Unlocking Political Speech in Florida

June 22, 2009

It sounds obvious: The First Amendment protects the right of ordinary citizens to talk about politics. But that has become a foreign concept to Congress and state legislatures, which keep eroding that right through so-called “campaign finance” laws. Unfortunately, these laws have moved well past the realm of regulating the financing of politicians’ campaigns and into the realm of regulating—and ultimately silencing—the speech of almost anyone who wants to talk about politics.

But the Institute for Justice is fighting to reverse that trend in courts across the country—and we are winning significant battles.

In May of this year, we won our legal challenge against Florida’s “electioneering communications” law, the most restrictive regulation of political speech in the nation. That law regulated all groups—including civic clubs, churches, neighborhood associations, policy organizations and charities—if they merely mentioned the name of a candidate or a ballot issue in communications like websites, fliers and newsletters. Under the law, these groups had to register with the government before speaking, reveal information about their donors and report every dollar that they spent or received. If not, they faced fines or even criminal prosecution.

Understandably, the threat of either submitting to intrusive regulation or suffering penalties chilled the speech of groups throughout Florida, including IJ’s clients. The Broward Coalition, homeowner and condo associations and community groups, could not print a single page in its newsletter about ballot issues that would affect its members. The University of Florida College Libertarians could not hand out a pamphlet about their opinions on ballot issues nor could they advertise when a candidate came to campus to speak with them about her views. And the National Taxpayers Union could not include commentary about Florida’s ballot issues in its national guide concerning how initiatives and referenda will impact taxpayers.

In last October’s issue of Liberty & Law , we reported that Judge Stephan P. Mickle of the U.S. District Court for the Northern District of Florida granted the Institute for Justice’s motion for a preliminary injunction against the enforcement of the laws in time for November’s election. Just last month, the court issued a final decision that permanently prevents the state from enforcing the laws. In his decision, Judge Mickle wrote that “[w]hile it is true that the legislature has the power to regulate elections, it does not have the power to regulate purely political discussions about elections.”

He could not be more right.

Elections are the most important time to talk about political issues because that is when most people pay attention to those issues. Yet Florida raised the cost of speech so high that Floridians needed a lawyer before they could share their views. Although professional political operatives can hire an army of lawyers to cut through red tape in order to speak about important issues, the same is not true for the rest of us.

Of course, as the Founding Fathers recognized, political speech is too important to be left only to politicians. Unfortunately, Florida and the other 14 states with “electioneering communications” laws have not come to grips with that fact. But, as the court’s decision shows, those laws are living on borrowed time. We will build upon this victory to ensure that politicians can no longer limit ordinary Americans’ political speech under the pretense of “reforming” campaign finance.

Bert Gall is an Institute senior attorney.

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