Political ‘speech police’ debate rests with judge

Jace Radke

Friday, Feb. 25, 2005 | 9:52 a.m.

A federal judge could decide next week if it is unconstitutional for the state Ethics Commission to serve as arbiter of speech made about political candidates.

U.S District Judge Lloyd George heard motions for summary judgment Thursday in a suit brought by the American Civil Liberties Union of Nevada, the Nevada Press Association and legislators from both sides of the aisle looking to force the commission to give up its "speech police" power.

"The idea of a government truth squad is outrageous," ACLU attorney Allen Lichtenstein said as he asked George to find the Nevada law allowing the commission to judge speech and impose $5,000 fines be found unconstitutional. "The potential of stifling speech through this law is immense."

Lichtenstein argued that the current law is overbroad and could include members of the press being brought before the commission if a candidate were to file a complaint against language used by a newspaper.

He also pointed out that the statute calls for those accused of making libelous statements to be given only two days' notice of a hearing before the commission, and does not require that the defendant be informed of the accusations they are facing. Lichtenstein said that these issues bring up questions of due process for what he called a "quasi-judicial commission" developed to circumvent the rules of a court.

Elizabeth Macias Quillin, regional chief deputy attorney general for Nevada, said that those accused of ethics violations can ask the commission for a 15-day extension. She added that the burden of proof is on the complainant and that for a fine to be levied the commission must determine that the speech in question was intended to impede the outcome of the election, and that it actually did impede the outcome.

Quillin argued that the intent of the commission is not to provide extra safeguards for political candidates from disfavored speech.

"The intent is not to protect the candidates, it's to protect the voting public from a barrage of information and misinformation right before the election," Quillin said.

Lichtenstein said that it is unconstitutional for the commission to determine the flow of information.

George indicated to the attorneys that he did not have a trial scheduled for next week, and that he might be able to issue a ruling then.

He added that he had concerns regarding whether or not the statute the commission operates under violates due process.