In Today's America, Consult Your Attorney Before Speaking Freely
Freedom Of Speech, By Norman Rockwell
Norman Rockwell’s iconic 1943 oil painting, “Freedom of Speech,” depicts a defining American scene: a seemingly average man mustering the courage to express publicly his opinion at what appears to be a New England town hall meeting. As memorably described by Bruce Cole, art historian and former chairman of the National Endowment for the Humanities:
In modern America, however, it appears the man in Rockwell’s painting might be advised to be very careful what he says, how he says it, and to whom he says it at the town hall. A few wrong moves and one of the townspeople wearing ties might report him to the local election commission. He might be required to register as a Political Action Committee and make filings with the state. He could face significant administrative expenses, and need to hire a financial staff. Indeed, it would probably be best if he brought an attorney with him to the meeting, lest he run afoul of the rules regarding political speech and advocacy.“Rockwell focuses attention on the standing speaker whose age, worn and stained jacket, rough hands with dirty fingernails, and plaid shirt set him apart from the neat coats, ties and white shirts of the older men in the audience. Although he is a working man, this figure, his face reminiscent of Lincoln’s, is unafraid to voice his opinion—which we suspect is contrary to that of the others in the room. Standing tall, his mouth open, his shining eyes transfixed, he speaks his mind, untrammeled and unafraid. In Rockwell’s vision he has become not only an active public participant in democracy, but a defender of it. He is the very embodiment of free speech, a living manifestation of that abstract right….”
While this may sound hyperbolic if not downright absurd in America, it is the inescapable conclusion one reaches in reading the petition papers filed recently with the U.S. Supreme Court in the case of Edmund Corsi & Geauga Constitutional Council v. Ohio Elections Commission.
According to lower court rulings in Ohio and the findings of the Ohio Elections Commission, it seems that Mr. Corsi, a resident of Geauga County near Cleveland, believes “that most elected officials ignore the constitution and, as a result, he is concerned that he will lose his freedoms in this country.” Mr. Corsi wrote and distributed pamphlets and formed a website under the name of the Geauga Constitutional Council (GCC) to express his views. He never formally incorporated the GCC, and it seems to have largely acted as a pseudonym. He paid $40 a month to maintain his website and held informational events at which he provided food and for which he sometimes charged a small entrance fee. Mr. Corsi estimated that he spent a “couple hundred dollars” publishing his pamphlets.
Mr. Corsi got in trouble when he hosted, under the name of the GCC, a booth at the Geauga County Fair, where he handed out brochures. He was ratted out by a member of the local board of elections who was also in attendance at the fair. This commissar (who is also a local Republican party official and had been the object of critical blog postings by Mr. Corsi) discovered that the brochures did not contain the disclaimers required of political action committees under Ohio election law. He later found a further threat to public safety: the GCC had not designated a treasurer and had made no filings with the county board of elections.
The State of Ohio has a law which defines a “Political Action Committee” as follows:
“A combination of two or more persons, the primary or major purpose of which is to support or oppose any candidate, political party, or issue, or to influence the result of any election through express advocacy…”It does not take much imagination to see how language this vague could be used by bureaucrats of whatever stripe to persecute and stifle a virtually limitless variety of activities and speech that were once considered inviolate American liberties. What is the nature of the “combination” that must occur? How is their “major purpose” to be determined? Must a homosexual couple that advocates together for candidates who support gay marriage register as a PAC? How about a group of woman who periodically meet for coffee and invite speakers who promote abortion rights? Indeed, can the “primary purpose” of any loose gathering of a few individuals be determined in a remotely objective and consistent way that does not leave them permanently uncertain if they have crossed a regulatory line and subject to fines, possible prosecution or other sanctions?
The state election commission and Ohio courts went to great lengths to establish that Mr. Corsi’s activities and those of his alter ego, the GCC, should be classified as a PAC, thus requiring registration, legal expenses, and ongoing filings with the state. They noted repeatedly how in his brochures and blog posts on behalf of the GCC, Mr. Corsi used plural pronouns like “we” and “our” to describe his activities. Moreover, the authorities found that other individuals had worked with him, attended events, or even claimed to be a “members” of the GCC, although the organization seems to have had no by-laws, formal records or membership roster. In language perhaps more reminiscent of a presidential assassination inquiry, a lower Ohio court found that the election commission had investigated the matter and
“did not believe that Mr. Corsi was acting alone since the evidence overwhelmingly supported that the conduct and activities of the GCC were being implemented by two or more persons.” [emphasis added]A vast conspiracy thus established, and the “lone speaker” theory having been debunked, the courts concluded that the GCC was indeed a PAC, and had improperly failed to designate a treasurer or to make mandatory PAC filings.
Mr. Corsi now argues that the Ohio courts have erred in their application of the PAC registration requirement to him and the GCC. Indeed, in the Ohio courts, Mr. Corsi argued that the vast majority of the GCC’s work has nothing to do with the dreaded “express advocacy” regulated by Ohio law. He posted on his blog “nearly every day for three years” but the election commission could only find a few cases of express advocacy of candidates. One would think that the idea of government officials studying and classifying the political content of citizen-bloggers would be fundamentally chilling in a nation grounded in the First Amendment. But this is what Ohio law, and similar statutes in others states, seem to require.
No inquiry was made by the Ohio courts to determine the scope of the GCC’s political activities or “express advocacy” as required by the state’s definition of a PAC. Indeed, it is hard to see how making such a determination is even a logical possibility, given that the GCC’s existence appears to have been largely an abstract creation of Mr. Corsi’s imagination; Where do the GCC’s activities begin and those of Mr. Corsi himself end? If he and a friend distribute ten “GCC” pamphlets on a street corner, are they instantly classified as a PAC? These are the kinds of Alice in Wonderland questions that modern campaign finance law imposes on citizens and courts.
Mr. Corsi and his attorneys at two public interest law firms, the Columbus-based 1851 Center for Constitutional Law and the Virginia-based Center for Competitive Politics, have asked the Supreme Court to review his case. They argue that Ohio failed to follow prior Supreme Court precedents going back to the1970s, which established standards of review for determining the nature and magnitude of political activity engaged in by various groups. The Supreme Court now has an opportunity to constrain increasingly widespread attempts by states and localities (often at the behest of incumbent politicians) to stifle political speech and advocacy.
In the meantime, Rockwell’s man in the worn jacket better stay off the internet and be careful what he says. The guys in ties are listening.
Mr. Shuchman is a New York fund manager. In addition to contributing often to Forbes, he has written for The Wall Street Journal, Reason, RealClearMarkets.com and other publications. His views are his own.
http://www.forbes.com/sites/realspin/2013/07/11/in-todays-america-consult-your-attorney-before-speaking-freely/
