Unfree to Speak in Colorado—For Now

J. Justin Wilson
J. Justin Wilson · June 10, 2009

Arlington, Va—Americans should be free to speak out about public issues without the government getting in the way, but in Colorado that right is seriously in question.

The Colorado Supreme Court, in a short order issued June 1, refused to hear an appeal brought by the Independence Institute, a nonprofit policy group sued by a political opponent who sought to use the state’s vague and onerous campaign finance laws to shut down the group’s speech.

When the Independence Institute in 2005 spoke out about two tax referenda, a member of a campaign supporting the referenda sued the group, claiming it should have registered with the government and complied with burdensome and intrusive reporting regulations just to speak.  After incurring thousands of dollars in legal fees, the group joined with the Institute for Justice to challenge Colorado’s abusive campaign finance laws as a violation of First Amendment rights.  Last December, a state appellate court denied that claim, and the state Supreme Court let the ruling stand.

The Independence Institute’s case is not an anomaly.  The same thing happened to a group of neighbors in Parker North, Colo., when they opposed the annexation of their neighborhood in 2006.

“Under campaign finance laws, you now need a lawyer to voice your opinions on political issues,” said Steve Simpson, a senior attorney for the Institute for Justice.  “Unfortunately, by refusing to even hear the case, the Colorado Supreme Court is essentially ignoring the real effect these campaign finance laws have on First Amendment rights.”

Fortunately, this is not the end of the road for free speech in Colorado.  The Institute for Justice represents the Parker North neighbors in a similar challenge to the state’s campaign finance laws, and that case is currently before the 10th U.S. Circuit Court of Appeals.  IJ and the Independence Institute are also considering an appeal of Independence Institute v. Buescher to the U.S. Supreme Court.

What’s more, there is growing skepticism about laws like Colorado’s (and those in at least 24 other states) that regulate nonprofits and ordinary citizens for basic political speech.  In another IJ case, a federal district court in Florida last month struck down that state’s so-called “electioneering communications” law as overly burdensome on the free speech rights of civic groups.

And this month, the U.S. Supreme Court will decide Citizens United v. Federal Election Commission, in which a nonprofit is challenging the federal electioneering communications law (part of McCain-Feingold).  Under that law, the group was banned from distributing a movie critical of Hillary Clinton, and it was required to name the names of its financial backers.

During oral argument in March, justices asked government attorneys whether the law would also permit the banning of books calling for the election or defeat of candidates—and the government said that it would.

“When we are seriously talking about banning books and silencing groups of citizens simply because they speak out about politics, it is time to scrap the campaign finance laws,” Simpson said.

For more information on Independence Institute v. Buescher and IJ’s other First Amendment cases , visit www.ij.org/firstamendment.