R.I.P., Publius: SOS Miller in aggressive assault on free speech

Government needs to be transparent to citizens, not the other way around

Part I

America has a long history and tradition of “anonymous” free-speech rights.

That history ranges from when James Madison, Alexander Hamilton and John Jay authored The Federalist Papers — all writing under the “Publius” pseudonym — through the U.S. Supreme Court’s decision in 1958 protecting the right of NAACP donors to remain anonymous.

Indeed, as recently as 1995, the Court found unconstitutional an Ohio law that prohibited the distribution of anonymous campaign literature. That law, said the Court in McIntyre v. Ohio Elections Commission, “abridges the freedom of speech in violation of the First Amendment.”

Justice Clarence Thomas concurred with the Court’s liberal majority, but did so on originalist grounds, citing

… the historical evidence [that] indicates that Founding-era Americans opposed attempts to require that anonymous authors reveal their identities on the ground that forced disclosure violated the “freedom of the press.”

For example, the earliest and most famous American experience with freedom of the press, the 1735 Zenger trial, centered around anonymous political pamphlets. The case involved a printer, John Peter Zenger, who refused to reveal the anonymous authors of published attacks on the Crown governor of New York. When the governor and his council could not discover the identity of the authors, they prosecuted Zenger himself for seditious libel.

Although the case set the colonies afire for its example of a jury refusing to convict a defendant of seditious libel against Crown authorities, it also signified at an early moment the extent to which anonymity and the freedom of the press were intertwined in the early American mind.

That same 1995 McIntyre decision was the basis of a Ninth Circuit Court of Appeals ruling in 2004 that struck down a Nevada law prohibiting the distribution of anonymous campaign literature. The case was American Civil Liberties Union  v. Heller.

Said the Ninth Circuit: The Nevada statute, NRS 294A.320, was “facially unconstitutional because” — like Ohio’s law — “it violates the Free Speech Clause of the First Amendment.”

Notwithstanding the emphatically clear holdings in ACLU v. Heller and McIntyre, however, Nevada’s current secretary of state, Ross Miller, has regularly and insistently, in the last three legislative sessions, sought legal authority to suppress any anonymous campaign speech.

Moreover, from Nevada’s inattentive and apathetic lawmakers, he’s received that authority.

During both the 2009 and 2011 Nevada Legislatures, for example, Miller aggressively pushed through legislation that would entirely ignore the McIntyre and ACLU v. Heller precedents, although neither has ever been reversed. In 2011, his key anti-free-speech provisions became Nevada law. Today, the same rule that the Ninth Circuit vacated in 2004 is essentially back, as NRS 294A.348.

So now, once again, a basic and long-established component of First Amendment free speech has been outlawed in Nevada — no matter how sound the reason a speaker might have to not reveal his or her identity.

And those reasons, the courts have made clear, can be profound. The majority opinion in McIntyre cited Justice Hugo Black, writing for the Court in 1960, that “[p]ersecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all.”

Black, too, had noted that the arguments in the Federalist Papers favoring ratification of the Constitution had been advanced “under fictitious names.”

The scholarship of Thomas, however, went further. In his McIntyre concurrence, he pointed out that publishing articles and pamphlets anonymously had been a universal practice among thought leaders of the Constitution’s founding generation, regardless of their views.  

That fact demonstrates, wrote Thomas, “that the Framers shared the belief that such activity was firmly part of the freedom of the press. It is only an innovation of modern times that has permitted the regulation of anonymous speech.”

For government to compel the inclusion of the author’s identity within a published article or expression of opinion, the McIntire justices noted, is direct state interference in the content of the message the author seeks to convey:

On occasion, quite apart from any threat of persecution, an advocate may believe her ideas will be more persuasive if her readers are unaware of her identity. Anonymity thereby provides a way for a writer who may be personally unpopular to ensure that readers will not prejudge her message simply because they do not like its proponent.

Clearly, that was the view of Madison, Hamilton and Jay: They wanted their arguments considered on the merits of those arguments.

