State of Elections

William & Mary Law School | Election Law Society

Tag: free speech

Balancing Nonpartisan Judicial Elections with Candidates’ First Amendment Rights in Kentucky

 

By: Carrie Mattingly

In Kentucky, all state court judges are elected in nonpartisan elections. Kentucky’s Code of Judicial Conduct seeks to keep candidates on nonpartisan message. But the 6th Circuit Court of Appeals recently struck down some judicial campaign restrictions on First Amendment grounds.

One sitting and two aspiring Kentucky judges brought suit to stop the enforcement of these judicial canons against them. Robert A. Winter, Jr. distributed campaign literature identifying himself as a “lifelong Republican,” and he received a letter stating that this literature may have violated the canon prohibiting campaigning “as a member of a political organization.” Judge Allison Jones asked voters to “re-elect” her, even though she was initially appointed to her seat, and pledged to provide stiff penalties for heroin dealers if elected. She also received a letter stating that her “re-elect” statement may have violated the canon prohibiting “false and misleading statements” and that her “stiff penalties” comment may have been an impermissible “commitment” inconsistent with the impartial performance of judicial duties. Finally, Judge Cameron J. Blau wished to give speeches supporting the Republican Party, to hold Republican fundraisers, to seek and receive Republican endorsements, and to donate to candidates and to the party, but he refrained in fear of sanctions.

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Robo-calls, in Montana and Elsewhere

By: Cameron Boster

           Background

Missoula, Montana, is a beautiful city. There are mountains in the distance, tall, deep-green trees everywhere, old buildings – and a rocky, white-swirling river moving through it. No reasonable person seeing Missoula for the first time would think to focus on the city’s current robo-call election law controversy.

This month, parents of students enrolled in Missoula’s schools received automated phone calls containing a message from Missoula’s mayor, John Engen. The content of the message is available on Youtube. In short, the message urges parents to vote on an upcoming bond, tells them where and how they can cast their ballot, and ends with this encouragement: “Thank you for everything you do to support your children, and to ensure a positive future for your family – and our wonderful community.”

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Massachusetts Rules against Ban on Lying in Campaigns

By: David Schlosser

Over the summer of 2015, a Massachusetts law banning lying in campaign ads was struck down by that state’s highest court. This decision mirrors that of an Ohio federal judge last year, a case previously covered on this blog by Sarah Wiley. Like the Ohio law, the Massachusetts law criminalized telling lies about candidates for political office, and was as on the books for several decades before being successfully challenged in court. The lawsuit arose when a Democratic state representative alleged that a right-leaning PAC lied in a campaign brochure. The brochure in question alleged that Rep. Brian Mannal sponsored a bill that would “help convicted sex offenders” because he—as a defense attorney who had represented sex offenders in the past—stood to profit. Mannal maintained that he never provided legal representation to sex offenders. One of the bills in question would make GPS tracking devices optional for sex offenders on parole, rather than mandatory. After filing the bill in 2013, Mannal reported that he received death threats.

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Fighting for the First Amendment in Campaigns: Free Speech in Wyoming

by Kathleen Imbriglia

The regulation of campaigns is controversial, weighing the interests to prevent corruption and promote disclosure while protecting the First Amendment’s fundamental right to free speech. Such tension is exemplified by the ongoing suit, Free Speech v. Federal Election Commission, filed in the Tenth Circuit Court of Appeals by the Wyoming-based organization, Free Speech. Free Speech first filed a suit in June arguing their advertisements are considered “issue advertisements” and that they should not be subject to the ambiguous reach of the U.S. federal regulation, 11 C.F.R. § 100.22(b). However, on October 3, 2012, Federal District Judge Skavdahl upheld the regulation, deeming it to not be overly vague or uncertain on the grounds that it is consistent with the functional equivalence test. In response, Free Speech filed a motion for emergency injunction so as to allow Free Speech’s campaign advertisements to run prior to the 2012 federal election. The Tenth Circuit Court of Appeals denied the motion and the case is currently awaiting appeal. Continue reading

Free Speech: Wyoming organization attacks vague FEC regulations

by Kathleen Imbriglia

The First Amendment  guarantees freedom of speech and is a hallmark of the United States Constitution. It is one Americans deeply revere and protect, attacking those attempting to abridge this right. The Federal Election Commission has been aggressively defending its regulations and case-by-case analysis determination of which groups must register as Political Action Committees (PACs). In a recent case, Free Speech v. Federal Election Committee, decided on October 3, 2012, Federal District Court of Wyoming Judge Scott Skavdahl upheld the Federal Election Committee’s regulations concerning disclosure and registration as a Political Action Committee (PAC). In denying the Wyoming-based organization, Free Speech, a preliminary injunction to continue running their advertisements, Judge Skavdahl upholds precedent regarding the validity of the Commission’s regulations, finding the definition of 11 C.F.R. § 100.22(b) is not overly vague or uncertain. Continue reading

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