Court weighs ‘chilling effect’ in grassroots ballot fight

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Angered by a ballot proposal that they considered an “affront” to property rights, four southwest Florida residents in 2010 decided to pool $600 and buy local radio ads to fight the measure, reports Jim Saunders of the News Service of Florida.

But with state law requiring them to form a political committee and provide information about their activities, the residents of Sarasota and Charlotte counties ultimately decided against running the 30-second ads. And now, three of the residents are asking a federal appeals court to declare that the state law violates First Amendment rights.

The 11th U.S. Circuit Court of Appeals in Atlanta is scheduled Tuesday to hear arguments in the case, with the residents hoping for a reversal of a decision last year by U.S. District Judge Robert Hinkle. Their attorneys wrote in a brief that the law had a “chilling effect” on the residents.

“In Florida, grassroots groups that wish to speak out about ballot issues face a choice: They may either speak through a heavily regulated PAC and devote a substantial proportion of their message to a government-mandated disclaimer or they may remain silent,” the brief said. “That compelled choice is unconstitutional.”

But attorneys for Secretary of State Ken Detzner and the Florida Elections Commission responded that the state is justified in requiring disclosures of information about contributions and expenditures and in requiring that committees include identifying disclaimers on ads.

“These statutes serve Florida’s well-recognized and sufficiently important government interest to inform the electorate as to who is speaking to them about their vote to amend the Florida Constitution,” the state’s attorneys wrote.

The case stems from a failed 2010 ballot initiative, commonly known as “Florida Hometown Democracy,” which would have required referendums before changes could be made to local land-use plans. While backers of the amendment touted it as a way to give citizens more influence in development-related decisions, the measure was opposed by business groups that said it would hurt economic development.

The southwest Florida residents — Andrew Nathan Worley, Pat Wayman, John Scolaro and Robin Stublen — wanted to each chip in $150 to buy advertising on a local talk-radio station, according to court documents. The $600 total would have allowed them to run 30 ads at $20 apiece, though they also were prepared to accept money from other people to run additional ads.

“Plaintiffs considered Amendment 4 (the Hometown Democracy amendment) an affront to property rights that would have had a devastating effect on Florida’s economy,” said an appeals-court brief for the residents, who are represented, at least in part, by a national legal group called the Institute for Justice.

Under state law, however, the residents would have been required to register a political committee, open a campaign account and file financial reports. Also, the ads would have needed disclaimers identifying the committee, which a court brief said would take up about six seconds of the 30-second spots.

“Ultimately, plaintiffs considered these burdens so significant that they did not run their proposed advertisement,” a brief said.

While all four residents initially filed the lawsuit, Stublen later left the case. In his ruling last year, Hinkle concluded that requirements in state law do not impose an “unconstitutional burden” on speech.

“Each plaintiff is free to speak as much as the plaintiff chooses and need not register as a political committee in order to do so,” Hinkle wrote. “It is only the plaintiffs’ decision to act jointly — and to pool their funds — that triggers the application of the Florida political-committee provisions. The law has long recognized, in many contexts including this one, that there is a difference between individual and joint action.”

Peter Schorsch is the President of Extensive Enterprises and is the publisher of some of Florida’s most influential new media websites, including SaintPetersBlog.com, FloridaPolitics.com, ContextFlorida.com, and Sunburn, the morning read of what’s hot in Florida politics. SaintPetersBlog has for three years running been ranked by the Washington Post as the best state-based blog in Florida. In addition to his publishing efforts, Peter is a political consultant to several of the state’s largest governmental affairs and public relations firms. Peter lives in St. Petersburg with his wife, Michelle, and their daughter, Ella.