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IJ Sues to Defend Against Free Speech Attack

If you want to talk about politics in Colorado, you had better have a defense attorney on speed dial. That is because, unlike most states, Colorado has outsourced the enforcement of its complex system of campaign finance laws to every disgruntled politico with an ax to grind. The all-too-predictable result is that these laws are now being wielded as weapons to entrench political incumbents and to silence dissent.

IJ client Tammy Holland learned this the hard way. Tammy is a resident of Strasburg, Colorado, where she lives on a farm with her husband and sixth-grade son. Tammy is also a passionate opponent of Common Core curriculum and high-stakes testing, which she believes impoverish education and subject students to unnecessary anxiety.

To voice her disapproval and raise awareness of these issues, Tammy took out a series of ads in her local newspaper, The I-70 Scout. The most recent of these was in September 2015, a couple of months before the local school board election. In it, she urged voters to familiarize themselves with the entire slate of candidates running for school board, which included six new candidates who were challenging the incumbent school board members.

That is where Tammy’s troubles began—for placing an ad in the newspaper, she found herself sued not once, but twice, by school board officials.

How can merely voicing your opinion land you in court? It happened because in Colorado, unlike in virtually every other state in the country, any citizen may file a private lawsuit to enforce the state’s campaign finance laws. The Colorado secretary of state is required to forward all such complaints to the Office of Administrative Courts, triggering full-blown litigation. There is no process for screening out frivolous complaints, and if you want an attorney to defend you, you will have to pay for counsel out of your own pocket. Not surprisingly, complaints are routinely filed not out of legitimate concern for enforcement of the campaign finance laws, but to intimidate and silence political opponents.

That is exactly what happened in Tammy’s case. After her ad ran in The I-70 Scout, Byers School District Superintendent Tom Turrell filed a complaint alleging that Tammy had violated Colorado campaign finance laws by failing to register as a “political committee.” But this requirement does not apply to ads like Tammy’s, which did not call for the defeat or election of any candidate. Superintendent Turrell’s complaint also claimed that Tammy had somehow violated federal campaign finance law, even though the federal requirements he cited are totally inapplicable to speech about local elections.

After Tammy hired a lawyer, Superintendent Turrell dismissed his complaint. But when Tammy refused to drop her request to recover attorneys’ fees for defending herself against Superintendent Turrell’s baseless complaint, she found herself hit with a second—and identical—complaint filed by Byers School Board member Tom Thompson III.

Although Tammy fully believes she violated no law, she wants to ensure that neither she nor any other Coloradan is subject to this abusive system in the future. So Tammy has teamed up with IJ to fight back.

States should not be regulating political speech in the first place, but, to the extent they do, the First Amendment requires that those regulations be enforced by a neutral government official who has an obligation to abide by the U.S. Constitution. That is why on January 21, in addition to challenging the latest administrative complaint against Tammy, IJ filed a federal lawsuit against the Colorado secretary of state to strike down Colorado’s unconstitutional system of private campaign finance enforcement.

In a society that values free expression, nothing could be more dangerous than giving incumbent politicians or their cronies the power to sue people who merely mention their name in the newspaper. When Tammy’s lawsuit is successful, speakers throughout the state will be able to breathe a sigh of relief, and would-be censors will have one less weapon to wield against those whose only crime is voicing their opinion.

Paul Sherman is an IJ senior attorney.

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