The New Threat to Free Political Speech

The boss of you.
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It’s said that tough cases make bad law. If so, Maryland’s prosecution of Dennis Fusaro and Stephen Waters for campaign finance law violations threatens to make some really bad law. The prosecutors themselves believe the case will “justify burdening speech and associational rights” under the First Amendment to the U.S. Constitution and article 10 of the Maryland State Constitution’s Declaration of Rights. The latter promises “That freedom of speech and debate, or proceedings in the Legislature, ought not to be impeached in any Court of Judicature.”

The case stems from a county council race in Anne Arundel County, Maryland in 2014 between 2004 Constitution Party candidate for president Michael Peroutka and Democrat Patrick Michael Armstrong. Peroutka won the race after the following anonymous robocall was sent to approximately 5,000 Anne Arundel County voters:

“Hello, what a great opportunity for the LGBT community. We have a true believer for our cause in Patrick Armstrong who’s running for County Council in Anne Arundel County, Maryland. Call Patrick today and thank him for his bravery in coming out of the closet. Coming out of the closet and supporting the fairness to all Marylander’s Act, the Maryland State Senate Bill 212, and supporting the rights for all transgenders. Transgenders can now openly and freely go into any bathroom of their choice based on their confused gender identity. Tell Patrick to continue to stand loud and proud in support for transgenders’ equal rights. While our opponent argued that children could be at risk by sexual predators with this new law, we celebrate the rights of transgenders and what this does for equality for transgenders in Maryland. Call him today at 410-***-**** and thank him for supporting the bathroom bill. Paid for and authorized by Marylander’s for Transgenders.”

The satirically written phone message – “Marylanders for Transgenders” doesn’t exist – accurately related Armstrong’s position with regard to the “bathroom bill” then before the county (and his already very public sexual preference), but failed to disclose who had paid for the robocall. Authorities eventually arrested Peroutka’s campaign advisor Dennis Fusaro, as well as Stephen Waters, both political professionals, and charged them with violating Maryland’s campaign finance laws. The robocall cost less than $200 to set up. Fusaro, the judge concluded, had purchased the phone used for the robocall and Waters set up the robocall after Peroutka had rejected the idea of the call for his campaign. (Peroutka testified at trial for the prosecution and testified he didn’t know about the call until after the election.) Both Fusaro and Waters were convicted in a bench trial February 22, given a $1,000 fine, 60 days in prison and three years probation. The case is currently under appeal.

Wither the right to anonymous political speech?
The case is important for defending anonymous political speech, and America has a long tradition of anonymous political speech going back to Samuel Adams writing against the British as “Vindex” in Boston newspapers, the Federalist Papers, Anti-Federalist Papers, and the Jefferson/Hamilton correspondence over Washington’s Neutrality Proclamation as Americanus, Pacificus and Americanus. But District Judge John P. McKenna, Jr. would criminalize anyone who engages in the modernized version of pampleteering like the Federalist Papers. “The voters of Anne Arundel County had a right to judge the content of that robocall for themselves and make up their own mind as to whether or not it bears any weight,” McKenna said during sentencing. “But they (also) had the right to know who was behind the call.”

One of several interesting details about the case is that none of the actions, spending or speech took place inside the State of Maryland. Prosecutors claim that Fusaro bought the phone used for the call at a Virginia Wal-Mart and had Waters set up the robocall from Virginia with a Canadian company. In short, Maryland is claiming that it can regulate political speech initiated in other states. The prosecution statement against dismissing the case actually claimed regulating out-of-state political speech was a feature, rather than a bug, of their case, stating: “This is not a case of ‘an individual leafleteer who, within her local community, spoke her mind, but sometimes not her name.'” Indeed, the Federalist Papers analogy goes one step further; none of the Federalist Papers (or, for that matter, the Anti-Federalist Papers) were written in Maryland by Marylanders, and yet were reprinted widely in local papers and printed on broadside pamphlets. One might quibble that the quality level of the content in the robocall was of a different level from the Federalist Papers, but the regulatory regime set up to prohibit anonymous political speech is identical and equally applicable to all forms of anonymous political speech regardless of perceived quality.

