Appeals court voids law requiring names on political campaign fliers

Monday, Aug. 9, 2004 | 9:37 a.m.

CARSON CITY -- A law used to fine a Las Vegas casino and two public relations executives for their part in a 2000 political campaign has been ruled unconstitutional by a federal appeals court, but there apparently won't be any refunds.

Allen Lichtenstein, attorney for the ACLU of Nevada, said he was very pleased that the 9th U.S. Circuit Court of Appeal voided the law that requires political campaign fliers to include the names of those who are financing the materials.

The court, in a unanimous decision Friday, held the law overly restrictive and unconstitutional because it violates the right to free speech. The case was first filed in March 2000 and bounced back and forth between the federal district court and the appeals court.

Attorney General Brian Sandoval said the court struck down the Nevada law but it also held that the state could draft a law that could meet the constitutional guidelines. The decision, Sandoval said, sends the case back to the federal district court and it may require additional briefs.

Sandoval said any new law would have to be passed by the Legislature. He said the decision is being studied and analyzed further.

Lichtenstein said the unanimous decision, written by Judge Marsha Berzon, comes at an important time as the political season heats up. It reiterates "the point of the need for free and unfettered discussion," Lichtenstein said.

The law was challenged by the ACLU of Nevada. But it was first used against Station Casinos, its then vice president Mark Brown and Tom Skancke, who was under contract to the gaming property.

About 29,000 fliers were distributed criticizing Clark County Commissioner Lance Malone for switching his vote to allow a casino to be located in southwest Las Vegas that was opposed by Station Casinos. The document had a headline "You can't trust Lance Malone," and he was defeated in the next election.

Secretary of State Dean Heller filed suit. An out-of-court settlement was reached for Station and Brown to each pay a $5,000 fine and Skancke to pay $3,500. Station Casinos also paid a $450,000 fine to the state Gaming Control Board, which alleged it did not properly oversee its executive.

Lichtenstein said there was nothing in the decision that referred to the decision being retroactive. In addition, he said the decision does not change the campaign finance laws that require persons to report money they spent in the election.

When informed of the appeals court decision, Skancke joked, "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.

The law was enacted to protect candidates from smear attacks by unidentified persons that could mislead the voters.

Judge Berzon said the law "reaches far more core political speech than is necessary to achieve the state's otherwise legitimate interests and advances those interests poorly, if at all."

The law requires campaign materials to carry the name of those who paid for them. There are exceptions, such as a candidate or political party that pays for billboards, signs or other advertisements in behalf of the candidate. It also exempts a person who acts independently and not in cooperation with any business or social organization.

The court said the law was too broad. It imposes the requirement on all materials distributed in a campaign and there was no restriction on the time they could be passed out, the court ruled.

The ACLU brought suit on behalf of executive director Gary Peck, who alleged 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" and that is wide open. For instance, it said it could apply to discussions of election procedures, analyses of polling results and nonpartisan get-out-the-vote drives.

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

But she wrote, "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. Nevada's statute, however, is simply not a viable example of such legislation."

A similar federal statute has been on the books for years requiring such literature contain the name of the campaign that finances it.

However, Joan Howarth, associate dean of the Boyd Law School at UNLV and a constitutional law expert, said Friday's ruling will likely have little impact on the federal law, as the Nevada statute that was struck down was criticized for being too broad.

The federal law, by comparison, is narrower, requiring pamphlets and other literature to have disclaimers saying a candidate authorized its printing, she said.

"The Nevada statute is much broader than the federal statutes," Howarth said.

The impact of the court's decision remains to be seen, she said, as future challenges could undermine its clout.

"We don't know whether the 9th Circuit opinion will be the final answer in this case," Howarth said. "Even if this does stand, it strikes me that the court's analysis of the Nevada statute is unlikely to change the national (legal) landscape."

Sun reporter

Stephen Curran contributed to this story.