Do Ordinary Americans Have Fewer First Amendment Rights Than Corporations and Unions?

J. Justin Wilson
J. Justin Wilson · September 12, 2013

Arlington, Va.— Should grassroots groups have less freedom of speech than corporations and unions? That is the question raised by a U.S. Supreme Court petition that was filed today by the Institute for Justice (IJ), the national law firm for liberty. The case, Worley v. Florida Secretary of State (download cert petition), seeks to free ordinary Americans from laws that are silencing speech nationwide.

In Florida, as in most states, if two or more people want to spend more than a modest amount to speak out during an election, they must form a heavily regulated political committee or “PAC.” But in its landmark ruling in Citizens United v. FEC, the Supreme Court held that the burdens of operating a PAC are so severe, they are unconstitutionally burdensome even for corporations and unions.

Paul Sherman, an IJ senior attorney and lead counsel in the case, said, “Laws that are unconstitutionally burdensome for General Motors and the AFL-CIO are unconstitutionally burdensome for ordinary Americans. Unfortunately, courts across the country are holding precisely the opposite, and it is silencing grassroots speakers nationwide.”

Those grassroots speakers include Sarasota residents and plaintiffs Nathan Worley, Patricia Wayman and John Scolaro, who found out how complicated campaign-finance laws can be when, in 2010, they wanted to spend $600 on radio advertisements opposing a Florida constitutional amendment.

IJ client Nathan Worley said, “I always thought the only thing you needed to speak about politics was an opinion. I never thought you’d need to figure out hundreds of pages of rules and regulations. We shouldn’t have to hire lawyers and accountants before we can feel safe talking about politics.”

To run their radio ads, the group would have had to form a PAC, which would require them to appoint a treasurer, open a separate bank account, keep detailed financial records, maintain records for years, file regular reports with the Division of Elections in which they must itemize every penny of every contribution and every expenditure, and submit to random audits by the Division of Elections—requirements that corporations or unions would not have been forced to comply with if they ran the same ads. Rather than risk fines or jail time for violating the law, the group chose not to run their ads.

IJ Attorney Claudia Edenfield said, “These laws create huge traps for political novices who don’t have the time to master the law or the money to hire a lawyer. The result is that politics becomes a game for political insiders, while ordinary Americans are too often intimidated into silence.”

Instead of staying silent, Nathan, Pat and John decided to fight back and in September 2010 joined with IJ to challenge Florida’s PAC requirement in federal court. Unfortunately, last June, the 11th U.S. Circuit Court of Appeals rejected their challenge, joining the 4th, 7th, 9th, and D.C. Circuits in holding that corporations and unions enjoy greater freedom to speak out in elections than grassroots groups.

IJ Senior Attorney Bert Gall said, “Courts across the country are failing in their basic responsibility to defend the free speech rights of ordinary Americans. That must stop. This case is an opportunity for the U.S. Supreme Court to make clear to lower courts that the First Amendment demands judicial engagement, not judicial abdication.”