.........Renee Giachino
.........General Counsel and Sr. Vice Presidentice President

March 1, 2002

The Honorable Walter A. Stosch
General Assembly Building
910 Capitol Street, Room 621
Richmond, VA 23219

Re: House Bill No. 558, "Stand by Your Ad"

Dear Majority Leader Stosch:

On behalf of the Center for Individual Freedom, I am writing to express strong opposition to House Bill No. 558, "Stand by Your Ad," a bill which purports to reduce negative campaign advertisements by expanding the disclosure requirements in television, print and radio advertisements. We believe H.B. 558 infringes upon the constitutional rights of individuals who purchase political advertisements in Virginia and does not satisfy the requirements of the U.S. Constitution.

Specifically, many provisions of H.B. 558 would trample the rights of individuals to anonymously express potentially unpopular ideas and viewpoints. Indeed, the Framers of the Constitution clearly found this to be a significant and valuable component of the First Amendment. "There is little doubt that the Framers engaged in anonymous political writing. The essays in the Federalist Papers, published under the pseudonym of ‘Publius,’ are only the most famous example of the outpouring of anonymous political writing that occurred during the ratification of the Constitution." McIntyre v. Ohio Elections Commission, 514 U.S. 334, 360 (1995) (Thomas, J., concurring in the judgment).

In the context of speech and association, anonymity often is an essential element of protection for an individual’s free exercise of First Amendment rights. As the United States Supreme Court has repeatedly recognized, the deprivation of anonymity poses a significant burden upon and deterrent to both speech and association, particularly where an individual associates with a controversial group or voices an unpopular idea. In NAACP v. Alabama, for example, the Supreme Court observed that

357 U.S. 449, 462 (1958). Likewise in connection with speech, the Supreme Court has recognized that the "decision in favor of anonymity may be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one’s privacy as possible." McIntyre, 514 at 341-42 (1995). And as the Supreme Court noted in Talley v. California, 362 U.S. 60, 64 (1960), "[p]ersecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all." It is conceivable, for example, that an individual interested in the political debate in Virginia surrounding the confederate flag might want to pay for an advertisement espousing his/her views, but might not want his/her picture to appear on television with the advertisement. The threat of penalties for not including the expanded disclosures or the threat of harassment by including them would necessarily constrain his/her speech.

Because the proposed legislation contained in H.B. 558 would directly restrict or otherwise burden core political speech and associational rights and is facially a content-based restriction on political speech, the First Amendment provides its highest protection, and its most unforgiving scrutiny for restrictions on such speech. See, Meyer v. Grant, 486 U.S. 414, 425 (1988) (First Amendment protection of core election speech is "‘at its zenith’" and the burden to justify restrictions on such speech is "well-nigh insurmountable.") If there are any state interests that may overcome First Amendment protection of political speech, such interests must be of the absolute first order, consistently and rigorously defended by the state, and clearly and presently threatened in a demonstrable manner. "Where at all possible, government must curtail speech only to the degree necessary to meet the particular problem at hand, and must avoid infringing on speech that does not pose the danger that has prompted regulation." Federal Election Comm’n v. Massachusetts Citizens for Life, Inc., 479 U.S. 238, 265 (1986).

No such state interest exists here. The loss of anonymity coupled with the added expense of the expanded disclosure requirements is a significant burden not outweighed by any benefit to the State. In fact, the alleged State interest of reducing negative ad campaigns and deterring actual corruption or the appearance of corruption in the election process are addressed through less problematic measures. Virginia can and does meet the State’s substantial interests by expressly prohibiting fraud in campaign advertisements and retaining an arsenal of registration and reporting requirements to inform the public where the money for such advertisements comes from. With regard to such reporting requirements, the Supreme Court notes that "[t]hough such mandatory reporting undeniably impedes protected First Amendment activity, the intrusion is a far cry from compelled self-identification on all election-related writings." McIntyre, 514 U.S. at 355. The imposition of expanded disclosure requirements is overly burdensome and not narrowly tailored to serve an overriding state interest.

Further, the proposed legislation insults the intelligence of Virginians by assuming that they cannot evaluate the message in the absence of the expanded disclosures. "The simple interest in providing voters with additional relevant information does not justify a state requirement that a writer make statements or disclosures she would otherwise omit." Id. at 348.

For the foregoing reasons, we believe that passage of H.B. 558 would impose a burden on political expression that the State has failed to justify. We have attempted to objectively outline legal strictures and precedents in an effort to avoid costly and acrimonious litigation for taxpayers and ourselves. We strongly urge you to consider the constitutional implications of the proposed legislation and the likelihood of the proposal being overturned by a court.

The Center for Individual Freedom is a nonpartisan, non-profit organization with the mission to protect and defend individual freedoms and individual rights guaranteed by the U.S. Constitution, including, but not limited to free speech rights, property rights, privacy rights, freedom of association, and religious freedoms. Of particular importance to the Center are constitutional protections for the freedom of speech and association, including each citizen’s freedom to engage in anonymous speech and association in politics and other matters of interest.

Thank you for your consideration of our concerns.

Sincerely,

Renee Giachino

cc: Governor Mark Warner
cc: Attorney General Jerry Kilgore

Return to State Issues Index