Overly broad laws and selective prosecution
Judge McKenna acknowledged in his February 22 decision of Maryland’s election disclosure law encompasses just about every kind of political speech: “There is no question that the definition contained in §1-101(k), at first blush, seems broad.” He added that “While Citizens United upheld limited disclosure requirements, it did so because Congress specifically drafted the Bipartisan Campaign Reform Act (“BCRA”) to apply to limited forms of communications that were easily identifiable and only when high-dollar thresholds had been met.”

But in the Fusaro/Waters case, there’s no high-dollar threshold, unless a couple of hundred dollars counts as “high-dollar.” McKenna, Jr.’s February 22 decision documented only the purchase of a cell phone in a Federicksburg, Virginia Wal-Mart for less than $100, and noted that the total cost of the robocall – including the cost of the phone and use of the Canadian robocall firm Impact Strategies to make the calls – was less than $200. Maryland’s election law calls for disclosure of any expenditures of more than $100, though Maryland’s Capital Gazette newspaper’s endorsement of Peroutka’s opponent contained no formal disclosure statement. But while multi-billion dollar corporate media empires (the Capital Gazette is owned by the giant Tribune Media conglomerate) and pay to deliver their endorsement to tens of thousands of voters, politicians are cracking down on small-time operators. And the reason is clear: Little people are having a bigger impact than the giant established media empires that back big government incumbents, which explains why the IRS went after fledgling Tea Party groups in the wake of the 2010 Tea Party revolution.

Waters and Fusaro’s lawyers have argued that the communication was targeted outside of existing law, noting that the law had limited to disclosure to official campaigns and expressed advocacy where the political message was to vote for or against a specific candidate. The Fusaro-Waters robocall above did not make an expressed advocacy. The defense argued that “This narrowing construction (or, more accurately, redefinition) borders on parody. The State does not explain how this excludes political posts on social media, e-mails, or dozens of other forms of speech that each occur thousands of times a day in Maryland and cannot be required to include disclaimers.” Of course, those disclaimers may be on the docket in the future if this case goes forward.

The defense attorneys argued in their consolidated reply for dismissal that “Because the Election Law Article’s disclaimer requirements are so broad, it is not a campaign finance regulation, but a political speech regime. Because it is not tied to money spent on election campaigns and forces political actors to speak, it is a content-based restriction that must be subjected to strict scrutiny.”

Soviet dictator V.I. Lenin has been paraphrased as saying that politics is about “who does what to whom for whose benefit?” and not abstract principles of justice. And there’s a bit of that in practice among prosecutors of this case. Fusaro’s attorney Benjamin Barr, of the Pillar of Law Institute, told the Libertarian Institute that another issue the court failed to consider was the selective prosecution issue. Barr noted that he had brought before the court a large number of robocall cases – including Americans for Job Security and others on both the political left and right – none of which were prosecuted. Why are only Fusaro and Waters being prosecuted by state Prosecutor Emmet Davitt? They were likely prosecuted for the presumably unpopular and politically incorrect content of their call, and not for crossing some bright line campaign finance law.

A history of intimidation and harassment
The U.S. Supreme Court observed of disclosure laws directed against civilians in the 1976 Buckley v. Valeo case that “we have repeatedly found that compelled disclosure, in itself, can seriously infringe on privacy of association and belief guaranteed by the First Amendment.” Transparency laws have generally been a ruse for intimidation. This goes back to the 1958 case of the National Association for the Advancement of Colored People v. Patterson, when the State of Alabama demanded the membership and donor rosters of the local NAACP during the height of the civil rights movement. The court ruled in that case disclosure would effectively publish a hit-list for the then-very active local Ku Klux Klan terrorist cells: “A requirement that adherents of particular religious faiths or political parties wear identifying armbands, for example, is obviously of this nature. Compelled disclosure of membership in an organization engaged in advocacy of particular beliefs is of the same order. Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs….Petitioner has made an uncontroverted showing that, on past occasions, revelation of the identity of its rank-and-file members has exposed these members to economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility.”

