democrat State Senator Bernadette Sanchez, also contacted State Attorney General Gary King, seeking the same clamps be put down on the project’s activities.

According to court documents, Herrera originally refused to require the project to register as a political committee under state law, but the chief deputy attorney general pressed her into enforcing regulation of the project as a political committee under the New Mexico Campaign Reporting Act.

After New Mexico Youth Organized filed suit alleging the government regulation an infringing chill on its First Amendment rights, Herrera and King suffered a legal defeat at the lower level and then again upon appeal to the Tenth Circuit court.

According to the courts, in order for the project mailings to be “regulable campaign-related communication,” they must meet the test of being “unambiguously campaign-related.”

To that effect, the court ruled, the project advertisements failed to be “unambiguously campaign-related,” based on several factors:

  • The communications did not mention any future primary or general election in which the targeted legislators would be running;
  • The ads merely highlighted the legislators’ voting records;
  • The ads warned that corporate interests were likely to try to influence the
    legislators’ positions on health-care legislation and urged recipients to contact their
    legislators so that their voices could be heard, too;
  • The ads were not mailed within 30 days of a primary election or 60 days of a general election.

Therefore, the lower court stated, the ads were “susceptible of a reasonable interpretation other than as an appeal to vote for or against a specific candidate.”

The higher court not only agreed, but also condemned a statute of the New Mexico Campaign Reporting Act that classifies any group that receives or spends $500 per year for a “political purpose” as a regulable political committee, calling the provision “constitutionally infirm.”

New Mexico Attorney General King is said by spokesman Phil Sisneros to be reviewing the opinion and considering the state’s options for responding.

“Attorney General King continues to believe that if organizations want to campaign in New Mexico,” Sisneros said, “then they should have to disclose where their funding comes from.”

Free-speech advocates, however, hail the courts’ decisions as propitious for the First Amendment.

“This is another victory for free speech,” said James Bopp Jr., general counsel for the James Madison Center for Free Speech. “The Tenth Circuit has adopted the unambiguously-campaign-related principle lock, stock and barrel. The Tenth Circuit now joins many courts that have recognized this principle.”

“The decision by the 10th Circuit Court of Appeals affirms the right of nonprofit organizations to hold public officials accountable. It also affirms the right of nonprofit organizations to educate the public and engage them in their democracy,” said Center for Civic Policy CEO Matt Brix. “We hope with this decision that this matter can finally be put to rest.”



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