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Supreme Court Should Protect Speech

BOZEMAN, Mont. — Every state in this extraordinarily beautiful country has its own stunning views.

With good reason Montana is called “Big Sky Country.”

It spans hundreds of miles.

It has mountains, valleys, and plains, plus rivers and lakes.

Among the more stunning views are those in Glacier National Park, along the Alberta border.

One additional advantage of traveling through Montana is that the speed limit on interstates is high.

Well, maybe not by Montanans’ standards, but certainly from the perspective of those from most other states.

So as big as Montana is, it doesn’t take all that long to traverse it.

Montana also has high-speed regulation of political speech.

It exceeds the First Amendment-based speed limit that the U.S. Supreme Court has established.

The court may decide as soon as May 28 whether to hear a First Amendment-based challenge to Montana political-speech law.

Much is at stake for the country, not just Montana.

The challenger happens to be the National Association for Gun Rights, Inc., yet the identity of the challenger is not the point.

As this columnist explained in a 2016 Regent University Law Review article, “the principles of law that follow apply to any organization, large or small, on any side of any issue. The organization might be a club, an association, a house of worship, a group of neighbors, a union, a mom-and-pop business, or a larger business, any of which might or might not be incorporated, and any of which might work with other similar or different organizations.”

The challenged Montana law doesn’t ban or otherwise limit political speech.

Rather, the challenged law regulates — that is, requires disclosure of –such speech.

Supreme Court decisions applying the First Amendment permit such regulation on two tracks.

Track 2 addresses speech that government may regulate with less burdensome, non-political-committee disclosure requirements. No Track 2 law is at issue here.

This challenge addresses only Track 1 law, which involves political-committee or political-committee-like burdens.

These are burdens that government may trigger for such organizations as candidate committees or political parties.

Among such burdens is registration, including treasurer designation, bank-account designation, and termination.

Also among such burdens are recordkeeping requirements, and requiring organizations to file income-and-spending reports that are extensive, ongoing, or both. “Ongoing” means in every reporting period, not just during periods when the organization engages in speech.

Some organizations forgo political speech to avoid bearing such burdens.

Why? Because, as the Supreme Court explained in Federal Election Commission v. Massachusetts Citizens for Life, Inc. in 1986, the organizations conclude such speech “is simply not worth it.”

So courts have applied the First Amendment to establish boundaries around such burdens.

Under the First Amendment, government may trigger such burdens only for organizations that (1) are under the control of candidates in their capacities as candidates, or (2) have “the major purpose” of nominating or electing candidates, or passing or defeating ballot measures, and engage in more than small-scale speech.

These principles have roots in two Supreme Court decisions: Buckley v. Valeo in 1976, and Massachusetts Citizens.

Some federal courts of appeal have rightly applied these principles to state law.

Some other federal courts of appeal, and a few states’ highest courts, have declined to apply some of them to state law. That’s wrong, because these are First Amendment principles, so they apply to both federal and state law.

This, in short, is the circuit split — the divide among courts outranked only by the Supreme Court.

To resolve the circuit split and protect such speech, the high court should hear the challenge to Montana law and apply these principles to state law.

Randy Elf’s amicus brief urging the Supreme Court to hear this challenge is at https://ssrn.com/abstract=3490176.

COPYRIGHT 2020 BY Randy Elf

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