Arlington, Va.—Can the government prohibit even the smallest group of friends and neighbors from sharing their opinion about important political issues unless they navigate a labyrinthine legal system so complicated the Supreme Court has declared it unconstitutional for corporations, unions and organized interest groups? This is the question at the heart of Justice v. Hosemann, which the Supreme Court will soon decide whether to hear.
Five friends in Oxford, Mississippi—Vance Justice, Sharon Bynum, Matt Johnson, Alison Kinnaman and Stan O’Dell—are passionate about politics. They get together in their homes, at restaurants and elsewhere to talk about politics, as they have for years. Though they are not a formal group, 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 literally passing a hat at their get-togethers. 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 posters and put a small 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. It is illegal for this group of friends to pool and spend more than $200 to speak about the measure unless they create a political committee, adopt all the formal structures required of a political committee, register with the State, and subject themselves to the full panoply of ongoing record-keeping, reporting and other complicated obligations foisted on political committee. And if they make any mistakes, they face significant civil and criminal penalties, including one year in jail and fines of $1,000 for each violation. These laws make it impossible for them to do what Americans have been doing since the founding of this country—join together to speak about issues that are important to them.
As Vance Justice explained, “We think that eminent domain is repulsive and jumped at the chance to help spread the message and inform our neighbors about Initiative 31. Instead, we ran into the heavy hand of government that would not let us speak unless we first sifted through a dizzying set of laws and registered with the government.”
“Protecting ordinary citizen speech from complex regulations backed by criminal penalties should be uncontroversial. But federal courts across the country don’t agree and have handed down a mish-mash of conflicting holdings in this area,” said Institute for Justice Senior Attorney Paul Avelar, lead counsel for the group of Mississippi friends. “In some parts of the country, groups like the one in this case are protected; in other parts of the country they are not. But First Amendment rights do not depend on geography.”
The federal courts are confused even though Supreme Court case law is clear and consistent. First, the Supreme Court has ruled—in precedents going back 30 years or more—that these political committee regulations are so onerous that they are like a ban on speech. Second, the Court has also consistently ruled—in precedents going back nearly 40 years—that speech about ballot issues is very different from speech by or about candidates, that there is no threat of corruption from ballot measure speech, and so there is little, if any, reason to regulate ballot measure speech. But the Supreme Court has never decided a case involving political committee regulations when applied to a small group speaking only about ballot issues.
“The Supreme Court struck down similar laws when they are applied to national unions like the AFL-CIO, sophisticated nonprofit groups like the Sierra Club and large corporations like General Motors—even when these groups talk about candidates. But here, five friends in Mississippi are forced to comply with nearly identical burdensome laws,” explained Avelar. “This makes no sense.”
“In America, the only thing you should need in order to speak is an opinion. But governments nationwide are tangling up citizen speech in so much red tape that it is becoming as difficult to speak about politics as it is to file your income tax return,” said Institute for Justice Attorney Diana Simpson, co-counsel for the Mississippi friends. “Thanks to these burdensome campaign finance laws, groups of concerned citizens need more than just their opinions to speak—they also need lawyers.”
Justice v. Hosemann, has drawn interest from several knowledgeable observers. The Center for Competitive Politics, CATO Institute, Independence Institute, and Cause of Action Institute submitted amicus briefs in support of the Mississippi friends. George Will and Robert Bauer, former White House Counsel to President Obama, have also written about the case.
The issues raised in Justice v. Hosemann affects literally every American. 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. Today, just for sharing their opinions, citizens across the country may be speech criminals and not even realize it.
The Supreme Court should take this case in order to establish nationwide precedent protecting the rights of ordinary Americans to speak without having to comply with burdensome campaign finance laws.
Justice v. Hosemann 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.