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Protecting the freedom to speak (and to annoy politicians)

The U.S. and Arizona constitutions are meant to limit government power, but these limits are meaningless unless judges enforce them.

Enforcing constitutional limits is the essence of judicial engagement.

A recent Arizona case demonstrates why it is vitally important that judges be appropriately engaged in protecting constitutional rights, including the right to free speech.

During the 2008 elections, the Scottsdale Area Chamber of Commerce ran two ads that reflected well on four candidates for Scottsdale city office.  Not surprisingly, those candidates’ opponents were not happy about the “good press.”

Also not surprising is what happened next.

At least one of the opponents got the city to try to punish the chamber for speaking out.  Scottsdale — now with some of those people on the city council — accused the chamber of violating campaign finance laws and tried to impose significant financial penalties.

Campaign finance laws regulate how people can spend money to communicate their message during elections and therefore limit people’s ability to express themselves.  Besides restricting the manner and timing of political speech, campaign finance laws also require speakers to register with the government, disclose heaps of personal information, and jump through a dizzying array of hoops just to talk about politics.

There has been a proliferation of campaign finance laws lately, and many are virtually incomprehensible.  As a result, it can be quite difficult for people to know what speech is permitted and what speech is forbidden.  This leaves even sophisticated people — much less political neophytes — hesitant to speak in the first place:  If you’re not sure whether it’s legal for you to speak, why take the chance that your political opponents will use the government to punish you for speaking?

But as the Supreme Court has recognized, the “First Amendment does not permit laws that force speakers to retain a campaign finance attorney… before discussing the most salient political issues of our day.”

Fortunately for the chamber, the judge hearing the case understood these principles and threw the case out.  Scottsdale agreed to drop the whole mess, and the matter is now closed.

Unfortunately for the rest of us, confusion still reigns.  The laws are still in effect and still unclear.  We are all potentially at risk when we speak about politics in Arizona.

The First Amendment states plainly that government “shall make no law…abridging the freedom of speech.”  When courts fail to enforce that limit — or any other limit on government power — we are left to rely on the self-restraint of public officials, which experience has shown is no restraint at all and inevitably leads to the loss of freedom.

The judge in the chamber’s case got it right.  But now we need the rest of Arizona’s judges to demand that the laws affecting speech are clear and constitutional.  Unless judges fulfill their role as a meaningful check on the other branches of government, politicians can use vague, ambiguous, and speech-chilling laws to silence people who oppose them.

— Paul Avelar is an attorney with the Institute for Justice in Tempe.

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