Appeals court strikes down Nevada campaign law

Friday, Aug. 6, 2004 | 3:40 a.m.

CARSON CITY -- A federal appeals court Friday struck down a Nevada law that required political pamphlets and campaign publications to contain the names of those who financed them.

The 9th U.S. Circuit Court of Appeals said the law "is facially unconstitutional because it violates the Free Speech Clause of the First Amendment" in a case brought by the American Civil Liberties Union of Nevada.

The court, in a decision written by Judge Marsha S. Berzon, said Nevada's law is overly broad because it applies to all publications in an election and there is no time limit when it should apply.

The decision overturns the ruling of U.S. District Judge David Hagen of Reno, who found the law was valid. The appeals court also refused the argument of the state, on behalf of Secretary of State Dean Heller, that the case should be referred to the Nevada Supreme Court.

The law was first invoked in the case of public relations executives Tom Skancke and Mark Brown of Las Vegas and Station Casinos, who were accused of distributing some 39,000 anonymous campaign fliers criticizing Clark County Commissioner Lance Malone for voting to support a casino in southwest Las Vegas that he had earlier pledged to oppose. That casino had been opposed by Station Casinos.

Brown was a vice president at Station and Skancke was on contract with the casino company.

Malone was defeated in the primary election in 2000.

Civil suits were filed by the secretary of state's office. An out-of-court settlement was reached in which Skancke paid a $3,500 fine and Brown and Station each agreed to pay a $5,000 penalty to the secretary of state's office. Station Casinos also agreed to pay a $450,000 penalty to the state Gaming Control Board for failing to properly supervise Brown.

When informed of the 9th Circuit's decision, Skancke quipped, "Do I get a refund?" He said the appeals court "has upheld the original considerations and premises of the U.S. Constitution and that their (the 9th circuit) ruling has upheld the First Amendment and our freedom of expression in our culture and in our politics."

He said the ruling is "bigger than the Lance Malone mailer. It is about what we do every day."

Brown could not be reached for comment.

Gary Peck, executive director of the ACLU for Nevada, said, "We have not had a chance to read and analyze it but it seems it is a victory for the First Amendment. We are certainly heartened by that."

Allen Lichtenstein, a lawyer for the ACLU of Nevada, said "This is an important ruling in light of the upcoming political season. The court reiterates the point of the need for free and unfettered discussion."

"There's nothing in the decision that talks about retroactivity," Lichtenstein said when asked whether the previous fines imposed could be refunded.

"The decision makes a distinction between the reporting of contributions and putting your name on a document being circulated," he said.

Nevada laws requires political contributions to be reported.

The secretary of state's office withheld immediate comment until it had a chance to study the 41-page opinion.

The law requires that campaign materials must identify the persons paying for their publication. There are exemptions if a candidate or political party pays for billboards, signs or other advertisements referring to that candidate. It also exempts a person who acts independently and not in cooperation with any business or social organization.

The law was enacted to prevent anonymous smear tactics in a campaign.

The ACLU brought suit in behalf of Peck, who said the group's members wanted to engage in anonymous speech in an upcoming city of Las Vegas referendum concerning pay raises for the City Council and mayor and a ballot initiative of North Las Vegas concerning public comment at council meeting.

The ACLU said it wanted to produce and distribute anonymous political fliers on various initiatives in the 2002 election "but did not for fear of prosecution" under the law.

The appeals court said the Nevada law applies to material or information "relating to an election, candidate or any question," a description that is overbroad. For instance, the court decision said the state law could apply to clearly constitutionally protected discussions of election procedures, analyses of polling results and nonpartisan get-out-the-vote drives.

The state attorney general's office, which represented Heller, argued that the law is narrowly tailored to protect candidates from unscrupulous attacks by requiring those who seek to mislead the public to disclose their identities.

The appeals court said, however, this law affects far more speech than just some misleading comments.

Judge Berzon also noted inconsistencies in the law. She said an anonymous flier created by a single rich individual for $1 million is permitted while a small group raising a few hundred dollars for an anonymous political flier would be breaking the law.

The appeals court said, however, that the state might be able to craft a law that could achieve its goal. "As we have developed, Nevada's statute is particularly ill-designed for this purpose.

"An on-publication identification requirement carefully tailored to further a state's campaign finance laws, or to prevent the corruption of public officials, could well pass constitutional muster," the ruling said. "Nevada's statute, however, is simply not a viable example of such legislation."