Tuesday, April 05, 2016
To: Neil Danberg
General Counsel
Nebrasksa Accountability and Disclosure Commission
From: Robbin Stewart
04/05/16
Confirming our conversation, thank you for meeting with me this morning.
I discussed with you that it is my belief that the Commission's practice of enforcing disclaimer requirements is unlawful and should cease. I referenced McIntyre v Ohio Elections Commission (1995) and the subsequent NE AGO opinion which stated that 49-1474 is unconstitutional per McIntyre.
You asked for a couple of days to get up to speed on the issue, which is fine.
The Commission's policies are set forth on pp 12-13 of the “Candidate Brochure – Election Year 2016”.
A closer look at that document answered a few of my specific questions.
The Commission does apply its disclaimer policy to statements on the internet, but exempts yard signs and billboards (and certain other items as listed in regulation 8.) The attempted regulation of the internet runs into the problems discussed in ACLU v Reno.
I am not opposed to the disclaimer requirement for automatically dialed phone calls, which involve a different calculation of privacy interests. Additionally I will note that Citizens United carved out an exception for speech funded by corporations – I would have no objection to a rule narrowly tailored to speech by corporations and speech made by automatically dialed telephone calls.
The statutes (49-14,123) authorize the Commission to enact regulations implementing the statute.
It would be possible for us to resolve this dispute if the commission would promptly replace current Chapter 8 with a regulation narrowly tailored to the above two situations.
I would be happy to work you and the Commission on such a drafting process as an alternative to litigation.
In the event that we can not work out some such amicable solution, I am prepared if needed to take other measures. I first litigated this issue in 1997, in Stewart v Taylor.
I did not get into it in our discussion, but McIntyre is neither the first nor the last Supreme Court case to find that disclaimer rules are unconstitutional. Talley v California (1960) is the landmark case. The question presented in McIntyre was whether there was any “elections exception” tot he rule in Talley that anonymous speech is protcxted by the First Amendment and therefore disclaimer requirements are unconstitutional. The holding was that there is no such exception. So it is not an adequate response to McIntyre to exempt fliers or little old ladies or referenda – McIntyre was a broad holding that disclaimer cannot be required in elections. See also Buckley v ACLF, Watchtower v Stratton, Tornillo v Miami Herald, Riley v Federation of the Blind, Wooley v Maynard, AID v Open Society Institute.
I can also point to 40 lower court cases upholding the right of anonymous political speech. There are at least a dozen cases on the other side as well; courts have never been unanimous in following Talley and McIntyre, but that is the trend. I am not aware of any Nebraska case directly on point.
The Nebraska Constitution also protects free speech and press, and each of the commission members has, I think, sworn to uphold both constitutions. I am unclear about whether the commission members have absolute immunity for violations of either constitution. What they don't have is qualified immunity, because McIntyre is well-established authority. While the Commission's actions are technically illegal under federal civil rights statutes, I am sure that criminal prosecution is off the table. But some of the Commission are attorneys or otherwise have codes off professional responsibility to follow, and any deliberate willful continuing violation of federal civil rights, here the right to freedom of the press, free speech, and free elections, would raise ethical concerns I might be professionally obligated to report.
I hope we can talk before the Commission's next meeting on April 8th. While I hope to attend, I expect that you will discuss this matter with the Commission in the Closed Session portion of the meeting.
Again, I thank you for the time you took to meet with me,and hope we can work this out constructively.
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