no-free-speech-imageNew Mexico’s nonprofit community has, until recently, assumed its members were free to speak out on matters of public importance and even — gasp! — to criticize elected officials without submitting to government oversight.

This assumption has come under attack recently, by a few elected officials, disgruntled politicians, local bloggers like Joe Monahan and, most vociferously, by the Albuquerque Journal.

Their view, in a nutshell, is that if nonprofit organizations like New Mexico Youth Organized or the Southwest Organizing Project are going to criticize elected officials, they should submit to regulation under New Mexico’s campaign finance law. That law requires any organization devoted to electioneering during an election campaign to register with, pay a fee to, and make full disclosure to the New Mexico Secretary of State. In the view of the Albuquerque Journal et al., no one gets to criticize elected officials unless they also submit to regulation by the Secretary of State or the City of Albuquerque.

Their view appears to be driven by the idea that anything that is “political” necessarily relates to elections and, accordingly, the campaign finance laws must apply.

But their view is at war with the First Amendment to the United States Constitution, as repeatedly explained and articulated by the Supreme Court.

This is not Russia or China. It is the United States of America, where citizens are free to criticize their elected officials without registering with the government. Let us explain.

It is of course political to speak out on any important matter, from the proper location of a growers’ market to the need for universal health care. Speaking out on such matters often includes criticizing elected officials. Indeed, criticizing elected officials for a myriad of reasons has been the mother’s milk of the Albuquerque Journal and Joe Monahan.

Any time an individual or an organization speaks out, the individual or organization is engaging in “politics.” But their speech is protected by the Constitution. It’s called free speech.

If a person or organization can be required to register, pay a fee, report their activities and expenditures, organize in a certain way or disclose all their sources of income as a condition of criticizing public officials, it is a significant burden on the organization’s free speech. The Supreme Court has repeatedly emphasized this and has repeatedly forbidden governments from imposing such burdens on people or organizations that speak out and criticize elected officials.

The Supreme Court has allowed regulation, under campaign finance laws, as a narrow exception to the general rule. But it has allowed this only to apply to candidates, committees controlled by candidates and other groups, but only if these other groups engage in “speech” (in the form of a broadcast, billboard, mailing, etc.) that occurs during election season and only if the speech has no other possible interpretation than as an explicit plea that people vote for or against a particular candidate in a particular election. In other words, the only speech that can be regulated is speech that is unambiguously electioneering.

The Supreme Court has allowed the narrow exception for election campaign communications because it has appropriately concluded that there is a compelling interest in reporting and disclosure of the use of funds, and sources of funds, to elect or defeat particular candidates for office in a particular election.

A communication merely criticizing an elected official does not fall in this category, and therefore, neither New Mexico Youth Organized nor the Southwest Organizing Project, nor their now notorious mailings, fall in this category.

 

Editor’s note: John Boyd and Sara Berger are attorneys with Freedman, Boyd, Hollander, Goldberg and Ives, P.A., a law firm in Albuquerque. One of their clients, the Center for Civic Policy, helped NMI locate funding sources when the Web site started up last year.