Institute for Justice · January 21, 2016

On January 21, 2016, a concerned Colorado citizen joined with the Institute for Justice (IJ) to file a federal lawsuit against the Colorado secretary of state, seeking to ensure that anyone in Colorado can speak freely about the political issues that matter to them without fear of being hauled off to court. The case is Tammy Holland v. Wayne W. Williams.

Last September, Tammy Holland, a mom from Strasburg, Colorado, took out two ads in her local newspaper, The I-70 Scout. The ads alerted the public to an upcoming school board election and urged voters to familiarize themselves with all of the candidates, including the six candidates who would be competing with incumbent school board members. Tammy did not endorse any particular candidate; she just wanted voters to know their options. For the ads, Tammy found herself sued not once, but twice, by school board officials who sought to silence her speech.

“I never would have imagined that in America I could be sued simply for putting an ad in my local newspaper,” said Tammy. “If this can happen to me, this can happen to anyone who voices their opinion about politicians or political issues.”

Indeed, Tammy’s situation is far from unique. Hundreds of individuals and groups have found themselves in the same position as a direct consequence of Colorado’s private-enforcement law, under which any person can file a private lawsuit and take you to court by merely alleging that you have violated the state’s campaign-finance laws.

“Colorado private-enforcement law is shocking in how few protections it provides speakers,” said IJ Attorney Sam Gedge. “Colorado has none of the safeguards for speakers that are a common part of campaign-finance enforcement in virtually every other state in the country. At every step along the way, the system is built to favor and encourage abusive, meritless litigation.”

Under Colorado law, a single email to the secretary of state can trigger full-blown litigation. Those who are hit with these lawsuits have no right to a public defender; if they want a lawyer, they have to pay for one out of their own pocket. And with no oversight by any government official to screen out frivolous or legally insufficient complaints—like the complaints filed against Tammy—the system is rife with abuse, with politicians and their allies routinely filing complaints to silence or intimidate those who would dare to criticize them.

IJ Senior Attorney Paul Sherman said, “Colorado has essentially outsourced the enforcement of its campaign-finance laws to every politico with an ax to grind. That’s not just bad policy, it’s unconstitutional. Under the First Amendment, nobody should have to fear being sued by their political opponents merely for expressing their opinion on the issues that matter most to them.”

Although Secretary of State Wayne Williams—the defendant in Tammy’s newly filed lawsuit—is charged with administering Colorado’s private-enforcement system, it seems that he agrees with many of the criticisms against it. In a recent legislative statement, Secretary Williams complained that the “current scheme allows frivolous and litigious complainants to potentially violate the free speech and due process rights of those seeking to lawfully participate in political discourse.”

Sherman concluded, “Secretary Williams’ criticisms of Colorado’s private-enforcement system are a welcome recognition that this system chills speech and needs to go. In a society that values free expression, nothing could be more dangerous than giving politicians and their allies the power to sue anyone who publicly disagrees with them.”