Del Papa vows to defend law on campaign materials

Tuesday, April 11, 2000 | 10:37 a.m.

CARSON CITY -- Attorney General Frankie Sue Del Papa said Monday she would "vigorously defend" Nevada's law that prohibits people from distributing anonymous political campaign materials aimed at damaging the reputation of an individual.

Del Papa said she would file a motion by April 27 in federal court in Las Vegas to dismiss the lawsuit brought by the American Civil Liberties Union against her and Secretary of State Dean Heller, the chief election officer for the state.

Del Papa and Heller were served Friday with the suit that seeks to have the law declared unconstitutional and to prohibit state officials from enforcing it.

Meanwhile, in a case that strikes at the heart of the issue, the attorney for Las Vegas' largest direct mailing company says he has responded to a federal grand jury subpoena stemming from a critical depiction of County Commissioner Lance Malone in a flier from an anonymous sender.

John Boyer, attorney for Passkey Systems, which mailed thousands of anonymous fliers last month with the headline "You Just Can't Trust Lance Malone," said the invoices and other documents requested in the subpoena issued last week were handed over to the U.S. Attorney General's office on Monday.

The fliers criticized Malone's swing vote Jan. 19 approving a casino in highly residential Spring Valley -- a decision that angered groups that oppose neighborhood casinos.

The federal grand jury is expected to hear the matter at 8:30 a.m. Wednesday at the Foley Federal Building. A source close to the case says federal officials are trying to determine if federal mail fraud was committed.

The anonymously written flier claims Malone, "took over $100,000 from companies that support more neighborhood casinos."

The law outlawing certain anonymous political materials was enacted in 1989 and amended in 1997.

The law violates the rights of privacy and free speech, said Allen Lichtenstein of the ACLU. The U.S. Supreme Court has held that a person has the right of free speech and the right to choose not to say certain things, such as not to say who you are, he said.

Del Papa noted that a federal appeals court upheld the ban on anonymous campaign materials in a Kentucky case. This case, she said, backs Nevada law, but she said her office is doing more research.

The ACLU suit followed the filing of a lawsuit by Malone in state District Court to try to find the identity of the individual or group that paid for the flier.

Malone has since dropped his lawsuit, but a federal grand jury is reportedly looking into the case. Malone's lawyer, Don Campbell, said the suit was withdrawn so as not to cloud the grand jury inquiry.

"The Lance Malone case brought the issue to the forefront," Lichtenstein said. "It became more of an immediate kind of threat. I am not aware of any enforcement in the past."

Gary Peck, executive director of the ACLU in Nevada, said he was distressed by the actions of both Malone and Del Papa.

"Malone has every right to play the system to his advantage," Peck said. "It is quite clear that is what he is doing."

In the case of the attorney general, Peck said the ACLU asked her for a legal opinion on the validity of the law but her office refused on grounds it does not give legal advice to private parties. He said the attorney general's office apparently issued a legal opinion to Malone's lawyer.

He questioned whether the policy is being practiced in an even-handed matter.