Taking on Florida’s Political Speech Police:
Arlington, Va.—As Election Day nears, anyone planning to merely mention, let alone express an opinion about, an issue or candidate on the ballot in Florida must remember to get permission from the state government first.
Florida’s “electioneering communications” law is the broadest in the nation, requiring any group of people—a community organization, group blog, church or non-profit—that simply mentions a candidate or a ballot issue in a public newsletter or on a website to register with the government and report all of its spending and donors, even those who never intended their gift to go towards political speech. Groups that fail to comply face fines and possible jail time for their speech.
The law’s effects fall especially hard on grassroots groups like the all-volunteer Broward Coalition of Condominiums, Homeowners Associations and Community Organizations, Inc., near Ft. Lauderdale. The group regularly comments on national, state and local issues in its monthly newsletters, but it is staying silent about anything on the ballot because it cannot afford the time or money required to navigate Florida’s complex campaign finance laws.
That’s why the Broward Coalition is joining with the University of Florida College Libertarians and the National Taxpayers Union, all represented by the Institute for Justice, to file a First Amendment lawsuit challenging Florida’s law in the U.S. District Court for the Northern District of Florida. The case, Broward Coalition v. Browning, was filed today. IJ will also ask the court to halt enforcement of the law before the November election to ensure its clients can speak freely.
“Florida’s law is part of a growing trend of shutting up and shutting out anyone but political pros from politics,” said Bert Gall, an IJ senior attorney. “All the Broward Coalition and other grassroots groups like it want is to do is express their opinion on candidates and issues. That’s a core First Amendment right that shouldn’t be tied up with red tape and regulation.”
“This is a very basic fundamental right,” said Charlotte Greenbarg, president of the Broward Coalition. “We don’t think the government should be able to intrude on citizens and groups expressing their opinions on issues.”
The breadth of Florida’s law creates a legal trap for the unwary and many groups probably do not even know they could face fines and legal penalties for their speech. Indeed, there are almost 100 possible violations of the code.
One of those violations includes advertising that a local political candidate is coming to a college campus to speak. That’s what the University of Florida College Libertarians want to do, but mentioning the candidate’s name in a flyer that reaches more than 1,000 voters without registering as an “electioneering communications organization” is against the law. As a volunteer group whose members occasionally chip in to cover expenses, the College Libertarians do not have the resources to comply.
“We strive to bring different voices to campus,” said Neal Conner, president of the UF College Libertarians. “One of the key features of a constitutional republic like ours is that people have choice and can hear from a wide variety of voices. But this law prevents us from putting those choices before the campus.”
Florida’s law even reaches out-of-state groups, such as the National Taxpayers Union. Based in Alexandria, Va., NTU promotes lower taxes and smaller government at all levels. The group regularly publishes commentary on tax-related ballot issues nationwide, but it will have to delete any comments regarding Florida’s ballot issues before going to press.
“Each year, the National Taxpayers Union releases a ballot guide that provides background information on state and local fiscal measures, like tax swaps or spending increases,” said NTU President Duane Parde. “Our guide doesn’t ask folks to ‘vote yes’ or ‘vote no,’ but we do provide information on how taxpayers could be affected. This year we’re leaving the Florida section blank because of the state’s burdensome disclosure rules, even though there are amendments on which we’d like to speak out. Voter education should be encouraged, not silenced.”
“This law doesn’t regulate the ‘finances’ of any ‘campaign,’ it regulates speech by ordinary citizens and educational non-profits,” said Valerie Bayham, an IJ staff attorney and co-counsel on the case. “These groups add valuable voices to public debate, but laws like Florida’s chill their speech.”
“Florida has taken the policing of political speech to new and ridiculous lengths, leaving practically no room for free speech about politics,” concluded Gall. “Fortunately, the First Amendment was designed to protect the right of all Americans to talk openly about politics, and this lawsuit is aimed at restoring that right.”
The Institute for Justice is a non-profit, public interest law firm that defends First Amendment freedoms and challenges burdensome campaign finance laws nationwide. IJ is currently defending neighbors in Parker North, Colo., sued for speaking out against the annexation of their neighborhood; an independent citizen group, SpeechNow.org, that simply wants to oppose or support candidates on the basis of their stand on free speech but faces burdensome federal regulations that stand in its way; and a non-profit sued for its speech opposing two referenda in Colorado. The Institute is also challenging Arizona’s so-called “Clean Elections” system that provides taxpayer dollars to candidates for their political campaigns.
Get more information on this case and all of the Institute’s First Amendment litigation.
Darren A. Schwartz, a partner with Rumberger, Kirk & Caldwell, P.A., will ably serve as local counsel in Broward Coalition v. Browning.