The view among Anti-Federalists, noted Thomas, was similar:

Publius’s opponents, the Anti-Federalists, also tended to publish under pseudonyms: prominent among them were “Cato,” believed to be New York Governor George Clinton; “Centinel,” probably Samuel Bryan or his father, Pennsylvania judge and legislator George Bryan; “The Federal Farmer,” who may have been Richard Henry Lee, a Virginia member of the Continental Congress and a signer of the Declaration of Independence; and “Brutus,” who may have been Robert Yates, a New York Supreme Court justice who walked out on the Constitutional Convention.

Thus the historical record is clear: Your right to write and anonymously publish your thoughts on important political questions of the day is nothing less than a founding principle of these United States.

So why is the current Nevada secretary of state so eager to attack that right? Under his 2011 legislation, you are now subject to $5,000-per-count fines if you emulate the Founders.

To lawmakers in the 2011 session, Miller repeatedly asserted his goal is “transparency” — that and getting a good grade from a committee of lawyers in Southern California:

The Campaign Disclosure Project — a collaboration of the UCLA School of Law, the Center for Governmental Studies, the California Voter Foundation, and supported by the Pew Charitable Trust — gave Nevada an F in 2008 for the state's campaign disclosure law, electronic filing program, and report accessibility. That is the same grade Nevada received in the Project's previous four reports. In the real world there is a term for that — it is called flunking out. I am not going to flunk out, and I do not think any of you here want to.   

“In the broad overview,” he said, “the policy changes we are looking to make with both bills [AB 81 and AB 82] cover the areas of increased transparency and … [a] big part of the transparency is letting voters know who is funding the campaigns.”

Actually, the real present-day “transparency” movement has been a movement to ensure that government is transparent to citizens. It has never been to make the intentions and political views of citizens — the ultimate authority over government — transparent to government agencies and subject to those agencies’ reviews and regulations.

Revealingly, Secretary of State Miller gets this important issue exactly backwards.

Moreover, it isn’t as though Miller has not been warned about his eagerness to nullify First Amendment rights. In both 2009 and 2011, multiple witnesses appeared before the state legislature’s election committees to explain in detail how his proposed changes in Nevada law ran roughshod over constitutional values.

In 2009, for example, the American Civil Liberties Union’s Lee Rowland pointed out that Miller repeatedly, in multiple versions of his legislation, continued to ask lawmakers to institute prior restraint on political speech — such that

… if your baseball team got together and all agreed that a ballot [measure] was a bad idea, you would all need to promptly go register with the Secretary of State if you intended to inform anyone else of that opinion.

And even after that provision had been corrected in a second draft of AB 82, another section required, said Rowland, that

… any individual in Nevada who decided to go online and donate to any group or individual, rather than giving a donation online, would first have had to register with the secretary of state's office.

Janine Hansen, of the conservative Nevada Eagle Forum, stood with the liberal Nevada ACLU on its constitutional objections. She also made it clear that the fact cited by Justice Hugo Black in 1960 — that individuals who support unpopular causes and whose names are made public can find it genuinely dangerous — remains true today:

Everyone is aware of what happened in California on Proposition 8. Those who donated as little as $100 to Prop 8 had their names and addresses published with maps on the Internet, as a means of targeting them for harassment, intimidation, persecution and abuse. Some of the leaders of Prop 8 had to have bodyguards to protect them. You can see an example of these maps at: http://www.eightmaps.com/ ....  

She quoted a letter from an evangelical Christian who called on other evangelicals to support members of the Mormon church active in the Proposition 8 campaign, saying

… we have seen instances of vandalism, property destruction, and some leaders in the fight currently find themselves with armed protection because of the threats made against them and their families.

Hansen told lawmakers she herself had experienced the same thing:

I am not unfamiliar with this kind of persecution, but my point is that this law [which] repeals the $1,000 limit and moves it to $100 … makes people who are interested in a ballot position targets, as in California, for persecution. For several years, I had to have a body guard because of my participation in particular issues. I could not go to political events without one, so this, to me, is a critical issue and a significant policy change.

All this testimony was during the 2009 Nevada Legislature. Similar information was given lawmakers during the 2011 legislative session.

How and why that testimony was largely ignored is the subject of Part 2 of this series.

Steven Miller is vice president for policy at the Nevada Policy Research Institute. For more visit http://npri.org.

Read more:

• Part II - R.I.P., Publius: First Amendment no longer protects all political speech
• Part III - R.I.P., Publius: SOS Miller, AG Masto, target party’s opponents