While some may scoff at the comparison between NAACP donor disclosure in the midst of Ku Klux Klan-inspired violence during the height of civil rights movement furor and a robocall involving a county council race today, gender issues have a recent history of violence and intimidation in the United States. This was especially true with California’s Proposition 8, a move to define marriage as between one man and one woman in 2008. Brendan Eich, co-founder of Mozilla, donated $1,000 to the campaign for Prop. 8, and was forced to step down from his job because people objected to the donation once it was exposed publicly. Police were called to a Los Angeles restaurant and donned riot gear after a local restaurateur had been revealed on-line to have donated to Prop. 8. Supreme Court Justice Clarence Thomas noted this wave of violence in the wake of Prop. 8 disclosure in his concurrence in the Citizens United case:

“Some opponents of Proposition 8 compiled this information and created Web sites with maps showing the locations of homes or businesses of Proposition 8 supporters. Many supporters (or their customers) suffered property damage, or threats of physical violence or death, as a result. They cited these incidents in a complaint they filed after the 2008 election, seeking to invalidate California’s mandatory disclosure laws. Supporters recounted being told: “Consider yourself lucky. If I had a gun I would have gunned you down along with each and every other supporter,” or, “we have plans for you and your friends.””

The Fusaro/Waters case also has several side issues, which is to say, distractions. Patrick Armstrong stressed in a Facebook post the facts of the robocall were accurate and that the robocall had improperly brought his parents into the race:

“Point of clarification: I don’t want this story to be taken the wrong way.
My problem with the robocall is not the linking of me to a law that protects the transgender community, not at all!
My many problems with the call are as follows:
1) It smeared the transgender community, citing a “confused gender identity” and suggested that they are child sex predators.
2) It mocked me, my sexuality, and the transgender community.
3) It provided my parent’s home phone number and asked people to call it.
4)It broke the law, failing to identify who authorized and paid for it.
I stand with the transgender community because no one deserves to be bullied and I stand up to bullies. No one deserves to be mocked or made fun of for being who they are. If someone doesn’t understand sexuality or sexual identity, or if it scares them as it scares many conservatives, they do not then have the right to bully. Not understanding, or misunderstanding, is not a free pass to attack anyone. I am proud to represent the G in LGBT, and I am proud to defend those who are in the T of LGBT. Live and let live, mind your business, and never, ever bully anyone. Point clarified.”

Armstrong’s complaint about the phone number on the robocall being his parent’s home number is technically accurate: Armstrong lived at home with his parents, and listed his home address as a contact address on his official registration with the State of Maryland’s State Board of Elections. Armstrong did, however, supply a different contact phone number on his official state election form, so Waters could have used that number as a contact number on the robocall if he had gone to Armstrong’s filing with the state. But it’s a bit of a stretch to claim that his parents were targeted by the robocall, as Armstrong has charged, since a simple web search for Patrick Michael Armstrong comes up with his home number (which doubles as his parents’ number).

Making the claim that Fusaro and Waters dragged Armstrong’s family into the race doesn’t directly change the court proceedings, but it does prejudice most people against the defendants for engaging in unpopular speech – the only kind of speech that traditionally needs legal protection.

The other wrinkle in the case is that the person who initiated the speech was Fusaro, who had been a paid advisor to a political campaign. Peroutka had explicitly rejected the robocall during a campaign meeting, Judge McKenna noted, and there was no claim that this was a “wink, wink” off-the-books campaign operation by Peroutka. But Fusaro did receive a $2,000 bonus for winning the campaign, and the judge believed the robocall was an attempt by Fusaro to win the bonus by winning the campaign. But does a person give up his freedom of speech upon contracting to work on a political campaign? Maryland’s prosecutors evidently think so. “These laws that require disclosure are very important to ensure the integrity of the election process,” Prosecutor Emmet Davitt, a longtime donor to Democratic Party political causes, claimed. “We want the message out that it’s not just a matter of a rule or a dirty trick – that it’s against the law. And we hope it sends a message that, if you can’t obey the laws, kindly stay the hell out of Maryland.” But of course, Fusaro is being prosecuted for what he did when he wasn’t in Maryland at all.

“You have a chance to make an impact and send a message,” Davitt said in an interview for the Washington Post before the trial got underway. “We have a fantastic democracy, but people have to play by the rules.” But the real message being sent is by this case is that if you engage in the right kind of anonymous political speech, you’re safe from prosecution, but if you engage in spreading the “wrong” political opinions, you might find yourself in legal jeopardy.

Full disclosure: Though I have never met Dennis Fusaro face-to-face, I have corresponded with him by phone off and on since the 1990s when he was state and local affairs coordinator for Gun Owners of America and I was the director of research for The New American magazine.

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Read Scott Horton's new book Fool's Errand: Time to End the War in Afghanistan