Final Victory for First Amendment Rights in Florida: State Declines to Appeal Ruling Striking Down  “Electioneering Communications” Law 

J. Justin Wilson
J. Justin Wilson · June 29, 2009

Arlington, Va.—The state of Florida has declined to appeal a federal court ruling striking down the state’s “electioneering communications” law, marking a final victory for the nonprofit groups that challenged the law as a violation of First Amendment rights in Broward Coalition v. Browning.  Florida’s time to file an appeal expired last Thursday at midnight.  The state’s decision comes as the U.S. Supreme Court has asked for additional arguments in a case challenging the federal electioneering law.

In his ruling holding the law unconstitutional, U.S. District Court Judge Stephan Mickle wrote, “While 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.”

“By failing to appeal, the Secretary of State has acknowledged that the district court was exactly right when it struck down Florida’s regulation of so-called ‘electioneering communications,’” said Institute for Justice Senior Attorney Bert Gall, lead counsel in the Institute’s successful challenge to Florida’s electioneering communications laws.  “Under the First Amendment, the government’s ability to regulate political speech about candidates and ballot issues is extremely narrow.  In America, the right to free speech means that the government cannot make it harder for some groups to speak because it doesn’t like what they have to say.”

Judge Mickle’s decision is part of a growing body of case law from the federal courts that calls into question speech regulations, like Florida’s, that have flourished in the states since the U.S. Supreme Court upheld the federal electioneering communications ban in the 2003 McConnell case.

Indeed, today, the U.S. Supreme Court indicated, in asking for reargument of Citizens United v. FEC, that it wants to reconsider the McConnell ruling and an earlier ruling in Austin v. Michigan Chamber of Commerce that banned certain corporate-funded political speech.

“The Florida district court recognized a fundamental principle that the Supreme Court should embrace in Citizens United:  The regulation of political speech should be the exception, not the rule,” said Gall.

Also today, IJ released a first-of-its-kind study of Florida nonprofits that shows how these growing regulations impose huge regulatory burdens on nonprofit groups.  Political scientist Dr. Michael Munger of Duke University, writes in “Locking Up Political Speech: How Electioneering Communications Laws Burden Free Speech and Civic Engagement, ” that electioneering communications laws have profoundly anti-democratic effects.

Under Florida’s electioneering communications law, any group of people that simply mentioned a candidate or a ballot issue in a public newsletter or on a website had to register with the government and report all of its spending and donors, including those who never intended their gift to go towards political speech.  Groups that failed to comply faced fines and possible jail time for their speech.  Individuals were also subject to burdensome reporting requirements if they spent just $100 of their own money to speak.

Because the law made it impossible for them to discuss candidates and issues with their members and the public, the Broward Coalition of Condominiums, Homeowners Associations and Community Organizations, the University of Florida College Libertarians and the National Taxpayers Union banded together to bring, with IJ’s representation, a First Amendment challenge to those laws.  By prevailing, these groups freed other groups, such as nonprofits, churches, charities and civic associations to talk freely about politics—just as the First Amendment requires.

Florida’s law was passed after the U.S. Supreme Court in McConnell upheld the federal electioneering communications ban in the Bipartisan Campaign Reform Act, or McCain-Feingold.  But Florida regulated far more speech in more forums by more speakers than the federal law.

“Florida took a bad federal law and made it worse by attempting to regulate practically all political speech in Florida,” said Gall.  “The regulation of some speech inevitably leads to the regulation of all it, which is why politicians should keep their hands off their constituents’ First Amendment rights.  Floridians should be thankful that the district court protected those rights when politicians failed to do so.”