IJ Asks Supreme Court to Protect Grassroots Speech

John Kramer
John Kramer · December 22, 2015

In America, the only thing you should need in order to speak is an opinion. But thanks to burdensome campaign finance laws, groups of concerned citizens need more than just their opinions—they also need a lawyer. The Institute for Justice is asking the U.S. Supreme Court to take the case of Justice v. Hosemann to fix that problem, through a petition for certiorari they filed with the Court.

Americans have been gathering together to speak out about politics since the nation was founded. Indeed, the First Amendment to the Constitution exists to protect the right to speak and associate about the most important events of the day. Increasingly, however, governments nationwide are tangling these rights up in so much red tape that it is becoming as difficult to speak out about politics as it is to file your income tax return.

Five friends in Oxford, Mississippi—Vance Justice, Sharon Bynum, Matt Johnson, Alison Kinnaman and Stan O’Dell—are passionate about politics. They have met regularly for years in their homes, at restaurants and elsewhere to discuss the political issues of the day. Though they are not a formal group and have no campaign experience, they engage in basic grassroots political activities. For instance, they hold rallies and hand out flyers about issues they care about, which they fund by passing a hat at their meetings. In 2011, Mississippians were asked to vote on a ballot measure combatting eminent domain abuse. The group wanted to pool their money to create flyers and put an ad in the newspaper urging people to vote for the measure. But they ran into Mississippi’s campaign finance laws.

Mississippi—like many other states—regulates even this most basic political speech. Because the group wanted to spend more than $200 on their speech about the measure, the government demands they register as a “political committee” and, as such, comply with all of the burdensome regulations that come with that status. They are required to adopt the structure of a formal group, and, in addition to reporting their political activities to the government, subject themselves to a host of ongoing record-keeping and other obligations. And if they make any mistakes in any of this, they face significant civil and criminal penalties, including one year in jail and fines of $1,000 for each and every violation. These laws make it impossible for them to do what they should have a right to do—pool their own money to speak about issues that are important to them.

As Vance Justice explained, “We just wanted to inform our neighbors about Initiative 31 and government abuse of eminent domain—an important issue that affects everybody. Instead, we wound up learning a lesson in how campaign finance laws chill free speech—also an important issue that affects everybody.”

The Supreme Court ruled that this kind of regulatory scheme is unconstitutionally burdensome for unions, sophisticated nonprofit groups and corporations like the AFL-CIO, the NRA or the Sierra Club, and General Motors. These groups cannot be subjected to such laws when they speak in elections, yet five friends in Mississippi are forced to comply with these burdensome laws.

This makes no sense.

Making matters worse, Mississippi’s political committee laws apply even to groups just talking about issues, rather than candidates. In every state in the nation, Americans are called upon to vote on issues that appear on the ballot. The elections at issue don’t involve any candidates, but rather ask voters to decide questions like whether to issue municipal bonds, reform land-use plans, or limit eminent domain abuse.

Because these elections do not involve candidates, the Supreme Court has consistently held, for almost 40 years, that there is little—if any—reason to regulate speech about ballot issues. The Court has consistently recognized that there is simply no threat of corruption coming from ballot issue speech. Accordingly, individuals and corporations have been able to make unlimited contributions and expenditures to speak about ballot issues.

Recognizing that regulation of ballot issue speech “rests on different and less powerful state interests,” the Supreme Court struck down even less burdensome regulations on ballot issue speech in McIntyre v. Ohio Elections Commission. Notably, the regulations in McIntyre fell on a small group’s (Mrs. McIntyre, her son, and a friend) distribution of leaflets opposing a referendum on a proposed school tax levy—grassroots political activity indistinguishable from what the Mississippi challengers want to do there.

“Federal courts across the country are confused and have handed down a mish-mash of conflicting holdings in this area,” said Paul Avelar, an attorney with the Institute for Justice, which represents the Mississippi friends. “As a result, groups just like the challengers in this case get their First Amendment rights protected in certain parts of the country, but not in other parts. The Supreme Court should take the case in order to establish nationwide precedent protecting the rights of ordinary Americans to speak without having to comply with burdensome campaign finance laws.”

This case is a part of the Institute for Justice’s Citizen Speech Campaign, a national effort to restore full protection to political speech. For more on this case, visit https://ij.org/case/mississippi-citizen-speech.