The Threats to First Amendment Rights in S.C.

state house dome

HOW STATE LAWMAKERS CONTINUE TO STRIKE AT CITIZENS’ FIRST AMENDMENT FREEDOMS

Many Americans assume, wrongly, that their state legislatures deal mainly with low-level issues and that only Congress and the president deal with the really important matters of governance. Certainly in South Carolina, that’s an increasingly dangerous assumption. Indeed, the General Assembly has debated and passed measures that have direct bearing on the First Amendment of the U.S. Constitution. These measures have dealt in significant ways with South Carolinians’ freedoms of speech, assembly, and press.

The trend lines are not encouraging, and citizens would benefit from closely considering what their lawmakers have tried to do in recent years.

Politicians squelching their critics

Since 2014 every omnibus ethics bill has had an “electioneering” provision  designed to have a chilling effect on the right to criticize politicians.

This provision defines “electioneering” as virtually all communications that reference a candidate during a broad window before an election. Any individual or group that engages in electioneering would be required to file a report with the State Ethics Commission. That would, in turn, force the individual or group to disclose top donors.

Non-partisan organizations and individuals would in effect be barred from mentioning politicians within a broad window of time or risk exposing their donors to retaliation and intimidation from politicians. The United States Supreme Court ruled in NAACP v. Alabama that NAACP had “immunity from state scrutiny of membership lists” when Alabama tried to force the NAACP to handover its list of members. Legislators in South Carolina want the same information and for the same reasons.

Groups that shouldn’t have to disclose their donors, moreover, would face tougher reporting requirements than full-on political action committees that are directly involved in elections.

Under current law, speech that clearly seeks to influence the outcome of an election through a significant financial investment is regulated to protect the public from quid pro quo corruption. The courts have drawn a very clear line between protected political speech and political speech that “expressly advocate[s] the election or defeat of a clearly identified candidate.” As the Supreme Court stated in Buckley v. Valeo, the government interest in regulating political speech is related to corruption, defined as large contributions “given to secure a political quid pro quo from current and potential office holders.”

While this legislation would almost certainly invite a court challenge, given the precedent set by numerous rulings in favor of protected speech and issue advocacy, the greater concern is the chilling effect it would have on citizens’ and organizations’ willingness to speak out on public policy issues.

It is important to remember that transparency is for government and privacy is for citizens. If South Carolina legislators were to have their way the opposite would be true.

Putting committee testimony under oath

What started out as a proposed House rule has taken many different forms over the past two sessions – and even though it has been defeated each time, it will almost certainly return in 2017. The proposal would allow legislative committees and subcommittees to require anyone offering public testimony to speak under oath. Anyone who offers testimony a legislator deems willfully “false, materially misleading, or materially incomplete testimony” would be guilty of “contempt of the General Assembly.”

Since testimony is generally only taken at the subcommittee level it is very possible, were this bill to pass, as few as two legislators could turn an individual over to SLED and have them prosecuted. It’s hard not to conclude that the proposal is designed to scare citizens away from offering testimony critical of lawmakers and their decisions.

Citizen activists to register as lobbyists

Legislation filed last session would have required any citizen or a representative of any grassroots organization to register with the State Ethics Commission as a lobbyist and pay a $200 registration fee – forcing citizens to either stay silent or pay a fee to talk to their elected officials.

Registration would be required before delivering testimony at a legislative committee or subcommittee, and before speaking at a public hearing on a local ordinance or initiative. In essence, merely speaking to politicians in public forums would require government permission and a fee.

The measure passed the House Judiciary Committee.

Forcing journalists to register with the government

A 2016 bill would have required all journalists to register with the Secretary of State.

Practicing journalism without authorization would be punishable by escalating penalties, the heaviest being a third-offense penalty of a maximum $500 fine or 30 days in jail, or both.

After an extended period of much scrutiny and national media attention, the bill’s sponsor claimed it was a joke. It wasn’t clear, however, from his initial explanation that it was a joke, and in any case – “joke” or not – it was a flagrant instance of using the law to intimidate private citizens into keeping quiet.

Restricting protests

Two bills filed in 2016 would have restricted citizens’ right to protest at the State House. Under the guise of safety concerns, the regulations for use of the State House grounds would have escalated from a low-key reservation process to a more tightly-regulated permitting process. Among other regulations, the State Law Enforcement Division and the Department of Public Safety would review any application before the Department of Administration could approve it, and law enforcement would have been authorized to remove individuals from the State House grounds if the individuals’ “continued presence and activity [were] a threat to public security, health or well-being.”

This approach represents a fundamental shift from the right of citizens to protest at the seat of their government, to a requirement that individuals must ask for and receive government approval.

A similar bill aimed at Occupy protestors was filed in 2012 and would have prohibited camping, sleeping, etc. on the State House grounds – despite the fact that there were already laws on defacement of public property.

Only two years ago the state was successfully sued by protesters arrested for trespassing on the State House grounds. The courts ordered the state to pay $192,000 to the protesters for violating their First Amendment rights.

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No one is arguing that the right to free speech is so inviolable that government can never regulate it. But government may only regulate a constitutional right in extraordinary and narrowly defined circumstances in which regulating that right is the only way another right may be protected. South Carolina lawmakers have not made that case in any of the instances cited above. The trend toward more attempts at abridging free speech continues, and citizens should treat it for what it is – a threat to their First Amendment freedoms.

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