ACLU to extend fight against ‘frightening’ campaign law

Tuesday, Nov. 3, 1998 | 11:06 a.m.

CARSON CITY -- Despite a setback in federal court, the American Civil Liberties Union vowed Monday to continue its fight against a Nevada law that allows political candidates to be fined for making false statements about their opponents.

U.S. District Judge Philip Pro has rejected the motion of the ACLU to intervene in the case in which Las Vegas Assembly candidate Bob Beers is contesting a $5,000 fine imposed by the state Ethics Commission.

The commission found that Beers made a false statement with malice about his opponent, Dennis Silvers, in the Republican primary election, which Beers won.

Gary Peck, executive director of the Nevada ACLU, and lawyer Allen Lichtenstein, said this issue is broader than the Beers' case alone. It applies to anybody who makes a political statement about a candidate or a ballot issue, they said.

"This is really a threat to the First Amendment and to the Free Press and a threat to everybody's freedom of political expression and speech," Peck said.

But Louis Ling, deputy attorney general for the Ethics Commission, said other states have similar laws that have been upheld as constitutional. The facts are not in dispute but merely an interpretation of the law. He declined further comment because the case is pending.

In a campaign flier, Beers hinted that Silvers committed arson in a restaurant he once owned. The commission said Beers knew Silvers was never charged or convicted of arson, "so his implied assertion was made both knowingly and with reckless disregard for the truth." The commission said Beers was trying to throw a roadblock in the path of Silvers' campaign.

Beers won the primary election and faces Democrat Vincent Triggs, a former two-term assemblyman in District 4 in today's election.

Nevada law says that "a person shall not, with actual malice and the intent to impede the success of a campaign of a candidate, cause to be published a false statement of fact concerning the candidate ..." It then lists examples, such as allegations that a candidate has been indicted or convicted of a crime of moral turpitude, dishonesty or corruption.

Lichtenstein said the law creates a "politically appointed body to decide the truth," and there's no due process of law. He said a person accused has two days to reply and no chance of discovery. "There is no way to marshal a defense. Many of the things are not defamatory, but protected speech."

Judge Pro, in denying the ACLU's motion to intervene, suggested it might want to file a "friend of the court" brief, but Lichtenstein said that was inadequate. "One way or another we will be in this fight. If we are banned from this challenge, we will file a separate challenge. We will be fully heard on this issue."

The Ethics Commission operates as a censorship board, Peck said.

"It seems more appropriate as a body for the Soviet Union in the 1950s," he said. "This is a law that those who make a false statement in the course of a political campaign can be investigated and fined. If they can do that, why not a truth commission and a censorship board?

"This sets a frightening precedent for all people in Nevada, foremost for journalists."

In denying the intervention motion, Pro said the ACLU would not make a unique contribution or provide special expertise or unusual insight on the issue. Peck challenged the finding, saying the ACLU has been involved for 80 years in fighting these types of cases. Peck and Lichtenstein both complained that Pro made his ruling before their side had a chance to respond to the state's motion blocking the intervention.

"Ours is a political process that depends on robust and rough-and-tumble debate," Peck said. "This is a downright threatening law."