TALLAHASSEE, Fla. — Libertarian lawyers are challenging a Florida law they claim violates free speech by forcing groups that merely mention political issues or candidates to register with the state.
The attorneys filed suit Oct. 8 on behalf of the Broward Coalition of Condominium, Homeowners and Community Organizations, the National Taxpayers Union and the University of Florida's College Libertarians.
The suit claims the 2004 law violates the First Amendment because it requires groups to register and submit financial reports if they spend or collect more than $500 for "electioneering." That term means describing or referring to an issue or candidate in a newsletter or other communication without taking a position. Groups that make endorsements are covered by another section of the law on political committees, which is not being challenged.
Robert Gall, an attorney for the libertarian legal organization Institute for Justice, said the lawyers wanted the federal court to block enforcement of the electioneering provision before the Nov. 4 election. It is the most extreme example of a national trend to restrict political speech under the guise of campaign-finance regulation, Gall said. He noted violations could result in fines or even jail time. No one has been penalized so far, he said, but the mere threat is having a chilling effect on political speech.
"Florida has taken the regulation of political speech to new and ridiculous lengths, now sweeping in even nonpolitical groups and leaving practically no room for discussion of political issues by ordinary citizens," Gall said.
Gov. Charlie Crist said he would "leave it to the judiciary" to decide the issue.
American Civil Liberties Union lawyer Robert Rivas, who is not involved in the case, said he thought the suit had a good chance of succeeding. He cited a 5-4 U.S Supreme Court decision in a Wisconsin case last year where the justices ruled the federal McCain-Feingold campaign-finance law did not prevent the airing of issue ads that stop short of explicitly calling for the defeat of candidates or issues. The ruling involved two consolidated cases, FEC v. Wisconsin Right to Life and McCain v. Wisconsin Right to Life.
The suit acknowledges the law makes exceptions for election-related statements in newsletters distributed only to members of groups in existence before candidates qualified or issues were put on the ballot. It also excludes statements made in the news media and debates or forums that include at least two opposing candidates or one advocate of each side of an issue.
The law defines electioneering communications organizations as groups whose activities are limited to accepting or spending contributions for electioneering communications.
Gall said that might seem to exempt his clients because electioneering isn't their only activity, but he cited an advisory opinion issued in June by the Department of State. It says the Institute for Justice, based in Arlington, Va., must register as an electioneering organization or create a separate organization that would have to do so in order to distribute material in Florida about a proposed state constitutional amendment. The ACLU's Rivas, though, said the opinion did not apply to Florida-based groups. It says the institute must register because its only Florida activity is electioneering, he said.
Charlotte Greenbarg, president of the Broward coalition, said she knew nothing about the law until approached by the Institute for Justice. Since then her nonprofit group has stopped sponsoring issue and candidate forums.
"We make a very strong point about not being partisan," Greenbarg said. "All we want to do is discuss the issues and talk to the candidates."
Kristina Rasmussen, director of government affairs for the National Taxpayers Union, said her organization had left Florida out of its national guide on fiscal ballot issues because it was afraid of violating the law.