Editorial: Free speech a right, not a privilege that requires a permit

Pals of Nevada Secretary of State Ross Miller, who is running this year as Democratic candidate for attorney general, are trying to gag a group that has been running a 30-second television and Internet ad ridiculing Miller for taking $60,000 in gifts — including tickets to mixed martial arts fights and shows on the Las Vegas Strip.

A group calling itself Nevadans for a Brighter Future filed the complaint against State Government Leadership Foundation, which says it is spending $500,000 to point out Miller’s lifestyle. There is also a website at millershouseofcards.com, which claims Miller has been hiding assets, taking lavish gifts and has been investigated for ethics slip-ups.

The complaint — which was filed with the Secretary of State’s Elections Division, but is expected to be handed over to the attorney general due to an obvious conflict of interest — accuses the SGLF of not complying with a Nevada law that demands groups spending money to speak out on campaigns and issues register with the Secretary of State as a political action committee and report its spending and donations. The law has been used as a cudgel by Miller for years to go after people engaging in political free speech.

“Fancy parties, exclusive sporting events. Posing with celebrities — even Playmates,” the ad says, while showing photos of Miller with boxer Mike Tyson and Las Vegas entertainer Holly Madison. “Ah, one can dream, but for politician Ross Miller it’s reality.”

The ad concludes, “He lives the life. You pay the tab. Tell Ross Miller to stop living the high life at your expense.”

But the complaint claims the ad constitutes “express advocacy,” which is prohibited under the law unless you register and file financial disclosure reports. The ad doesn’t even mention that Miller is standing for election, much less expressly advocate for or against his election.

A similar complaint was tossed out of court a couple of years ago because it was found the communication in question was not “express advocacy.”

Carson City Senor District Judge Robert Estes found the Secretary of State’s case against Americans for Prosperity lacking because the statute applies only to those spending money “on behalf” of a candidate.

Americans for Prosperity — funded by conservative billionaires Charles and David Koch — sent out mailers in 2012 during the election campaign of Kelvin Atkinson for state Senate. Those mailers criticized Atkinson for co-sponsoring a 2011 renewable energy bill. But the mailers never mentioned his candidacy.

Of course, that is merely a technicality under the law, which itself law is palpably unconstitutional. The First Amendment prohibits abridgement of free speech by Congress and the 14th Amendment extends that prohibition to states. Requiring registration and reporting of donors is an abridgement. Period.

And the one thing the First Amendment is clearly intended to protect is express advocacy.

In the Supreme Court case Citizens United, the court held that groups, corporations and unions may not be singled out and barred from spending their own money in support of or opposition to a candidate or a cause.

Justice Antonin Scalia wrote in a concurrence: “The (First) Amendment is written in terms of ‘speech,’ not speakers. Its text offers no foothold for excluding any category of speaker, from single individuals to partnerships of individuals, to unincorporated associations of individuals, to incorporated associations of individuals — and the dissent offers no evidence about the original meaning of the text to support any such exclusion. We are therefore simply left with the question whether the speech at issue in this case is ‘speech’ covered by the First Amendment. No one says otherwise.”

Free speech is a right, not a privilege that requires a permit or disclosure of donors. The entire Nevada law should be repealed or declared unconstitutional. — TM

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Comments

  1. T.L. Hurd says:

    It is a sad state of affairs that many Americans think that the government (whatever that might be) grants us the rights guaranteed in the Constitution. That is the road to slavery. We have rights by virtue of being here and being who we are; all people have those same rights. The honest job of Government is to assure that these natural rights are not denied.

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